*1 1057 made, although order kind of cute the is provided Kelly DePETRIS, after
motion reconsider A. Petitioner- unilaterally has made its decision. Appellant, INS 241.8(b). § See C.F.R. But the decision v. is made the alien allowing itself without say anything, without an examination of KUYKENDALL; Gomez, Lew James alien, process. and without other Respondents-Appellees. whether, I also have to decide based is,7 it upon record such as facts No. 99-56126. Castro, support INS’s determination. example, they do argues not. Appeals, United States Court of However, a lengthy analysis of those is- Ninth Circuit. unnecessary inappropri- sues seems to and Argued May They
ate in this dissent. are not Submitted decided majority, them addressing here Filed Jan. nothing would come to light of its deter- apply mination the statute does not Thus,
all. I not regale will or bore the with thoughts
reader further on those sub-
jects.8 said,
All that being who can overlook
the fact of those who illegally most do
reenter not come here to commit still They, rather, wrongs?
further are attract- which, a country
ed its normal faults, places
human one best be,9
the world to and are often further family
attracted close ties as well.
Still, they settled, right vested, have no — or otherwise—to amend our Constitution
and laws to make passage order be- essentially
tween states of the world as passage
same between states of the
Union.
Thus, I respectfully dissent. IJ's, immigration are 7. We limited the administrative record. officers than rather howev- INS, (9th Garcia-Martinez, v. er, See Fisher F.3d 963-64 see United States v. 1996) (en banc). Cir. (9th Cir.2000). F.3d 960-63 Perhaps say, join 8. needless I do not view, place my personal very 9.In it is best part majority’s musings subject III be, purposes opinion which, mine, but for of an one opinion, nothing like are of its hyperbole. but dicta. As to its doubts about the use of should avoid *2 Gardner, California, Francisco, San
Cliff appellant. for the Share, Attorney D. Deputy Eric Gener- al, Francisco, California, the appel- San lee. BROWNING, NOONAN,
Before: SILVERMAN, Judges. Circuit SILVERMAN; by Judge Opinion by Judge Concurrence and Dissent NOONAN.
SILVERMAN,
Judge:
Circuit
Kelly
Petitioner
DePetris shot and killed
Dana
he was
her husband
DePetris while
trial,
At
“im-
asleep
bed.
claimed
is,
perfect
she claimed
self-defense”—that
actual,
to have
honest belief
if such a
even
objectively
unreasonable. Un-
belief
law, imperfect
der
California
homicide;
complete
I. Background
however,
established,
it negates malice We
the following
take
recitation of facts
voluntary
murder
man-
reduces
from
opinion
of the California Court of
slaughter.
Appeal in
petitioner Kelly
*3
is referred to as “appellant”:
that
prove
To
her claim
she acted out of
Appellant married
DePetris in
[Dana]
an
fear
her
actual
that
husband would
1990,
knowing
November of
after
him
on
her
good
make
his threats to kill
and
for seven months. Their child Travis
baby
night,
attempted
their
was born
of
November
1991. Around
(1) to offer into evidence Dana’s handwrit-
time, appellant’s
mother divorced
(2)
journal
testify
ten
and
to
herself about
her father and
ap-
DePetris threatened
journal
having
how
read the
contributed to
pellant
kill
that he would
her if she ever
her
that Dana’s
to
belief
threats were
left him.
Incidents of DePetris becom-
seriously.
journal
The
taken
contained
ing
and
angry
hitting appellant began in
chilling
Dana’s
of
account
his violent be-
late
At
pro-
1991.
times
yelled
DePetris
havior toward his first wife and others.
fanity at the
Appellant
child.
testified
The
court
trial
excluded as irrelevant the
threats,
to many instances
physical
journal
testimony
and petitioner’s
about
violence,
a gun,
threats with
and times
having
Although
read it.1
the California
when DePetris would sneak
on her
up
Appeal
journal
held
and
and point
gun
Appel-
his
at her head.
admissible,
testimony
related
were indeed
lant
anyone
help
did
tell
or seek
it
held
their exclusion was harmless
because she was afraid
would
DePetris
the jury
because
had heard other evidence
hurt
or take
baby.
her
When she
him,
to
discussed the
relating
propensity
leaving
Dana’s
idea of
he
for domestic
said
death
part”
do us
and threat-
“[t]ill
violence.
ened to kill her or the child.
hold, first,
given
subjective
We
Once, when appellant tried to leave
self-defense,
of imperfect
element
the .er-
baby,
with
baby
DePetris took the
at
roneous exclusion of this evidence was not
gunpoint.
told
DePetris
her
she left
evidentiary
mere
It
error.
unconstitution-
never
the baby again
would
see
and
ally
petitioner’s
due pro-
interfered
appellant believed him.
time
Another
right
cess
charges.
defend
leave,
appellate started
DePe-
very
We also hold that
this error
likely
her,
tris
to kill
her
threatened
made
sit
injurious
had a
effect
substantial and
punishment,
apolo-
the closet as
then
credibility
the verdict. Petitioner’s
and
gized.
couple’s
problems
financial
state of mind were the central
issues
became
worse
late
subjective aspect
case. Because of the
being
there
several
instances of
were
self-defense,
the trial court’s er-
in paying
April
late
the rent.
In
preclusion
both
roneous
became
furious when
especially petitioner’s
testimony
about
him about
landlord talked to
the overdue
read
having
explain why
it—to
she did
rent,
yelled
told
baby
ruling.
what she did—was a crucial
None
appellant
money. Appellant
find the
the other evidence adduced
trial
money
was able to
pay
borrow
any way
up
Kelly
April
could in
for
rent.
make
DePe-
tris’s own
about her state of
unable
May,
couple
again
mind,
for
Dana DePetris’s handwritten
pay
appel-
rent.
DePetris wanted
money
corroboration of it. We reverse.
lant to
so that he
borrow
por-
attempted
sought
1. Petitioner also
to introduce
introduce
also
police interrogation
expert
videotaped
tion
an
on Battered
journal.
Syndrome.
where she told detectives about the
Woman's
fire,
thought
did not want to
and she
trip
paychecks
their
could use
evening May
Canyon. The
me or him.”
“it’s
the Grand
to find
10, 1994,
appellant
DePetris told
appellant
was that
morning or he
next
money
actual,
albeit unreason-
acting under
amade
threat
kill her. DePetris
would
death,
able,
bodily harm or
great
fear of
running
“clock” was
appellant’s
“imperfect”
is the
which
out,
life. He
meant the end
(1979)
v. Flannel
Cal.3d
People
her,
to kill
plan how
also said he would
appel-
P.2d
At
1.
Cal.Rptr.
appellant
so
baby,
or to kill the
trial,
family
friends and
members
lant’s
for the
with that
rest
have
“live
injuries that
appellant’s
testified about
*4
went to bed that
Appellant
[her] life.”
beatings.
DePetris’s
Oth-
resulted from
her later
night, but DePetris awakened
they witnesses testified that
er
head,
gun
her
night, pointed
the
in the
any problems
relationship.
noticed
“[t]ic-toc, tic-toc. You better
and said:
Kaser-Boyd testi-
Psychologist Nancy
money
you
rent or
out with the
for
come
expert
fied as an
on Battered Woman’s
Appellant
out.”
understood
clocking
are
She defined a battered
Syndrome.
her life.
this to mean that he would end
who
physical,
as one
has suffered
woman
early morning,
dog
the
the
awakened
In
sexual,
psychological abuse. She
and/or
DePetris
appellant,
and
and
battered
feel un-
explained that
women
out,
appellant
dog
to
the
told
take
stat-
safe,
anxiety,
pervasive
suffer from
sel-
he
his rest so
could
ing
he needed
others,
the
and
dom reveal
abuse
Appel-
of
later.
appellant
“take care”
relationship.
the
usually fail to leave
gun,
took the
which DePe-
got up,
lant
a
cycle
described
violence
required her
take with
always
tris
phase
first
of events
which the
consists
her,
dog
let the
and went downstairs to
violence,
towards
the second
build
Appellant
up-
then went back
outside.
violence,
explosion
is
and
phase
the
away, thinking
the
put
gun
stairs to
phase
loving
the third
contrition and
herself,
killing
all of the times De-
and
Kaser-Boyd testified
apology.
yelled at her
Petris had hit her and
appellant, using police
had evaluated
re-
making decision
the child. She denied
statements,
ports,
appel-
interviews of
if
shoot
but felt as
she was
results of
family,
lant
her
the
dream,
the gun
in a
then she heard
In
appellant.
tests
physiological
moan,
him
discharge. She heard
results, person-
test
opinion, appellant’s
help.
knew
needed
As she went to
traits,
ality
and conduct were consistent
911,
off
and she
gun
again,
call
the
went
from other
with information received
thought
police
she would tell the
battered women.
the gun.
broke in and fired
someone
appellant of first
The
convicted
took DePetris to the emer-
Paramedics
use of a firearm.
degree murder and
room,
gency
where he died from shot-
187,12022.5.)
(Pen.Code, §§
wound to the back of his head.
gun
prosecution moved
limine
ex-
station,
Police took
appellant
jour-
clude from evidence Dana DePetris’s
initially told them that an
where she
journal
it. The
any
nal and
reference to
Eventually, ap-
intruder
DePetris.
shot
descrip-
contained Dana’s own handwritten
police
that she
pellant admitted to
his
homosexu-
physical
tion of
abuse
his
interview,
In her
shot DePetris.
beating
stepdaugh-
companion,
al
his
his
evidence, appellant
was admitted into
ter,
rape
girlfriend,
of a friend’s
his
stood at the bedroom door
said
minute,
beating
accounts of his
his
numerous
holding
gun for about a
wife, including
of her
out,
breaking
thinking
only way
it’s
first
“this
sought to
know,
prosecution
eardrum. The
also
you
me or him.” She did
aim
loaded,
preclude petitioner’s
gun,
it was
or check to see
journal
having read the
both before and
A
grant
district court’s decision to
petition
during
marriage,
deny
and to its effect on
writ
of habeas cor
addition,
pus
prosecution
is reviewed de novo.
sought
her.
Bribiesca v.
Galaza,
(9th
Cir.2000).
215 F.3d
portion
petitioner’s
to exclude
video-
which,
Under
taped
interview in
Antiterrorism and Effective
police
Penalty
Death
Act of
explain
grant
we
habe
trying
course of
her actions on
only
as relief
state
morning
court decision
shooting,
she men-
to,
“contrary
or involved
her;
an unreason
tioned the
and its
effect
of,
application
able
clearly
established
prosecution intended to introduce in-
law,
Federal
determined
criminating portions
tape,
Su
preme
the United
States.” 28
sought
to exclude
reference to the
§ 2254(d)(1);
U.S.C.
journal.
prosecution
Taylor,
Williams v.
Finally,
sought
529 U.S.
S.Ct.
146 L.Ed.2d
Nancy
limit the
Dr.
Kaser-
(2000).
analyzing
“When
a claim that
Boyd,
expert
an
on Battered Woman’s
there has
been
Syndrome,
application
unreasonable
prohibit
from mention-
law,
of federal
we must
first
ing
consider
journal.
The motion in limine was
erred;
whether the
only
state court
granted.
after
and all references to
*5
we have made
may
that determination
it
ruled
we
were
inadmissible.
then
consider whether
error involved
guilty
Petitioner was found
of first de-
an unreasonable application of controlling
gree murder with use of a firearm. She
2254(d).”
meaning
§
law within the
twenty-nine
was
years
sentenced to
to life
1143,
Van
v. Lindsey,
Tran
212 F.3d
1155
prison.
in
The
of Appeal
California Court
—
(9th Cir.),
denied,
U.S. -,
cert.
121
affirmed, holding
that
unanimously
340,
(2000).
S.Ct.
148
274
L.Ed.2d
admissible,
but
evidence was
also
latter step is a
review
clear error.2
(with
holding
justice dissenting)
one
Further,
apply
we
stan
Brecht
the error was
prejudicial
light
not
dard to determine
a
whether
constitutional
other evidence
went
to the
error was harmless. Habeas relief is war
prove petitioner’s credibility
vic-
if
only
ranted
the error had a “substantial
propensity
tim’s
for violence.
injurious
effect
or influence
deter
relief,
The district court denied habeas
mining
jury’s
verdict.” Brecht v.
holding that the excluded evidence was but
Abrahamson,
619, 638,
507 U.S.
113 S.Ct.
“one
piece
physical evidence” that was
1710,
(1993);
122 F.3d 1273 the erro- 1920. questions then become whether contrary un-
neous exclusion
Likewise, in Chambers the trial court
clearly estab-
application of
reasonable
eyewitness
testify
allowed an
by the
law as determined
lished Federal
McDonald kill the
saw someone named
States, and
of the United
Supreme Court
victim,
precluded
the defendant from
“objec-
so,
error was also
whether the
testimony with evidence
corroborating that
If
error
tively unreasonable.”
As it did in
that McDonald had confessed.
unreasonable,” we then in-
“objectively
Washington,
Supreme
held that
quire
it had a substantial
whether
exclusion of
critical corroborative evi-
injurious
jury’s
verdict.
effect
only
erroneous but uncon-
dence was
it
stitutional because
interfered with the
right violated?
A. Was a constitutional
against
right to defend himself
defendant’s
criminal
of an
right
“The
accused
Chambers, 410
the state’s accusation.
is,
essence,
right
process
trial to due
298-302,
1038.
U.S.
93 S.Ct.
a fair
to defend
opportunity
lines, in
Along the same
Franklin v.
Chambers v. Missis-
State’s accusations.”
(9th
1270,
Cir.1997),
Henry, 122 F.3d
1273
1038,
294,
93 S.Ct.
35
sippi 410 U.S.
guilt
we held that where
defendant’s
(1973);
v.
L.Ed.2d
accord Davis Alas-
prose-
hinges largely
ka,
94 S.Ct.
U.S.
witness,
erroneous exclusion of
cution’s
Texas,
(1974), Washington v.
L.Ed.2d 347
assessing
credibili-
evidence critical to
14, 19,
1920, L.Ed.2d
87 S.Ct.
388 U.S.
ty
the Constitution.
witness violates
(1967).
Court has
illustrate,
clear that the erroneous exclusion of
these
the trial
made
As
cases
*6
critical,
jour
corroborative defense evidence
court’s exclusion of Dana DePetris’s
both the Fifth Amendment
may violate
petitioner’s testimony
having
nal and
about
right to a fair trial and the
process
evidentiary
due
it
not
error.
It
read was
mere
right
present
de-
Sixth Amendment
The rul
was of constitutional dimension.
Chambers,
at
410 U.S.
93 S.Ct.
fense.
of
ing went to the heart
the defense. Peti
18-19,
1038; Washington, 388
at
U.S.
sole defense was that she killed
tioner’s
S.Ct. 1920.
husband
belief that she
honest
needed to do so to save her life. The
Washington,
the defen-
example,
For
depended
success
almost
charged with murder. He ad-
dant was
believing
entirely
jury’s
petitioner’s
at the time the victim
being present
mitted
testimony about her state of mind at the
shot,
him
shooting
but denied
shooting.
prosecutor
time of the
As
the ac-
persuade
testified that
tried to
closing
“accept
argued
argument,
leave the scene
tual shooter —Fuller—to
defense,
position
you
accept
must
per-
shooting. The trial court
before the
you in
[petitioner]
what
has said to
this
Washington
testify
mitted
on his own
* * *
voluntary
find
man
[T]o
trial.
calling
him
precluded
behalf but
from
you
[petition
to find that
slaughter,
have
corroborating
Fuller
witness. The
as
you.”
There is
being
honest
er]
held that exclusion
this
Court
no
most
simply
denying
important
that the
corroborative evidence was unconstitution-
Kelly
witness in the defense of
though
al even
the defendant himself was
trial
Kelly
DePetris herself. The
Washington,
testify.
allowed to
388 U.S.
journal,
only
excluded the
court
15-17, 22,
1920. The Court
S.Ct.
testi
petitioner’s
would have corroborated
right
stated that the
to offer such evidence
still,
peti
mony,
prevented
but worse
it
plain
right
present
“is in
terms the
fully in her own
defense,
testifying
tioner from
right
present
the defen-
did what she did—
why
as
as the
behalf about
she
dant’s version of the facts
well
jury
proof
it
in a case where
of the defen-
prosecution’s
may
to the
so
decide
First, petitioner’s
mind was an
ele-
state
state of
essential
of mind was
dant’s
ment of the defense.
the critical issue at trial. The case would
rise or
jury
fall
whether
all
respect,
With
due
district court’s
petitioner
believe that
acted in
fear
actual
that the erroneous exclusion of the
ruling
harm
from her
husband
journal evidence was not of constitutional
him,
yet petitioner
shot
prevented
a misunderstanding
reveals
magnitude
from testifying fully
why
about
she feared
significance.
its true
The district court
him so.
say
It
no answer to
that the
ruling
characterized the trial court’s
as the
record contained other
evidence of
physical
“one
only
piece
exclusion of
husband’s violence. Her state of mind was
describing
evidence.”
the trial court’s
uniquely
knowledge,
within her
and Cal
as
way,
the district
failed to
ruling
court
ifornia
of Appeal
Swager
Justice
overriding sig-
take into account that the
dissent,
wrote in
proffered
nificance
evidence was not
itself
petitioner’s
so much
perceived
[i]t was the sum of her
threats
having
about how
read the
safety
to her
and her child’s
safety,
influenced
assessment of the
past
victim’s
conduct towards [petition-
It
perceived.
also must be
and [petitioner’s] knowledge
er]
remembered that the trial
excluded
judge
journal entries that constituted her state
only
journal,
petitioner’s
but also
of mind. One
cannot
severed from
it,
portion
trial
and the
others without depriving the
videotape
police interrogation
its
ability
upon
make a decision based
it,
where
mentions
ref-
“all of the circumstances known to the
to it by
expert
erence
on Battered
defendant.”
just
It
Syndrome.
Woman’s
was not
“one
A071092,
People v.
op.
No.
slip
physical
piece
evidence” that was ex-
(Cal.App.Ct.
1996)(emphasis
Nov.
cluded.
added).
The trial
precluded petitioner
court
Second, proof
credibility
of petitioner’s
testifying fully
from
state
about her
of was crucial to her
already
defense. As
presenting
mind and from
evidence
noted,
prosecutor’s closing argument
would have
testimony.
corroborated her
*7
dramatically
the importance
underscored
Because this evidence was
critical
her
petitioner’s
credibility.
prosecutor
The
ability
charge,
defend
the
we
argued
the
strenuously
only way
that
the
hold that
the exclusion of
evidence
this
jury
acquit petitioner
could
and
murder
petitioner’s clearly
violated
established
convict
if it
manslaughter
her of
was
some-
right
constitutional
to due
process
law—
how
her
actual
To
believed
claim of
fear.
present
right
valid defense as
defense,
ab-
establish
self
it was
by
established
Court
solutely
petitioner prove
essential that
her
Further,
Washington.
Chambers
and
credibility.
journal
powerfully
The
was
the foregoing independent
based on
review
and
indisputably probative
this point.
record,
we find that the state court’s
journal
DePe-
corroborated —in Dana
objectively
error was also
unreasonable.
tris’s
testi-
handwriting petitioner’s
—
Lewis,
Delgado v.
223
See
F.3d
981-82
genuine
mony that her fear had a
basis
(9th Cir.2000).
fact.
B. Did the
have a
error
substantial and
Third, although
it is true that the
injurious effect on the verdict?
testimony
people
heard
from other
about
violence,
this other
husband’s
testimo-
has shown
petitioner
that
erro-
ny
aligned
came
with the
from witnesses
neous exclusion of the
evidence
half-sister,
petitioner
parents,
and a
likely
injurious
had a
and
substantial
effect
—her
evidence,
verdict,
Brecht,
friend.
unlike
required
on the
for
excluded
“[T]he
as
following
petitioner’s family
[from
reasons:
the evidence
That
not correct. Peti-
sent at 1198.
to attack on
subject
was
friends]
they
It was
that
went
of bias
self-interest.
tioner testified
before
grounds
of corroboration
only
bed,
unbiased source
her
her
to kill
Dana threatened
v.
testimony.” People
[petitioner’s]
for
in the
if
did not have the rent
son
she
(Cal.
A071092,
slip op. at 20
No.
morning.
awakened in the middle
He
1996)
J.,
dis
(Swager,
App.Ct. Nov.
night
again
told her
she
Indeed,
from the victim
senting).
it was
up
come
“clocking out” if she didn’t
himself.
morning,
awakened
the rent.
In
James, 169
“fuck
get
v.
F.3d
her
dog,
United States
Dana ordered her
(9th Cir.1999),
critical
is instructive
dog
bed
let the
out.
ass” out of the
in a self-de-
of corroboration
importance
care
then
her that he would “take
He
told
James,
defendant’s
fense case.
that as she
[her]
later.”
testified
she
only
homicide was
later,
after
stood
the bedroom moments
grievous
herself
believed
just
letting
dog,
out
before the shoot-
Es-
bodily harm or death from victim.
herself,
only
“It’s the
ing,
thought
she
knowledge
was her
sential to her defense
way
testimony
him or
This
out. It’s
me.”
in,
of,
the decedent’s bizarre
and belief
imminent
of her
fear of
evidence
acts of vicious vio-
previous
accounts of
harm. The
evidence
excluded
committed. These stories
lence he had
would have corroborated
might
one
doubt
were so atrocious that
why
she believed
harm
really
tell them
someone
shooting
him provided
imminent and
judge
The trial
excluded court
himself.
only
escape. Although
avenue of
have corrob-
police
records that would
disqualifies
of that belief
unreasonableness
the defendant’s
orated
self-defense,
ordinary
from
tell her those
had heard
decedent
belief,
true,
actuality
of that
entitles
and, therefore, that she had reason
things
to imperfect
self-defense.
Judge
appeal,
to be afraid of him. On
for our en banc court:
Noonan wrote
recently explained by
As
the California
significance of
kind of
The crucial
in People McCoy, peti-
v.
Appeal
in a
recognized
has been
corroboration
granted,
Cal.Rptr.2d
tion
review
Wright,
leading opinion by Judge Skelly
(Cal.2000):
430,
mentary exclusion of prejudicial proba- and more ments was defi- McCoy attacks the [the defendant] bly than not affected the verdict. imminent in the peril nition of contained F.3d 1214-15. instruction used the case Such is here. that, adding in argues by this case. He peril against the the requirement the argues dissent exclusion ap- acted must which the defendant has because the corroboration was harmless slayer to a rea- pear imminent the “as no of a fear “[t]here was improp- to Dis- instruction peril person,” imminent be corroborated.” sonable injected objective gun, me, “thinking into of all the erly standard times hit he subjective what is test. yelled baby, him, at me and yelled bills,
and our and that he was serious going to kill got me.” When she that to agree McCoy We must re- stairs, top of the entering before im- quire appear be bedroom, removed safety she from the minent the defendant “as reason- gun. bedroom, She entered the and the person” directly contradicts able gun in her hand went off. unreasonable, or principle imperfect, She did not testify that she shot Dana self-defense, requires only that DePetris because she was afraid would the defendant have acted in an actual asked, rise and her. harm She was “When harm, fear fear of you got top stairs, to the you do appear imminent harm which would making remember a decision to shoot the person. be such to a reasonable gun?” answered, “No. I never would (internal omitted). Id. citations hurt him in a million years. I never
IY. CONCLUSION
do that.”
holdWe
that the erroneous exclusion of
After
had
memory
she
testified to her
both the
evidence and
refer- what
presented
she
“in a
happening
ence
especially petitioner’s
own tes-
it—
about
dream,”
asked,
her counsel
you
“As
were
timony
unconstitutionally inter-
it—
holding
gun,
you
Mrs.
did
ability
fered with her
to defend
think
yourself,
the only way
‘It’s
out.
charges against
The preclusion
her.
It’s him
you
or me.’ Do
remember?” She
highly probative
evidence went to the
answered, “I remember thinking, yes.”
case,
crux
and the harm caused by
ease,
judge
who tried the
two of the
by
its exclusion was not cured
the receipt
three
Ap-
members
the state Court of
of other
that was significantly
evidence
record,
peal, who reviewed the trial
compelling.
less
Petitioner has shown that
California,
and the fed-
substantially
her trial was
injuriously
eral
judge
district
who heard
ruling,
petition-
affected
the erroneous
therefore,
er,
corpus
writ of habeas
should
found no fatal error
con-
DePetris’s
granted.
have been
We REVERSE AND viction. The difference between these
REMAND for
proceedings
further
consis-
judges
accepting
po-
and those
DePetris’s
opinion.
tent with this
chiefly
sition is
a difference over what
required
prove
California law
DePetris to
NOONAN,
Judge, concurring
Circuit
if she
mur-
were
reduce her crime from
dissenting:
der to manslaughter.
Quintessentially, this kind of case is de-
What
to prove
DePetris had
was not
signed
for a
applying the law of homi-
she was
fear of retaliation
fear of
jurisdiction.
cide of
No
of racial
issue
killing
morning by
later
mate
gender
competent
bias or
or lack
bias
violently
knew to
abusive. What
is presented.
counsel
It
late in
prove
succinctly
set out
appellate process
diligent
counsel
California,
Supreme Court of
expounding
glimpsed
even
possibility
federal
*9
the
and
doctrine
I
judgment
relief.
concur in the
that a
cautioning that the doctrine
federal issue
preserved.
...
requires
is narrow.
It
ex-
without
According Kelly
to
DePetris’s own testi-
ception
have
the defendant must
mony,
picked Dana
up
she
DePetris’s load-
had an actual belief in the need
self-
from
gun
ed
the bedroom table and took it
what
emphasize
defense. We also
her for protection
with
when she went
should
Fear
be obvious.
of future
dog
downstairs to let the
out about 5:15
upstairs carrying
A.M.
returned
matter how
great
She
the
harm-no
the fear
future at the hands
the husband she
likelihood
great
how
the
no matter
The defen-
lay
suffice.
his
in their
the harm-will not
shot
he
on
face
bed.
as
danger
must
of imminent
dant’s fear
be
every
have believed
word
jury could
injury.
bodily
“[T]he
great
to life or
Her testimony
said.
did not establish
she
appear to the defendant
peril must
a
California law.
recognized
defense
under
present
prospec-
immediate and
never testified that she believed her-
An
in
future.
or
the near
tive
even
DePetris.
peril
self
imminent
from Dana
that,
appear-
from
peril
imminent
is one
a
immi-
testimony
There was no
fear of
ances,
instantly
with.”
must be
dealt
to
peril
nent
be corroborated. DePetris’s
S.,
768, 782,
7 Cal.4th
re Christian
way
could in no
reading of the
(inter
(1994)
33,
heard admissible evidence jury: prosecutor As the to the argued impact termine what the excluded evidence mind. juror’s end, would have had on such a accept position In the defense, here The answer is not difficult because you accept must what she says California law what DePetris had has And you said this trial. even prove excluded would not evidence nowhere, that, anywhere, accepting it. proved have says anything there that meets the standards.... definition of [T]he The issue was not whether imminency something has to was in actual would believe the dan- instantly dealt because of fear of her husband. She testified that because, ger present, very that is she was such fear. DePetris even testi- *10 shooting, in near is a fied as her fear death time of there death, bodily great injury peripheral sion of evidence must constitute time. process. denial due If there were by case, didn’t
And that exist such a it would have by been cited words. by judges who have persuaded by been her argument. No challenge by No made such citation has been or offered exists. properly instructed on The court law in assuming it is makes new self-defense as understood in law. California The standard California harm was concluding done here and that it subject instruction on the reads: unacceptable under federal constitu- A who another in person, person kills tion. jurispru- Innovative constitutional but the actual unreasonable belief in the by may dence this court be praiseworthy necessity defend or open criticism. the context of peril life or great bodily injury, kills corpus habeas it is not lawful. unlawfully, does harbor malice It cannot be said that the exclusion of aforethought guilty and is not mur- the evidence injuri “had a substantial and der. This would though be so even ous effect or in determining influence person reasonable in the same situation Abrahamson, jury’s verdict.” Brecht v. seeing and knowing same facts 637, 619, 1710, 507 U.S. 113 S.Ct. would not have had the same belief. (1993); Cambra, L.Ed.2d 353 Bains v. Such an actual but unreasonable belief (9th Cir.), F.3d 977-78 cert. de is not a defense to the crime of [volun- —nied, -, U.S. S.Ct. tary] [involuntary] manslaughter. [or] (2000). L.Ed.2d 536 instruction, As used this an “immi- disobey governing We the statute our [danger] [peril] [or] nent” means one jurisdiction grant when, corpus habeas apparent, present, that is immediate and disregard the absence of with, “clearly instantly must be so dealt must law, slayer. established appear by time to the Federal as determined However, Supreme States,” Court of the .principle United is not avail- able, malice aforethought grant petition. is not ne- we gated the defendant [his] [or] [her] [wrongful] [or] conduct creat-
[unlawful]
ed legally justi- the circumstance which adversary’s [or]
fied [his] [her] [use force], [pursuit]. [attack] [or] MOZES, Application Arnon In re the Instructions, Jury California Criminal of, Petitioner-Appellant, ed.1996). (6th § 5.17 v.
Nothing excluded evidence showed that un- reasonably or MOZES, Respondent-Appellee. Michal husband, believed reasonably, No. 98-56505. bed, prone on the presented peril Court of Appeals, United States present, “apparent, immediate.” Ninth Circuit. plenty leading There was of evidence to a belief he would threat be a 1999. Argued Aug. Submitted up gun, not a scintilla Filed 2001. Jan. evidence that a belief imminent peril at the was formed moment DePetris fired.
The court California misconstrues law excluded
finding the evidence corrobora-
tive. law
No federal determined the Unit-
ed States Court holds the exclu-