What is the test for reversal of a first degree murder conviction under a felony-murder theory?

there is sufficient evidence as to at least one of the theories on which the jury is instructed, "absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (People v. Guiton, supra, 4 Cal.4th at p. 1129.) But where one of several theories is legally insufficient, reversal is required unless the record affirmatively demonstrates that the jury relied on a legally sufficient theory. (People v. Guiton, supra, 4 Cal.4th at pp. 1121-1122; People v. Morgan (2007) 42 Cal.4th 593, 609-612.)

First, defendant's argument fails because the fact that the jury made a factual finding inconsistent with the prosecution's theory of premeditated murder does not make that theory legally invalid. (See People v. Guiton, supra, 4 Cal.4th at pp. 1122, 1125 [legally invalid means "infected by prejudicial error such as inadmissible evidence or incorrect instructions," i.e., a " 'mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence' "].) The theory of premeditated murder as presented to the jury, including the jury instructions, was legally validand defendant does not argue otherwise. Accordingly, the rule that reversal is required unless the record affirmatively demonstrates that the jury relied on a legally sufficient theory does not apply.

Second, defendant's argument fails because we do not consider the jury's finding on the enhancement in evaluating whether their verdict on the murder count must be reversed. In part, section 954 provides: "An acquittal of one or more counts shall not be deemed an acquittal of any other count." And as we have just discussed, substantial evidence supports the first degree murder verdict under a felony-murder theory. Thus, reversal is not required, notwithstanding the jury's not true finding on the gun use enhancement. (See People v. Miranda (2011) 192 Cal.App.4th 398, 407 ["Under section 954, the jury's 'not true' finding on the personal firearm use enhancements may be

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