In what circumstances will a jury be able to convict a defendant of conspiracy to commit murder based on a theory of implied malice?

And in People v. Swain (1996) 12 Cal.4th 593, the high court found that the trial court had improperly instructed the jury that conspiracy to commit murder could be based on a theory of implied malice, which it concluded was a legally inadequate theory. It then assessed the effect of this error "under the harmless error test traditionally applied to misinstruction on the elements of an offense, namely, whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Id. at p. 607.)