Does substantial evidence support the jury's conviction under a theory that defendant committed the murder by lying in wait?

Because substantial evidence supports the jury's first degree murder conviction under a theory that he premeditated and deliberated the murder, we need not discuss whether there is substantial evidence that defendant committed the murder by lying in wait. This is because when a prosecutor argues two theories to the jury, one of which is factually sufficient and one of which is not, the conviction need not be reversed, because the reviewing court must assume that the jury based its conviction on the theory supported by the evidence. (People v. Seaton (2001) 26 Cal.4th 598, 645.)

As we explained above, substantial evidence supports defendant's conviction for first degree murder under a premeditation and deliberation theory. So even if there was insufficient evidence that defendant committed the murder by lying in wait, we must affirm the conviction 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 (1993) 4 Cal.4th 1116, 1130, italics added.)