What is the current state of the law on alternate theories in a sexual assault case?

Appellant appropriately directs our attention to People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, in both his opening brief (id., at p. 68, 164 Cal.Rptr. 1, 609 P.2d 468) and in his closing brief. (Id., at pp. 67-69, 164 Cal.Rptr. 1, 609 P.2d 468.) "Appropriately" because respondent's asserted alternate theory sustaining appellant's section 237 punishment strongly suggests probable implication of a settled governing rule on appeal. When the prosecution presents its case to the jury on alternate theories, one legally correct and one legally incorrect, and the reviewing court cannot determine from the record on which theory the jury reached its general verdict of guilt, the conviction cannot stand. (Id., at p. 69, 164 Cal.Rptr. 1, 609 P.2d 468.) The same rule applies when the defect in either alternate theory is not legal but factual, i.e., when the evidence is held to be insufficient to support the conviction on

Page 921