What is the test for determining whether a jury convicted a defendant of first degree murder based on a jury finding that he committed the crime through a nonviolent Jamaican switch rather than through use of a gun?

2 For purposes of this appeal, we must assume that the first degree murder verdict was based on felony murder since we have no way of knowing whether the jury relied on that theory or on premeditation and deliberation. (See People v. Green, supra, 27 Cal.3d at pp. 69-71, 164 Cal.Rptr. 1, 609 P.2d 468.)

3 This is in contrast to the situation in People v. Miller (1974) 43 Cal.App.3d 77, 117 Cal.Rptr. 491, where the trial court instructed on first and second degree robbery, but erroneously failed to instruct on theft based on the defendant's testimony that he obtained the victim's wallet through a nonviolent Jamaican switch rather than through use of a gun as claimed by the victim. There, the appellate court properly found that the jury had impliedly rejected the defendant's version when it found first degree armed robbery instead of the lesser second degree robbery.

4 Defendant also contends that he should have been given 26 peremptory challenges under Penal Code section 1070 as a defendant facing a possible indeterminate sentence of 25 years to life. We agreed with defendant's interpretation of section 1070 in People v. Yates (1983) 34 Cal.3d 644, 194 Cal.Rptr. 765, 669 P.2d 1, but we refused to apply our decision to trials commenced before its finality. Defendant's trial preceded our decision in Yates.