                            NOT FOR PUBLICATION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

  v.
                                                 MEMORANDUM*
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
                               Pasadena, California

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, 1534-37

(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, 1236

(9th Cir. 1990); Gray v. Raines, 662 F.2d 569, 571-72 (9th Cir. 1981). Lee argues


                                          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).




                                           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


                                           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, 953

(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.




                                          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).

       AFFIRMED.




                                             6
