NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 08 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOO HEUN LEE, No. 10-56038
Petitioner - Appellee, D.C. No. 2:08-cv-07120-JSL-RZ
LARRY SMALL, Warden, Calipatria,
Respondent - Appellant.
Appeal from the United States District Court for the Central District of California
J. Spencer Letts, District Judge, Presiding
Argued and Submitted January 12, 2011
Before: McKEOWN, W. FLETCHER, and CLIFTON, Circuit Judges.
The state of California appeals the district court's grant of Joo Heun Lee's
petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §
2253. We review the grant of habeas relief de novo, Cook v. Schriro, 538 F.3d 1000
, 1015 (9th Cir. 2008), and we affirm.
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We reject the state's argument that Lee seeks the retroactive application of a
new rule of constitutional criminal procedure in violation of Teague v. Lane, 489 U.S. 288
(1989). The state waived its Teague defense by stating in its answer that
Lee's petition "does not appear to be barred by the non-retroactivity doctrine." See
Danforth v. Minnesota, 552 U.S. 264
, 289 (2008); Collins v. Youngblood, 497 U.S. 37
, 40-41 (1990). The belated invocation of Teague in the state's objections to the
magistrate judge's report and recommendations did not revive the defense. See
United States v. Howell, 231 F.3d 615
, 622 (9th Cir. 2000). See also Granberry v.
Greer, 481 U.S. 129
, 132 (1987); Boardman v. Estelle, 957 F.2d 1523
(9th Cir. 1992).
We would reach the same conclusion if we considered the state's Teague
defense on the merits. A rule is not "new" merely because it involves a factual
situation different from that present in the case that announced the rule. See Butler
v. Curry, 528 F.3d 624
, 634 (9th Cir. 2008); Tanner v. McDaniel, 493 F.3d 1135
1144 (9th Cir. 2007). A criminal defendant is entitled to "notice of the specific
charge" against him, Cole v. Arkansas, 333 U.S. 196
, 201 (1948), a right afforded a
defendant "so that he may prepare a defense accordingly," Gautt v. Lewis, 489 F.3d 993
, 1004 (9th Cir. 2007). See also Sheppard v. Rees, 909 F.2d 1234
(9th Cir. 1990); Gray v. Raines, 662 F.2d 569
, 571-72 (9th Cir. 1981). Lee argues
[End Page 2]
that the information, which charged a violation of Cal. Penal Code § 186.22(b)(5),
indicated, first, that a successful defense to the premeditation allegation would also
constitute a defense to the gang allegation and second, that conviction on the gang
allegation would only increase his minimum parole eligibility date from seven to
15 years. Lee's counsel twice made clear this interpretation of the information.
Counsel explained in open court that several aspects of his trial strategy "" for
example, declining to challenge the qualifications or opinions of the state's gang
expert and conceding Lee's gang membership "" depended upon this
interpretation. Neither the trial court nor the state disputed counsel's interpretation
of the information until after jury deliberations had begun.
Counsel's interpretation shaped Lee's trial strategy such that Lee was
"ambushed" when the court endorsed the prosecution's different interpretation
after the case went to the jury. See Gray, 662 F.2d at 575 (Tang, J., concurring).
The principle of Cole extends to situations where, as here, the state induces and
fails to correct a belief in the sufficiency of a particular defense strategy and the
punishment consequences of a particular allegation. See Keating v. Hood, 191 F.3d 1053
, 1061 n.11 (9th Cir. 1999), overruled on other grounds by Payton v.
Woodford, 346 F.3d 1204
, 1217 n.18 (9th Cir. 2003).
[End Page 3]
For the same reasons, we conclude that the California Court of Appeal
unreasonably applied Cole, which clearly establishes that a charging document
"must in some appreciable way apprise the defendant of the charges against him so
that he may prepare a defense accordingly." Gautt, 489 F.3d at 1004. See 28
U.S.C. § 2254(d)(1). Lee reasonably read §§ 186.22(b)(1)(C) and 186.22(b)(5) as
mutually exclusive. Section 186.22(b)(1) states that it applies "[e]xcept as provided
in paragraph . . . (5)." A defendant convicted of a violent felony punishable by
life for the benefit of a gang can only be sentenced to the minimum parole
eligibility term in § 186.22(b)(5), not to the enhancement in § 186.22(b)(1)(C). See
Porter v. Superior Court, 211 P.3d 606, 611 (Cal. 2009); People v. Lopez, 103
P.3d 270, 271 (Cal. 2005). The state could have charged both §§ 186.22(b)(5) and,
in the alternative, 186.22(b)(1)(C); or it could have charged § 186.22(b) without
further specification. Lee reasonably took the precise language of the information
to limit the charges he faced. See People v. Mancebo, 41 P.3d 556, 563-64 (Cal.
2002) ("[A] defendant has a cognizable due process right to fair notice of the
specific sentence enhancement allegations that will be invoked to increase
punishment for his crimes."). Lee's counsel made this interpretation of the
information clear while the state sat mute. Under these circumstances, it was "not
reasonable to conceive that [the defendant], . . . in investigating and preparing his
[End Page 4]
defense, would have proceeded as he did if he had been charged with, or had
known that he would be required to meet" a theory of prosecution not stated in the
information. Gray, 662 F.2d at 574. The Court of Appeal's rejection of Lee's Cole
claim was objectively unreasonable. See Panetti v. Quarterman, 551 U.S. 930
(2007) ("[AEDPA] recognizes . . . that even a general standard may be applied in
an unreasonable manner.").
Finally, we conclude that the constitutional error had a "substantial and
injurious effect or influence in determining the jury's verdict." Pulido v. Chrones,
629 F.3d 1007
, 1012 (9th Cir. 2010) (quoting Brecht v. Abrahamson, 507 U.S. 619
, 623 (1993)). Lee was sentenced to five years for attempted murder and a
consecutive 10-year term for the gang enhancement. As in Gautt, "the
enhancement alone comprised more than half of his sentence." 489 F.3d at 1016.
The § 186.22(b)(5) allegation would have increased Lee's minimum parole
eligibility date from seven to 15 years, an eight-year bump; the 10-year §
186.22(b)(1)(C) enhancement was, as in Gautt, "more than the enhancement of
which [the defendant] had notice." 489 F.3d at 1016. Had Lee realized that "so
much hinged on" whether the jury found the allegation, there is "no doubt that he
would have prepared a different defense and made different tactical choices." Id.
[End Page 5]
It is not clear that such an effort would have been futile, such that the
constitutional error here is harmless. For example, Lee was not present for Edward
Kim's initial attack on the victim, when Kim announced his affiliation with the
"Asian Criminals." The state did not establish that Lee knew of Kim's gang-related
motives when he joined the fray; Lee could have argued that he was simply coming
to the aid of a friend in a fight, not acting "for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members." Cal. Penal Code §
186.22(b)(1). Lee built his defense on the understanding that defeating the
premeditation allegation would also defeat the gang allegation, a strategy the
district court found "not only reasonable," but "successful." Because "[t]his is not a
case where the evidence overwhelmingly supported the jury's verdict" on the gang
enhancement, we find the constitutional error sufficiently serious to warrant relief.
Sandoval v. Calderon, 241 F.3d 765
, 779 (9th Cir. 2001).
[End Page 6]