Does the natural and probable consequences doctrine apply to a defendant who is convicted of first degree murder for lying in wait?

Defendants further argue that, assuming they can be found guilty of first degree murder under the natural and probable consequences doctrine, even if lying in wait was not foreseeable, then the natural and probable consequences doctrine is unconstitutional. This argument presumes that the reasonable foreseeability of the lying in wait is an element of the offense for purposes of Apprendi v. New Jersey (2000) 530 U.S. 466. For the reasons already discussed, however, we disagree; the relevant element of the offense is that the perpetrator did, in fact, lie in wait, regardless of whether the lying in wait was reasonably foreseeable.