¶1I find it unnecessary in this case to decide whether the Garcia/Connecticut v. Johnson “concession” exception is conditioned on the defendant’s having known the “intent instruction” was in fact erroneous. Even assuming (as the dissent contends) it is not so conditioned, in my view there was no such concession here. Contrary to the situation in Krzeminski v. Perini (6th Cir. 1980) 614 F.2d 121, 125, and Washington v. Harris (2d Cir. 1981) 650 F.2d 447, 453-454 (on which the Connecticut v. Johnson court relied in illustrating the intent conceded exception, 460 U.S. 73, 87 [74 L.Ed.2d 823, 103 S.Ct. 969]), defense counsel’s argument that his client intended to kill was inconsistent with defendant’s own version of the killing as shown by penalty phase testimony. Taking the lead from Krzeminskiand Washington, I would apply the “concession exception” only if the concession is consistent with the defendant’s version of the crime. Subject to the foregoing reservation, I concur in the majority opinion.
¶2I concur in the judgment to the extent it affirms defendant’s guilt conviction. I dissent, however, to the setting aside of the special cir-
¶3*314cumstances finding and penalty judgment. For the reasons stated in part I of Justice Mosk’s concurring and dissenting opinion, defendant’s concession of an intent to kill satisfies the Carlos/Garcia rule.