Can a defendant argue that awareness of pain was not an element of the torture-murder special circumstance?

We rejected such an argument in People v. Davenport, supra, 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861, holding, in effect, that the elements of the torture-murder special circumstance included that "the perpetrator intentionally perform[] acts which [are] calculated to cause extreme physical pain to the victim" and not that the victim actually experience such pain. (Id., at p. 271, 221 Cal.Rptr. 794, 710 P.2d 861.) To the extent defendant argues that the jury might have believed that awareness of pain was not an element, there is no error because awareness of pain is, indeed, not an element. To the extent defendant argues the jury might have believed that awareness of pain was an element, there is still no error because finding an additional but unnecessary "element" could accrue only to his benefit.²⁴

b. Failure to instruct on intoxication and mental disease relating to intent to torture for the torture-murder special circumstance