FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORNELIO DELA CRUZ SALES JR.,

AKA Cornelio Dela Cruz Sales,

AKA Cornelio De La Cruz Sales,

AKA Jon Dela Cruz Sales,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

No. 15-70885

Agency No.

A029-556-125

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 19, 2017

San Francisco, California

Filed August 18, 2017

Before: Mary M. Schroeder and Mary H. Murguia, Circuit

Judges, and Jon P. McCalla,* District Judge.

Opinion by Judge Schroeder

* The Honorable Jon P. McCalla, United States District Judge for the

Western District of Tennessee, sitting by designation.
2 SALES V. SESSIONS

SUMMARY**

Immigration

The panel denied Cornelio Dela Cruz Sales’ petition for

review of the Board of Immigration Appeals’ decision

concluding that his California conviction for second degree

murder, based on an aiding and abetting theory, made him

removable for having been convicted of an aggravated felony.

The panel held that California law on aiding and abetting,

which looks to the natural and probable consequences of an

act the defendant intended, had not materially changed since

the Supreme Court decided Gonzalez v. Duenas-Alvarez, 549

U.S. 183 (2007). In Duenas-Alvarez, the Supreme Court held

that absent a showing that the law had been applied in some

“special” way, a California conviction for aiding and abetting

a removable offense is also a removable offense. The panel

concluded that there is nothing special about the California

aiding and abetting law that brings it or Sales’ conduct

outside the generic definition of aiding and abetting. 

Accordingly, the panel held that the Board correctly ruled that

Sales’ conviction for second degree murder as an aider and

abettor was an aggravated felony for purposes of his removal

proceedings.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SALES V. SESSIONS 3

COUNSEL

Harry J. Moren (argued), Alexander K. Talarides, and James

N. Kramer, Orrick Herrington & Sutcliffe LLP, San

Francisco, California, for Petitioner.

Jesse L. Busen (argued), Trial Attorney; Eric W. Marsteller

and Claire L. Workman, Senior Litigation Counsel; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

OPINION

SCHROEDER, Circuit Judge:

Cornelio Dela Cruz Sales, Jr., a native and citizen of the

Philippines, petitions for review of the Board of Immigration

Appeals’s (“BIA”) order of removal. Sales is a lawful

permanent resident who was ordered removed under 8 U.S.C.

§1227(a)(2)(A)(iii) as an alien convicted of an aggravated

felony. When he was eighteen, Sales was convicted in

California of second degree murder on an aiding and abetting

theory. On his release, after nineteen years of incarceration,

he was placed in removal proceedings.

There is no dispute that a California conviction for second

degree murder is an aggravated felony under federal law. 

The principal issue we must decide is whether, given the

nature of the California law of natural and probable

consequences, the conviction for aiding and abetting murder

on a natural and probable consequences theory also qualifies

as an aggravated felony. We agree with the BIA that it does.
4 SALES V. SESSIONS

The Supreme Court, in 2007, reviewed California’s law

on aiding and abetting, which like that of many jurisdictions

looks to the natural and probable consequences of an act the

defendant intended. Gonzalez v. Duenas-Alvarez, 549 U.S.

183, 191–93 (2007). The Court concluded that absent a

showing that the law has been applied in some “special” way,

a conviction in California for aiding and abetting a removable

offense is also a removable offense. Id. at 191. We now hold

that California law, has not materially changed since DuenasAlvarez was decided and was not applied in any “special”

way in Sales’ case. We therefore deny the petition.

BACKGROUND

Sales was convicted in 1995 in California of second

degree murder. We summarize what happened as reported in

the unpublished Court of Appeal decision affirming the

conviction. See People v. Khounsiriwong, et al. No. C023718

(Cal. Ct. App., Sept. 25, 1998) (unpublished).

The crime occurred on January 14, 1995, after an incident

where Sales and a group of friends, including Vilay

Khounsiriwong and Kloi Khounsirivong, drove to a house

party where another friend was reported to be in trouble. 

There was testimony he needed “backup.” Sales was armed

with a pistol. When they arrived, Sales helped load the pistol. 

Vilay Khounsiriwong then took the pistol, got out of the car,

and approached the house. Spotting another young man in a

car parked at the curb, Khounsiriwong opened fire into the

car, killing the victim.

Khounsiriwong, Khounsirivong and Sales were tried

together. Vilay Khounsiriwong was convicted as a principal

for first degree murder, while Sales and the car’s driver, Kloi
SALES V. SESSIONS 5

Khounsirivong, were each convicted of second degree

murder. The jury was instructed that Sales and

Khounsirivong could each be convicted of second degree

murder if he had intended to aid in commission of one or

more of several target offenses (possession of a concealed

weapon, possession of a loaded weapon, possession of a

loaded weapon in a motor vehicle, brandishing a weapon,

assault, and assault with a deadly weapon), and if the jury

found that murder was a natural and probable consequence of

the target offense. The California Court of Appeal affirmed

Sales’ conviction on direct appeal. Sales spent the next

nineteen years in prison, and removal proceedings followed.

The Immigration Judge ordered Sales removed as having

been convicted of an aggravated felony. Before the BIA,

Sales argued that his conviction was not a match for generic

murder, and thus could not qualify as an aggravated felony

because, under California’s application of the natural and

probable consequences doctrine, he could have been

convicted of murder without having the requisite mentalstate. 

The BIA rejected his argument, finding that this argument

was foreclosed by Duenas-Alvarez, and noting the Supreme

Court had “rejected the respondent’s argument that there was

anything ‘special’ about California’s version of [the natural

and probable consequences] doctrine.” The BIA thus found

his conviction was a match for aiding and abetting generic

murder and therefore an aggravated felony. He timely

petitioned this court for review.

ANALYSIS

Our consideration of Sales’ petition for review begins

with Duenas-Alvarez, where the Supreme Court, reversing a

Ninth Circuit decision, held that an individual convicted of
6 SALES V. SESSIONS

aiding and abetting a generic theft crime in California had

committed an aggravated felony. Duenas-Alvarez, 549 U.S.

at 187–89. This court had held that although the generic theft

offense was an aggravated felony, aiding and abetting the

generic theft offense was not. Duenas-Alvarez did not take

that position before the Supreme Court. Instead he argued

that he had not committed an aggravated felony because

California’s application of the natural and probable

consequences doctrine for aiding and abetting offenses went

beyond the generic application of natural and probable

consequences. Id. at 190.

Duenas-Alvarez relied on three California Court of

Appeal decisions for support, but the Supreme Court rejected

his theory that any of those demonstrated there was anything

special about California’s application of the natural and

probable consequences doctrine. See id. at 193. The Court,

however, did recognize that a future party might be able to

show that matching generic definitions might disguise a

significant difference in the breadth of liability, provided

there was

a realistic probability, not a theoretical

possibility, that the State would apply its

statute to conduct that falls outside the generic

definition of a crime. To show that realistic

probability, an offender, of course, may show

that the statute was so applied in his own case.

But he must at least point to his own case or

other cases in which the state courts in fact

did apply the statute in the special

(nongeneric) manner for which he argues.
SALES V. SESSIONS 7

Id. at 193. Nonetheless, in the Court’s view, Duenas-Alvarez

had made “no such showing” and had at most shown a

“theoretical possibility” that California law would allow a

conviction for conduct outside the scope of generic aiding

and abetting liability, whereas he needed to show a “realistic

probability.” Id. at 193.

Sales contends that he has made a showing sufficient to

meet the requirements the Supreme Court set forth for a result

different than the result in Duenas-Alvarez. He argues that

California law on aiding and abetting is broader than that

described in Duenas-Alvarez, so as to reach crimes removed

from the defendant’s actual conduct and thus beyond what the

Supreme Court envisioned as “natural and probable

consequences.” Sales cites a recent decision by the California

Court of Appeal that he argues demonstrates that California

allows a defendant to be convicted of murder on a theory of

natural and probable consequences when the defendant

intended only to aid and/or abet a non-violent crime. People

v. Cruz-Santos, 2015 WL 7282040 (Cal. Ct. App. Nov. 18,

2015) (unpublished). Sales also cites to the facts of his own

case. His argument is unconvincing.

In Cruz-Santos, the list of target offenses included

cultivation of marijuana, and the defendant was convicted of

second degree murder. Id. at *1, *5. This was not as strange

as it may sound, for the jury found the murder to have been

a natural and probable consequence of a large marijuana

growing operation patrolled by heavily armed guards. The

opinion of the Court of Appeal affirming the conviction

emphasized the presence of loaded weapons at the marijuana

growing operation and threats of violence by their use in

connection with guarding the enterprise. Further, both

defendants were involved with threatening the victim and the
8 SALES V. SESSIONS

evidence was unclear as to which defendant fired the fatal

shot. It seems apparent that a jury could easily have found

violent intent and applied the natural and probable

consequences doctrine under these facts. The California

Supreme Court denied review, so there is no authoritative

opinion of the state’s highest court in the case. Sales

nevertheless reads the case to illustrate that California,

distinct from other jurisdictions, will convict a defendant of

murder as the natural and probable consequence of nonviolent conduct.

Sales attempts to buttress his reading of Cruz-Santos by

citing to Justice Liu’s statement dissenting from the denial of

the petition for review in the California Supreme Court. 

Justice Liu argued that Cruz-Santos allowed too great a gap

in culpability between a target offense of cultivation of

marijuana and the consequential conviction of murder. Id. at

*21 (Liu, J., dissenting). The Chief Justice’s concurrence in

the denial of the petition for review, joined by two other

justices, noted that “reasonable minds [could] differ about”

Justice Liu’s characterization of the Cruz-Santos record. Id.

at *18 (Cantil-Sakouye, C.J., concurring).

We therefore cannot read much into the opinion of the

Justices in Cruz-Santos about the current state of the aiding

and abetting law of California. There is certainly nothing that

would suggest that California applied the doctrine of natural

and probable consequences at the time of Petitioner’s

conviction in any way that deviated from the way the United

States Supreme Court described it in Duenas-Alvarez.

More helpful is a recent California Supreme Court

discussion of aiding and abetting culpability that emphasized

the vicarious nature of the liability the doctrine imposed. See
SALES V. SESSIONS 9

People v. Chiu, 325 P.3d 972 (Cal. 2014). The Court held

that the natural and probable consequences doctrine cannot be

used to impose aider and abetter liability for first degree

murder because of the subjective element of premeditation,

but the Court reaffirmed aider and abetter liability for second

degree murder because “second degree murder is

commensurate with a defendant’s culpability for aiding and

abetting a target crime that would naturally, probably and

foreseeably result in a murder under the natural and probable

consequences doctrine.” Chiu, 325 P.3d at 980. The doctrine

remains alive and well in California.

The facts of Sales’ case are also not a convincing

demonstration that California law is “special.” The

applicability of the natural and probable consequences

doctrine was actually raised, at least indirectly, in the

California courts in Sales’ own case. Sales argued on appeal

he could not have been found guilty of the serious crime of

murder when the target offenses of weapons charges included

what he regarded as trivial offenses. The state court

dismissed this suggestion, pointing out that the jury was

properly instructed on the factual issues of foreseeability, and

that the “intentional shooting resulting in death stemming

from aiding an armed confrontation is not unforeseeable as a

matter of law.” The court concluded that “[a]rming and

transporting another for such a purpose is not trivial behavior;

it is deadly serious.” See People v. Khounsiriwong, et al.,

No. C023718 (Sept. 25, 1998) (unpublished). In other words,

the jury could have found murder to have been the natural

and probable consequence of the target offenses.

In sum, in order to avoid the United States Supreme

Court’s characterization of California aiding and abetting law

in Duenas-Alvarez, Sales attempts to show there is something
10 SALES V. SESSIONS

different or special about it. Sales makes the broad assertion

that aiding and abetting liability in California has swept

beyond the confines of Duenas-Alvarez, and has been used to

convict defendants of murder where the target offense did not

involve violent conduct or intent. This assertion is not borne

out by the decision in Cruz-Santos or by Sales’own case.

Sales here brought a gun in order to provide backup, and

loaded the weapon, which was then used to murder the

victim. The facts relating to the underlying conviction

demonstrate the law was not applied in any way in Sales’

case that differed from the law as described in DuenasAlvarez. Sales therefore does not meet the criteria recognized

in Duenas-Alvarez for a party who could show that matching

generic definitions nonetheless disguised a difference in the

breadth of liability.

Sales also argues that federal criminal law may have

narrowed to demand direct proof of intent to aid or abet the

crime of conviction. The Supreme Court’s opinion in

Duenas-Alvarez described proof of aiding and abetting

through the doctrine of natural and probable consequences as

the law of both state and federal jurisdictions. Sales directs

us on appeal to the Supreme Court’s more recent decision in

Rosemond v. United States, 134 S. Ct. 1240 (2014). There

the Court addressed the question of the specific intent

required to be convicted of aiding and abetting the crime of

using a gun in a drug transaction. Reversing the conviction,

the Court held that the jury was instructed only that the

defendant must have known of the transaction, but should

also have been instructed that the defendant must have known

about the gun. The Court said the jury must find that the

“defendant has chosen, with full knowledge, to participate in

the illegal scheme.” Id. at 1250. The case does not help

Sales, for it did not involve application of the natural and
SALES V. SESSIONS 11

probable consequences doctrine. Moreover, the Court

expressly noted that it was not reaching the question of how

the natural and probable consequences doctrine applied in

accomplice liability. See id. at 1248 n.7.

Thus, Rosemond did not function to change our

understanding of the generic definition of the natural and

probable consequences doctrine under federal law from that

laid down by the Supreme Court in Duenas-Alvarez. Even if

Rosemond did somewhat narrow the generic definition of

accomplice liability under federal law by requiring full

knowledge of the underlying circumstances, Sales, unlike

Rosemond, chose, with “full knowledge, to participate” in the

target offense. See id. There is nothing special about

California law that brings it or Sales conduct outside the

generic definition of aiding and abetting.

Accordingly, the BIA correctly ruled that Sales’ 1995

conviction of second degree murder as an aider and abettor

was an aggravated felony for purposes of the removal

proceedings.

The petition for review is DENIED.