Can a jury uphold a conviction on any factual theory that is supported by the evidence?

We can uphold a conviction on any factual theory that is supported by the evidence unless the entire record affirmatively demonstrates a reasonable probability the jury found the defendant guilty based solely on the unsupported theory. (People v. Perez (2005) 35 Cal.4th 1219, 1233; People v. Guiton (1993) 4 Cal.4th 1116, 1128.) Here, the evidence supported a conviction for theft based on taking fruit from the tree of Le's neighbor.

The prosecution was not required to present testimony of lack of consent. "Under the Penal Code of this state, it is not necessary to allege in the indictment or information that the property was taken against the will of the owner. There is nothing found in the definition of larceny to that effect. . . . 'But such consent is, at the common law, matter simply of defense, and the absence of it does not enter into a prima facie case. Hence non-consent is not averred in the indictment, and it need not be proved.'" (People v. Davis (1893) 97 Cal. 194, 195.)