Trial court erred by instructing the jury on the legally impossible crime of conspiracy to commit attempted murder, but the error was harmless. As the result of a melee at a party in which several people were killed, the three defendants were convicted of two counts of first degree murder. Defendant Samuel Navarro was also convicted of attempted murder and had a multiple-murder special circumstance found true. As to Garcia and Joseph Navarro, the jury found the multiple-murder special circumstance not true. On appeal they raised a number of instructional issues. Held: Affirmed. The jury was instructed regarding evidence of an uncharged conspiracy that defendants conspired to commit murder and/or attempted murder, as a theory of vicarious criminal culpability (CALCRIM No. 416). It was further instructed that a member of a conspiracy is culpable for the crime he conspires to commit, regardless of who actually commits the crime (CALCRIM No. 417). However, conspiracy to commit attempted murder is a legal impossibility because attempted murder requires the specific intent to commit murder, and “one cannot conspire to try to commit a crime.” However, after evaluating the evidence and verdicts rendered, the court found the error was harmless.

The trial court erred by instructing that an aider and abettor who did not personally premeditate could be convicted of first degree murder under the natural and probable consequences doctrine. In People v. Chiu (2014) 59 Cal.4th 155, the court held that an aider and abettor cannot be convicted of premeditated first degree murder under the natural and probable consequences doctrine; there must be proof the aider and abettor personally premeditated. Thus the trial court erred by instructing the jury that an aider and abettor may be culpable for first degree murder as a natural and probable consequence of the target offense. However, the record reflects the jury based its first degree murder verdicts on lying-in-wait rather than premeditation, so the error was harmless.

The holding in People v. Chiu does not extend to lying-in-wait murder. Relying on Chiu, the defendants claimed that an aider and abettor cannot be convicted of lying-in-wait murder under the natural and probable consequences doctrine and that, instead, there must be evidence that the defendant personally lay in wait. The Court of Appeal disagreed. The Supreme Court’s reasons for creating an exception to vicarious liability regarding premeditated murder do not apply to lying-in-wait murder. The mental state of premeditation is “uniquely subjective and personal” and has no effect on the resultant harm. Lying in wait is not a mental state, it consists mainly of conduct, and does have an effect on the resultant harm, as a concealed attack has greater chance of success. “[A]n aider and abettor can be guilty of lying-in-wait murder under the natural and probable consequences doctrine without any evidence that he or she personally lay in wait (or intended the perpetrator to lie in wait).”