"When the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed." Id.

Justice Scalia advanced this analysis as a way of reconciling Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), Connecticut v. Johnson, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983), and Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). In Sandstrom, the Court held that a jury instruction violated due process because it required the jury to presume an element of the crime, but the Court refused to decide whether harmless error analysis was appropriate. In Johnson, a plurality of the Court held that harmless error analysis should not be used in cases involving mandatory presumptions. The plurality reasoned that allowing an appellate court to make factual findings that the jury never had the opportunity to consider would deny a defendant his right to a trial by jury. Johnson, 460 U.S. at 85-87, 103 S.Ct. at 976-78. In Rose, the Court seemed to overrule the plurality in Johnson by holding that harmless error analysis could be applied in cases involving mandatory presumptions. Justice Scalia, however, argues that the Court in Rose did not overrule the Johnson plurality but developed a special kind of harmless error analysis that would be appropriate in instructional error cases. He points to Rose 's statement that if, under the facts of the case, no rational jury could find the facts necessary under the faulty instruction without also finding the missing element of the offense, "the erroneous instruction is simply superfluous: the jury has found, in Winship 's words, 'every fact necessary' to establish every element of the offense beyond a reasonable doubt." Rose v. Clark, 478 U.S. at 580-81, 106 S.Ct. at 3107-08. From these remarks, Justice Scalia develops a different method of harmless error review for instructional error cases. To apply this method of analysis, an appellate court must examine what the jury found. The error is harmless if no rational jury could have made those findings without also finding the omitted or presumed fact to be true.

We agree with Justice Scalia's reading of these cases and adopt his harmless error analysis in the context of Beeman error. Indeed, without expressly adopting it, we have already employed the Scalia analysis in the context of Beeman error in Leavitt v. Vasquez, 875 F.2d 260, 262-63 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 186, 107 L. Ed. 2d 141 (1989), and in other instructional error contexts in United States v. Lopez, 885 F.2d 1428, 1439 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S. Ct. 748, 107 L. Ed. 2d 765 (1990), United States v. Smith, 891 F.2d 703, 709 (9th Cir.1989), modified, 906 F.2d 385, cert. denied, --- U.S. ----, 111 S. Ct. 47, 112 L. Ed. 2d 23 (1990), and Hennessy v. Goldsmith, 929 F.2d 511, 516-17 (9th Cir.1991).2

In applying the Scalia test to this case, we examine the findings made by the jury. The error is harmless if no rational jury would have made these findings without also finding that appellant had the specific intent to aid the murder and attempted murder. The record shows that the jury could have reached its verdict of aiding and abetting without finding that appellant had the specific intent to aid and abet the murder and attempted murder.

The jury instruction required the jury to find only that appellant knew the perpetrator's criminal purpose and that appellant did some act of aiding, abetting, or encouraging the commission of the offense. Under the circumstances of this case, we cannot say a rational jury, which found that the appellant knew the perpetrator's purpose in firing the gun at the officer, also would have necessarily found that appellant concurred in that purpose. The evidence showed that the perpetrator suddenly shot the officers from the car window at point-blank range, perhaps thinking that he and appellant were about to be arrested for robbery. Appellant did not argue that he did not know the perpetrator intended to kill the officers when he shot at such close range; rather, appellant's main defense to the murder charges was that although he knew the perpetrator's purpose, he was an "involuntary witness" to the shooting. Excerpts of Record, ("E.R."), exhibit H at 6572.

As to the second element of aiding, abetting, or encouraging, there was at least one act of aiding and abetting in the record that did not require appellant to have the specific intent to aid the murder and attempted murder. The testimony at trial was that the murder weapon was usually carried by appellant. E.R. exhibit F at 5183-86. The jury could have found that appellant aided the murder by supplying the murder weapon without necessarily finding that appellant intended the gun to be used to kill the officers.

As the district court found, there was other testimony at trial that indicated that appellant did have the specific intent to aid the murder. This testimony was vigorously challenged on cross-examination and in closing argument. Following Justice Scalia's analysis, we cannot speculate about how the jury would have weighed this evidence had it been instructed to do so. Because we cannot determine that the jury necessarily found specific intent in order to reach its verdict, the instructional error was not harmless.

As we understand appellant's "full faith and credit" argument, he is claiming that the California courts are bound to give dispositive effect to a Colorado Department of Motor Vehicles declaration executed by appellant and the witness declaring they had a common law marriage under Colorado law. The California courts considered the declaration, but they found that other evidence negated this expression of intent to be married. We affirm the district court's denial of this claim because the California courts properly applied Colorado law in considering all the relevant evidence of the couple's cohabitation and intent to hold themselves out as common law spouses. See People v. Lucero, 747 P.2d 660, 665 (Colo.1987) (mutual consent not sufficient). As there is no issue of full faith and credit here, there is no need for this court to address the propriety or impropriety of the state court's finding that the couple was not married. See Byrd v. Armontrout, 880 F.2d 1, 9-10 (8th Cir.1989) (application of marital privilege not cognizable in habeas), cert. denied, --- U.S. ----, 110 S. Ct. 1326, 108 L. Ed. 2d 501 (1990).

The judgment of the district court is AFFIRMED in part and REVERSED in part. The case is REMANDED and the district court is instructed to issue a writ of habeas corpus releasing appellant from the portion of his sentence due to the convictions for aiding and abetting murder and aiding and abetting attempted murder under Cal.Penal Code Secs. 187, 6643 unless the state grants appellant a retrial within 120 days.