Dissenting:
The majority recognizes that under Supreme Court and Ninth Circuit precedent we must only look to what the jury actually decided in determining an essential element of a crime not what we as judges believe the jury would have decided if it had been properly instructed. See Carella v. California, 491 U.S. 263, 268-69, 109 S.Ct. 2419, 2422, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring); Yates v. Evatt, 500 U.S. 391, 404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991); Sullivan v. Louisiana, — U.S. -, -, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993); Martinez v. Borg, 937 F.2d 422, 424 (9th Cir.1991). However, the majority fails to apply that law to this case.
The majority acknowledges that there was a “Beeman” error in the trial court’s failure to instruct the jury that, in order to find Roy guilty of aiding and abetting the robbery of Mannix, it must find that Roy intended to encourage or facilitate the robbery. Although there clearly is evidence from which a jury could have found the requisite intent, *1487there is no way we can say that the jury did find that intent. There is' no “predicate” finding from which we can say that the jury actually found the requisite intent, as the majority indicates.
The majority simply weighs the evidence and substitutes its judgment because it finds the other possibilities “fanciful.” This is the very type of harmless error analysis that is foreclosed by Carella, Yates, Sullivan, and Martinez.
From the evidence at trial, it was quite possible the jury could have found that Roy’s intent in coming to McHargue’s aid in the fight with Mannix was to save McHargue from being killed, not to aid in a robbery. Or the jury could have found, among other possibilities, that by fighting with Clark, Roy in fact aided McHargue in a robbery without intending his fight with Clark to have such an effect. Or the jury simply could have found that Roy did not intend to aid in the robbery for whatever reason. The point is the jury did not make the finding, and we as appellate judges cannot supply our finding on an essential element of the crime for one the jury did not make.
A jury finding that Roy intended to aid in the robbery was a necessary finding of an essential element of the charged crime of felony first degree murder. The jury did not make this finding. This error cannot be harmless. I would grant this petition for habeas corpus on the first degree murder conviction for the murder of McHargue. This, of course, would not affect Roy’s conviction of second degree murder for the murder of Clark.