Darrick Martinez v. Rosie Garcia

RAWLINSON, Circuit Judge.

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 challenging Count 2 of his conviction is reversed. 1 For reasons stated in the memorandum…