The opinion
KAUS, J.
I concur. I agree that it is appropriate to apply the Sedeño exception in this case to “cure” the Carlos error. There may, however, be other situations in which application of Sedeño would be inappropriate. In *930 a capital case the defendant’s paramount concern is, of course, to avoid a death sentence. Thus there may well be instances in which the record shows that as a result of the defendant’s pre-Carlos impression that the People need not prove intent to kill as an element of a felony-murder special circumstance, the defendant decided to forego any attempt at raising a reasonable doubt on intent to kill in connection with some other charge, believing that his only chance to escape a death sentence lay in avoiding the felony-murder charge altogether. There may also be cases in which it appears that the defendant decided against contesting intent to kill as a result of an erroneous trial court ruling. (See, e.g., People v. Ramos (1984) 37 Cal.3d 136 at pp. 147-148, fn. 2 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ].) When the record thus establishes that the defendant did not present relevant evidence on intent because of a mistake as to the applicable legal principles, it would, of course, be inappropriate to apply Sedeño.
In this case, however, there is no indication in the record that defendant failed to contest the intent-to-kill issue because of his mistaken belief that the robbery-murder special circumstance would trigger a penalty trial in any event. If defendant has evidence which he withheld because he was misled on the significance of the intent-to-kill issue, he may, of course, seek to present it in a habeas corpus proceeding.
Bird, C. J., Broussard, J., and Reynoso, J., concurred.
Appellant’s petition for a rehearing was denied October 31, 1985.