California, United States of America
The following excerpt is from People v. Munoz, 140 Cal.App.3d 404, 189 Cal.Rptr. 404 (Cal. App. 1983):
The jury was instructed on two alternative theories on the first degree murder charge: premeditated first degree murder and first degree felony-murder. Munoz contends the trial court erred in instructing on premeditated first degree murder since the evidence before the jury was legally insufficient to sustain a conviction on that theory. He insists where a jury is instructed on two legal theories, one of which is not supported by the evidence, and the reviewing court cannot tell which theory the jury utilized, the conviction must be reversed. (People v. Green (1980) 27 Cal.3d 1, 70-71, 164 Cal.Rptr. 1, 609 P.2d 468.)
The issue of premeditation and deliberation in the case before us is a close one.
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