Martinez

We presume that a jury follows the instructions given by the trial court. Ho v. Carey, 332 F.3d 587, 594 (9th Cir.2003). When the instructions, however, combine two theories of guilt, one of which is untenable, and we cannot discern upon which theory the jury convicted, structural error has occurred. The state court’s decision upholding Martinez’s conviction was contrary to clearly established federal law. Accordingly, the district court’s denial of Martinez’s habeas petition is reversed.

I. BACKGROUND

The Petitioner, Darrick Martinez, was charged in an information with the attempted murder of Peter Anthony Jimenez; the attémpted murder of Robert Paul Jimenez; and shooting at an inhabited dwelling.

Peter Jimenez testified that he was in the living room at his brother’s house when he responded to a knock at the front door. He saw Martinez through the screen door. Martinez asked Jimenez to open the door. Jimenez noticed that Martinez’s hands were trembling and that he was holding something shiny. With the gun extended arm’s length, Martinez shot Jimenez in the chest area. Jimenez was also shot in the back as he ran. Jimenez identified Martinez as the person who shot…