concurring in part and delivering the opinion of the court in part:
We readily concur in the court’s opinion in all respects save the reversal of McIntosh’s conviction for aiding escape.
*1439We acknowledge that our decision in United States v. Vowiell, 869 F.2d 1264, 1268-69 (9th Cir.1989), rendered erroneous the fourth element of the jury instruction applicable to the charge of aiding the escape of Lopez. We would hold, however, that the error was harmless.
The missing element in the charge, designed to fix the elements of McIntosh’s necessity defense, is the requirement that McIntosh continued to assist Lopez during the entire period of her escape. Put another way, the charge failed to indicate that if Lopez failed to make a bona fide good faith effort to surrender to authorities after she reached a position of safety, McIntosh must be found to have assisted her in this failure. That is, the fourth element properly should have read:
And Fourth, Should Ms. Lopez not have made a bona fide good faith effort to surrender to authorities after she reached a position of safety, Mr. McIntosh should not have aided or assisted Ms. Lopez in this failure to any extent.
The record contains not a shred of evidence suggesting that McIntosh disassociated himself in any way from the failure of Lopez to make a good faith effort to surrender after reaching safety. Moreover, it was found by the jury that Lopez did so fail. McIntosh was apprehended in a jewelry store while picking up two wedding rings. When he was arrested, police found two guns, ammunition, and $1800 in cash in his briefcase. In addition, police found yet another gun in McIntosh’s car as well as a CB radio and a police scanner tuned to monitor police broadcasts. The natural inference of the facts is that McIntosh did assist Lopez in her failure to make a good faith effort to surrender after reaching safety.
Under these circumstances, we follow Justice Scalia’s recent description of harmless error. In Carella v. California, — U.S. -, 109 S.Ct. 2419, 2433, 105 L.Ed.2d 218 (1989), joined by Justices Brennan, Marshall, and Blackmun, he said:
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. The error is harmless because it is “beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), that the jury found the facts necessary to support the conviction.
109 S.Ct. at 2433.
Here the “predicate fact ... necessarily found by the jury” was the failure of Lopez to make the required good faith effort to surrender. The “ultimate fact to be presumed” is McIntosh’s assistance in this failure. We would hold no rational jury under the facts of this case could find the first without finding the second. The error in the charge was harmless beyond a reasonable doubt.