In what circumstances will the Court vacate the torture-murder finding?

Further, I believe that the torture-murder special circumstance finding must also be vacated. Like the majority, I am of the opinion that the trial court erred by instructing the jury as it did: intent to torture--i.e., intent to inflict extreme physical pain--is an element of this special circumstance (People v. Davenport (1985) 41 Cal.3d 247, 260-271, 221 Cal.Rptr. 794, 710 P.2d 861); the court, however, failed to so instruct. But unlike the majority I cannot conclude the error was harmless. Having reviewed the record in its entirety, I am simply unable to declare a belief, beyond a reasonable doubt, that the jury would have found an intent to inflict extreme physical pain had they been properly instructed. The evidence is clear in showing that defendant intended to kill the victim: his use of the belt, the hammer, and the knife compels the conclusion. But the evidence is far from clear in revealing whether he intended to inflict extreme physical pain.