concurring and dissenting:
Quintessentially, this kind of case is designed for a jury applying the law of homicide of the jurisdiction. No issue of racial bias or gender bias or lack of competent counsel is presented. It was late in the appellate process that diligent counsel even glimpsed the possibility of federal relief. I concur in the judgment that a federal issue was preserved.
According to Kelly DePetris’s own testimony, she picked up Dana DePetris’s loaded gun from the bedroom table and took it with her for protection when she went downstairs to let the dog out about 5:15 A.M. She returned upstairs carrying the gun, “thinking of all the times he hit me, yelled at me and the baby, yelled at him, and our bills, and that he was serious and was going to kill me.” When she got to the top of the stairs, before entering the bedroom, she removed the safety from the gun. She entered the bedroom, and the gun in her hand went off.
She did not testify that she shot Dana DePetris because she was afraid he would rise and harm her. She was asked, “When you got to the top of the stairs, do you remember making a decision to shoot the gun?” She answered, “No. I would never hurt him in a million years. I would never do that.”
After she had testified to her memory of what she presented as happening “in a dream,” her counsel asked, “As you were holding the gun, Mrs. DePetris, did you think to yourself, ‘It’s the only way out. It’s him or me.’ Do you remember?” She answered, “I remember thinking, yes.”
The judge who tried the ease, two of the three members of the state Court of Appeal, who reviewed the trial record, the Supreme Court of California, and the federal district judge who heard the petitioner, found no fatal error in DePetris’s conviction. The difference between these judges and those accepting DePetris’s position is chiefly a difference over what California law required DePetris to prove if she were to reduce her crime from murder to manslaughter.
What DePetris had to prove was not that she was in fear of retaliation or fear of killing later in the morning by a mate she knew to be violently abusive. What she had to prove was succinctly set out by the Supreme Court of California, expounding the doctrine of imperfect self-defense and cautioning that the doctrine
... is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense. We also emphasize what should be obvious. Fear of future harm-no matter how great the fear and *1066no matter how great the likelihood of the harm-will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. “[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.”
In re Christian S., 7 Cal.4th 768, 782, 30 Cal.Rptr.2d 33, 872 P.2d 574 (1994) (internal citations omitted). At the moment she inflicted death, DePetris had to believe she would then at that moment be killed if she did not kill first.
DePetris offered not a word of testimony that she felt herself, reasonably or unreasonably, in imminent peril from her husband. It is uncertain whether he was asleep at the moment of shooting; her testimony varied on that point; the state Court of Appeal assumed that he was awake. Her only testimony to any movement by him was that he moved and called out after he was shot. As she was outside the bedroom where he lay when she prepared the gun for action by removing the safety, she was, by her own testimony, in no imminent danger from Dana..
The trial judge excluded certain defense evidence. Error in the ruling is identified on appellate review. What becomes the federal question, the constitutional question, the decisive question is whether the exclusion substantially prejudiced the defense. To answer that question requires a judge to perform what is sometimes, but not here, a difficult psychological feat — to put himself in the shoes of a juror who had heard the admissible evidence and to determine what impact the excluded evidence would have had on such a juror’s mind. The answer is not difficult here because California law says what DePetris had to prove and the excluded evidence would not have proved it.
The issue was not whether the jury would believe that petitioner was in actual fear of her husband. She testified that she was in such fear. DePetris even testified as to her fear of death in the near future at the hands of the husband she shot as he lay on his face in their bed. The jury could have believed every word she said. Her testimony did not establish a defense recognized under California law. She never testified that she believed herself in imminent peril from Dana DePetris. There was no testimony of a fear of imminent peril to be corroborated. DePetris’s reading of the journal could in no way have caused the jury to believe that at the moment of the killing she thought her husband was about to kill her. DePetris herself, the only person to know what happened, testified to nothing of the sort.
Our court fastens not on her words but on the words of her counsel in order to contend that she had a belief of being in imminent danger. Counsel was conscious that was a possible defense; DePetris doesn’t seem to have realized it. She responded to her counsel’s suggestion ambiguously as to whether she was thinking these words or just thinking. Counsel did not clear up the ambiguity. But the ambiguity is cleared up by looking at her testimony as a whole. The thought “him or me” was contrary to her explicit testimony that she made no decision to shoot him, contrary to her testimony that she felt she was in a dream, contrary to her testimony that the gun just went off without her aiming at her husband and pulling the trigger. Every word of her explicit testimony contradicts her counsel’s attempt to lead her into saying that she shot her husband because she believed herself in imminent danger from him.
As the prosecutor argued to the jury:
In the end, to accept the position of the defense, you must accept what she has said to you at this trial. And even accepting that, nowhere, anywhere, is there anything that she says that meets the standards.... [T]he definition of imminency is something that has to be instantly dealt with because of the danger that is present, because, at the very time of the shooting, there is a danger of *1067death, of great bodily injury at that time.
And that didn’t exist by her own words.
No challenge is made by DePetris that the jury was not properly instructed on imperfect self-defense as it is understood in California law. The standard California instruction on the subject reads:
A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief.
Such an actual but unreasonable belief is not a defense to the crime of [voluntary] [or] [involuntary] manslaughter.
As used in this instruction, an “imminent” [peril] [or] [danger] means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.
However, this .principle is not available, and malice aforethought is not negated if the defendant by [his] [or] [her] [unlawful] [or] [wrongful] conduct created the circumstance which legally justified [his] [or] [her] adversary’s [use of force], [attack] [or] [pursuit].
California Jury Instructions, Criminal § 5.17 (6th ed.1996).
Nothing in the excluded evidence showed that DePetris, reasonably or unreasonably, believed that her husband, prone on the bed, presented a peril that was “apparent, present, and immediate.” There was plenty of evidence leading to a belief that he would be a threat when he was up and had the gun, not a scintilla of evidence that a belief of imminent peril was formed at the moment DePetris fired. The court misconstrues California law in finding the excluded evidence corroborative.
No federal law determined by the United States Supreme Court holds the exclusion of peripheral evidence must constitute a denial of due process. If there were such a case, it would have been cited by the petitioner and by the judges who have been persuaded by her argument. No such citation has been offered or exists. The court makes new law in assuming that harm was done here and concluding that it is unacceptable under the federal constitution. Innovative constitutional jurisprudence by this court may be praiseworthy or open to criticism. In the context of habeas corpus it is not lawful.
It cannot be said that the exclusion of the evidence “had a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir.), cert. denied, — U.S. -, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000).
We disobey the statute governing our jurisdiction to grant habeas corpus when, in the absence of any disregard of “clearly established Federal law, as determined by the Supreme Court of the United States,” we grant the petition.