California, United States of America
The following excerpt is from People v. Smith, G040107, No. 07CF1791 (Cal. App. 2010):
As for "determining whether there was prejudice" when a trial court instructs on a factually unsupported theory of conviction, the court "adopt[ed] the following test.... [T]he appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (People v. Guiton, supra, 4 Cal.4th at p. 1130.) In applying this standard, the court explained "the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.] Furthermore, instruction on an unsupported theory is prejudicial only if that theory
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