A conviction must be set aside where the jury has been presented with both a legally adequate theory and a legally inadequate theory of the offense and the record does not reflect the theory on which the jury based its conviction. In 1994, appellant forced the victim a distance and then sexually assaulted, beat, and strangled her. She went into traumatic shock and died as a result of her injuries and loss of blood. Appellant was convicted of felony murder based on the underlying crimes of kidnap and unlawful penetration. As to the kidnap, the prosecutor argued that the requirement of a movement of substantial distance for a finding of kidnap could be established on the basis of either: (1) the distance the victim was movedm, or (2) distance in combination with other factors. Because the case law in effect at the time of the offense, held that the determining factor in the crime of kidnap is the actual distance of the victims movements, the second theory was inadequate. (People v. Caudillo (1978) 21 Cal.3d 562, 572.) [Caudillo was overruled by People v. Martinez (1999) 20 Cal.4th 225, 237, 239, which allowed for consideration of factors in addition to distance but Martinez is expressly non-retroactive.] As the record did not establish on which theory the jury based its conviction for kidnap, the Court agreed that the kidnap conviction must be set aside. However sufficient evidence supporting a kidnap conviction existed so as to permit retrial of the kidnap charges. (People v. Hayes (1990) 52 Cal.3d 577.) The Court rejected appellant’s argument that the crime of unlawful penetration merged with the homicide (People v. Ireland (1969) 70 Cal.2d 522) because unlawful penetration, unlike assault in the Ireland doctrine, has a felonious purpose independent from homicide - namely, to sexually arouse, gratify or abuse.