California, United States of America
The following excerpt is from People v. Perez, 113 P.3d 100, 29 Cal.Rptr.3d 423, 35 Cal.4th 1219 (Cal. 2005):
In contrast, when one of the theories presented to a jury is factually inadequate, such as a theory that, while legally correct, has no application to the facts of the case, we apply a different standard. (See People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130, 17 Cal.Rptr.2d 365, 847 P.2d 45.) In that instance, we must assess the entire record, "including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Id. at p. 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45.) We will affirm "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." (Ibid.)
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