Can the torture-murder special circumstance be established without first proving an act of torture?

Finally, at no time was it suggested to the jury that the torture-murder special circumstance could be established without first proving an act of torture. To the contrary, the prosecutor's closing argument confirmed that the torture-murder special circumstance required the infliction of an act or acts of torture: If you find a first degree murder, and only if you find a first degree murder, then you look to the two special circumstances, and that's that the murder was intentional and done with either poison or involved torture. And I say involved torture. It doesn't imply torturous acts killed the child but they are a cause.... To find a special circumstance true, you have to find there was an intent to kill coupled with the poison or coupled with the torture. That's the difference. (See People v. Wade (1988) 44 Cal.3d 975, 994, 244 Cal.Rptr. 905, 750 P.2d 794 [the jury was not misled by omission of the intent-to-torture element in the torture-murder special-circumstance instruction, in part because the prosecution specifically explained to the jury that the special circumstance required an intent to kill].)

In light of these circumstances, we are satisfied beyond a reasonable doubt that the trial court's error in omitting the actus reus requirement from the torture-murder special-circumstance instruction did not contribute to the jury's true finding on this issue. ( People v. Mayfield, supra, 14 Cal.4th at p. 774, 60 Cal.Rptr.2d 1, 928 P.2d 485 [ To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. [Citation.]].)

[50 Cal.4th 679]