In what circumstances will a jury at the guilt/special circumstance phase of a murder case be able to establish a torture-murder special circumstance?

In instructing the jury at the guilt/special circumstance phase, the court gave instructions on both torture-murder and on the torture-murder special circumstance. In defining torture-murder, the court made clear that "[a] necessary mental state in murder by torture is the specific intent to cause cruel pain and suffering...." Although in some cases there may be reason to doubt that the jury understood that the "infliction of torture" element in the torture-murder special circumstance embodies the same intent-to-cause-cruel-pain element as in torture-murder, nothing in the present record suggests the jury in this case was likely to have drawn any such distinction in the use of the term "torture" in the two instructions. Indeed, the prosecutor in closing argument specifically explained to the jury that the torture-murder special circumstance required essentially the same showing as torture-murder itself, plus the single additional element of an intent to kill. And neither the prosecutor nor defense counsel suggested at any point that a torture-murder special circumstance could be established without first proving an intent to torture. Under these circumstances, we are confident that the jury understood the basic elements of the torture-murder special circumstance, and that the special circumstance finding was not based on a mere accidental or unintentional infliction of cruel pain.

People v. Wade, 750 P.2d 794, 805 (Cal.) (footnotes omitted), cert. denied, 488 U.S. 900 (1988).