F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C O R N E L I O D E L

A C R U Z S A L E S J R ., AKA Cornelio Dela Cruz Sales, AKA Cornelio De L a Cruz Sales, AKA J on Dela Cruz Sales, P etitioner
,

v

.

J E F F E R S O N B

. S E S S I O N S I I I , Attorney General, Respondent. N o. 15-70885

Ag ency No. A029-556-125

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted May 19, 2017 San F rancisco, California

F iled Aug ust 18, 2017

B efore: Mary

M. Schroeder and Mary H. Murg uia, Circuit J udg es, and J on P. McCalla, * District J udg e.
Opinion by

J udg e Schroeder

* T h e H o n orab le J o n P

. McCalla, Un i ted States District J u d g e f o r th e W estern District o f

T en n essee, sittin g b y

d esig n atio n

.S A L E S V

. S E S S I O N S 2

SUMMARY * *

Im m igration

The panel denied Cornelio Dela Cruz Sal es ’ p etition for review of the B oard of I mmig ration Appeals ’ decision concluding that his Cal i f ornia conviction for second deg r ee murder, based on a n a iding and abetting theory
, made him removable for having been convicted of an ag g ravated felony

.

The panel held that California law on aiding and a betting
, which looks to the natural and probable consequences of an act the defendant intended, had n ot materially chang e d since the Supreme Court decided Gonzalez v

. D uenas-Alvarez
, 549 U.S. 1 8 3 (2007). I n Duenas-Alvarez
, the Supreme Court h eld that a bsent a showing that the law had been applied in some “special” way , a California conviction for aiding and abetting

a removable o ffense is also a removable offense. T h e panel concluded that there is nothing special about the C alifornia aiding a nd abetting law that bring s it or Sales’ con d u ct outside the g eneric d e f inition of aiding and a betting

. According ly
, the panel held that the B oard correctly ruled that Sales’ conviction for second deg ree murde r a s a n aider a nd abettor w as an ag g ravated felony for purposes o f his removal proceeding s.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S A L E S V

. S E S S I O N S 3

COUNSEL

Harry J

. Moren (arg

ued), Alex ander K. T alarides, a nd J ames N. Kramer, O rrick Herring ton & Sutcliffe L L P
, San F rancisco, California, for Petitioner.

J esse L

. B usen (argu e d )
, Trial A ttorney ; Eric W

. Marsteller and Claire L

. W orkman, Senior L itig ation Counsel; Office o f I mmig r a tion L itiga t i on, Civil Division, United States Department of J ustice, W ashing ton, D.C.; for Respondent.

OP INION

SCHROEDER, Circuit J udg e:

Cornelio Dela Cruz Sales, J r., a native and citiz en of the Philippines, petitions for review of the B oard of I mmig r ation A p p e a ls’s ( “B I A”) 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 c o nvicted of a n a g g ravated felony

. W h en he was eig hteen, Sales was convicted in California of second deg ree murder on an aiding and abetting theory

. On his release, after nineteen y ears of incarceration, he was placed in removal proceeding s.

There is n o dispute that a California conviction for second deg ree murder is an a g g ravated f elony under federal law. The p r incipal issue w e must decide is whether, g iven the
nature of the California law of n atural and probable
consequences, the conviction f or aiding and a

betting murder

on a natural and probable consequences theory also qualifies

as an a g g ravated felony

. W e ag r ee with the B I A that it does.S A L E S V

. S E S S I O N S 4

The Supreme Court, in 2007, reviewed California’s l a w

on aiding and abetting
, which like that of many jurisdictions looks to the natural and probable consequences of an act the defendant intended. Go n z a l e z v. Duenas-Alvarez
, 549 U.S. 183
, 1 9 1–93 (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 r emovable offense is also a removable offense. Id. a t 191. W e n ow hold that California law, has not materially chang ed since DuenasAlvarez was decided and was not a pplied in any “special”
way in Sales’ case. W e therefore deny the petition.

BACK G ROUND

Sales w as convicted in 1 9 9 5 in California of second deg ree murder. W e summariz e what happened as reported in the unpublished Court of A ppeal d e cision affirming the conviction. See People v. Khounsiriwong, et al. No. C023718 (Cal. Ct. App., Sept. 25, 1998) (unpublished).

The crime occurred on J anuary 14, 1995, after a n incident where Sales and a g r oup o f friends, including V ilay Khounsiriwong and Klo i Kh o unsirivong
, drove to a h ouse party where another friend was reported to b e in trouble. There was testimony

he needed “backup.” Sales was armed with a p istol. W hen they arrived, Sales helped load the pistol. Vilay Khounsiriwong then took the pistol, g ot out o f the car, and approached the house. Spotting a nother y oung man in a

car parked a t the curb, Khoun s i r i w o n g opened fire into the car, killing the victim.

Khounsiriwong
, Khounsirivong a n d Sales were tried tog ether. Vilay Khounsiriwong w as convicted as a principal for first d eg ree murder, while Sales a nd the car’s driver, KloiS A L E S V

. S E S S I O N S 5

Khounsirivong
, were each convicted of second d e gree murder. The jury was instructed that Sales a nd Khounsirivong c ould e ach b e convicted of se c o n d deg r ee murder if he h ad intended to aid in commission o f one o r

m ore of several targ et offenses (possession of a conc e a l e d
weapon, p o s session of a loaded weapon, possession of a loaded weapon in a motor vehicle, bra n d i shing a weapon, assault, and ass a u l t wi t h a d eadly weapon), and if the jury found that murder w as a natural and p robable consequence o f the targ et offense. The California Court of Appeal affirmed Sales’ conviction on d irect appeal. Sales spent the nex t nineteen y ears in prison, and removal p roceeding s followed.

The I mmig ration J u dg e ordered Sales removed as h aving been convicted o f an ag g rav a t e d f elony

. B efore the B I A
, Sales arg ued that his conviction was not a match for g eneric murder, and thus could not qualify a s an a gg ravated felony because, under California’s application o f t h e natural a nd probable consequences doctrine, h e co u l d have been convicted of murder without having the requisite menta l state. The B I A rejected his a

r g ument, f

inding t h a t this arg ument

was f oreclosed by Duenas-Alvarez
, and noting the Supreme Court had “rejected the respondent’s arg ument that there was any thing ‘special’ a b o u t California’s version of [ the natural and p robable c onsequences] doctrine.” The B I A thus found his conviction was a match for ai d i n g and abetting g eneric murder and therefore an ag g ravated felony

. He timely petitioned this court for review.

ANALYSIS

Our consideration of Sales’ pe t i t ion for review beg ins with Duenas-Alvarez
, w here the Supreme Court, reversing a Ninth Circuit decision, held tha t a n individual convicted o fS A L E S V

. S E S S I O N S 6

aiding and abetting a g eneric theft c ri m e i n California h ad committed an ag g ravated felony

. Duenas-Alvarez
, 549 U.S.
at 187–89. T his court had held that althoug h the g e neric theft offense was an ag g ravat e d fe lony
, aiding and abetting the
g eneric theft offense was not. Duenas-Alvarez did n ot take that p osition before the Supreme Court. I nstead he a r g u ed that h e had n ot committed an ag g ravated felony because California’s application of the natural and probable consequences doctrine for aiding and abetting offenses went bey ond the g eneric application of natu r a l a nd probable
consequences. Id. at 190.

Duenas-Alvarez relied on three California Court o f Appeal decisions for support, b ut the Supreme Court rejected his theory that any of those demonstrated there was a ny thing special about California’s a pplicat i o n of the natural a nd probable consequences doctrine. See id. at 193. T h e Court, however, did recog niz e that a future p arty mi ght be able to show that matching g eneric definitions might d isg uise a sig nificant difference in the b readth of l i a b ility
, provided there was

a realist ic probability
, n ot a theoretical possibility
, that the State w ould apply its
statute to conduct that falls outside the g eneric definition of a crime. To s h o w t hat realistic probability
, an offender, o f course, may show that the statute was so applied in his own c ase. B u t he must a t l east p oint to his own case o r other cases in which the state c ourts i n f a ct d i d apply the statute in the specia l (nong eneric) manner for which he arg ues.S A L E S V

. S E S S I O N S 7

Id. at 1 93. Nonetheless, in the Court’s view, Duenas-Alvarez had made “ no such showing ” and h ad at most shown a “theoretical possibility ” that C alifornia law would allow a conviction for conduct o utside the scope of g eneric ai d i n g and abetting liability
, whereas he needed to show a “realistic probability .” Id. at 193.

Sales contends that he has made a showing s u fficient to meet the requirements the Supreme Court set forth for a result different than the r esult in Duenas-Alvarez

. He arg ues that California law on aiding and abetting is broade r than that described in Duenas-Alvarez
, so as to reach crimes removed from the defendant’s actual conduct and thus bey ond w hat the Supreme Court env isioned as “natural and probable consequences.” Sales cites a recent decision by the California Court of Appeal that he a rg ues d emonstrates that California allows a defendant to be convicted o f murder on a t h eory o f

n a tural and probable consequences w hen the defendant intended o nly to aid and/or abet a n on-violent crime. People

v. Cruz-Santos
, 2015 W L 7282040 (Cal. Ct. App. Nov. 18, 2015) (unpublished). Sales also cites to the facts o f his own case. His arg

ument is unconvincing

.

I n Cruz-Santos
, t h e list of targ et offenses included cultivation of marijuana, and the defendant was c onvicted o f second deg r ee murder. Id. at *1, *5. T his was not as strang e

as it may sound, f

o r t h e j u r y found the murder to have been

a natural and probable c o nsequen ce of a larg e marijuana
g rowing operation patrolled by heavily armed g ua rd s

. The opinion of the Court of Appeal affirming t h e conviction emphasiz ed the presence of loaded weapons at the marijuana
g rowing o peration a

nd threats of violence by their use in

co n n ection with g uarding the enterprise. F urther, both defendants were involved with threatening the victim and theS A L E S V

. S E S S I O N S 8

e v i d en ce was unclear as to which defendant fired the fata l shot. I t se e m s a p parent that a jury could easily have f ound violent intent and a p p lied the natural and probable
consequences doctrine under these facts. The Cali f o r n ia Supreme Court denied r e v i ew , s o there is no authoritative

o p i nion of the state’s hig hest court in the case. Sales nevertheless reads the case to illustrate that Cali f o r nia, distinct from other jurisdictions, will convict a defendant o f murder as the natural and proba b le consequence of nonviolent conduct.

Sales attempts to b u t t ress his r eading of Cruz-Santos b y citing to J ustice L iu’s statement dissenting from the denial o f the petition for review i n the California Supreme Court. J ustice L iu arg ued that Cruz-Santos allowed too g reat a g ap in culpability between a targ et offense of cultivation o f marijuana a

nd the c onsequential conviction of murder. Id. at *21 (L iu, J
., dissenting ). The Chief J ustice’s concurrence in the denial of the petition for review, j o i n ed b y two other justices, noted that “reasonable minds [ co uld] differ about” J ustice L iu’s characteriz ation of the Cruz-Santos record. Id. at *18 (Cantil-Sakouy e, C.J ., concurring ).

W e therefore cannot read much into the opinion o f t h e J ustices in Cruz-Santos a bout the current state of the aiding and abetting law of California. There is certainly nothing that would sug g est that California applied the doctrine of natural and probable consequences at t he time o f 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 Cali f o rnia Supreme Court discussion of aiding a

nd abetting culpability that emphasiz ed the vicarious nature of the liability the doctrine imposed. SeeS A L E S V

. S E S S I O N S 9

People v. Chiu
, 3 2 5 P .3d 972 (Cal. 2014). The Court h eld that the n atural and probable consequences doctrine cannot be used to impose aider and abette r l i ab i lity for first deg r ee

m urder because of the subjective element of premeditat i o n , but the Court reaffirmed aider and abetter liability for second d e gree murder b ecause “second d eg ree murder i s commensurate with a defendant’s culpability for aid ing a nd abetting a targ et crime that would naturally
, prob a b l y a nd foreseeably result in a murder u nder the natural and probable
consequences doctrine.” Chiu
, 325 P.3d at 980. The doctrine remains alive and well in California.

T h e f acts of Sales’ case a

re also not a convinc i n g demonstr at i o n that California law is “special.” The applicability of th e natural and p robable consequences doctrine was actually raised, at le ast indirectly
, in the California courts in Sales’ own case. Sales arg ued on appeal he could not have been found g u ilty of the serious crime o f murder when the targ et offenses o f weapons charg e s included

w h at he reg arded as trivial o ffenses. The state court dismissed this sug g estion, p ointing out t h at the jury was properly instructed o n the factual issues o f foreseeability
, a nd that the “intentional shooting resu l ting in death stemming from a iding an armed confrontation is not unforeseeable as a matter o f law.” T h e court concluded that “[ a] rming a nd transporting another for such a purpose is not trivial behavior; it is d e a d l y serious.” S

ee People v. Khounsiriwong, e t al.
, No. C023718 (Sept. 2 5, 1998) ( unpublished). I n other words, the jury could have found murder to have been th e n a t ural and probable consequence of the targ et offenses.

I n sum, in order to avoid the United St a t e s Supreme Court’s characteriz ation o f California aiding and a betting law in D uenas-Alvarez
, Sales attempts to show there is somethingS A L E S V

. S E S S I O N S 10

different or special about it. Sales makes the broad assertion that aiding and abetting liability in California has swe p t bey ond the confines of Duenas-Alvarez
, and has been used to convict defendants of murder where the targ et offense did not involve violent conduct o r intent. This assertion is not borne

o u t b y the decision in Cruz-Santos or by Sales’own case. Sal e s h er e broug ht a g un in order to provide backup, a nd loaded the weapon, which was then used to murd e r the victim. T h e facts relating to the underlying conviction demonstrate t h e law was n ot applied in any w ay in Sales’

case that differed from the law as d escribed in DuenasAlvarez. Sales therefore does not meet the criteria recog niz ed in Duenas-Alvarez for a party who could show that matching
g eneric definitions nonethel e ss disg uised a difference in the breadth of liability

.

Sales also arg ues that f

e d eral criminal l a w m a y have narrowed to demand direct proof of intent to aid or ab e t t h e crime of co n viction. The Supreme Court’s opinion in Duenas-Alv a rez described proof of aiding and abetting throug h the doctrine o f natural and probable consequences a s the law o f both state and federal jurisdi ct ions. Sales directs

us on appeal to the Supreme Court’s more recent decision in Rosemond v. U

nited States
, 134 S. Ct. 1240 ( 2 0 1 4). There the Court address e d t he question o f the specific intent required to b e c o n v i cted of a iding and abetting the crime o f using a g un in a drug transaction. Reversing the conviction, the Court held that the jury was instructed onl y that the defendant mus t have known of the transaction, but should also have been instructed that the defendant must have known about the g un. The Court s a i d t h e j ury must find that the “defendant has chosen, with full knowledg e, to p articipate in the illeg al scheme.” Id. at 1250. The case d oes not h elp Sales, for it d id not involve ap p l i c a tion of the n a tural a ndS A L E S V

. S E S S I O N S 11

probable consequences d o c trine. Moreover, the Court

ex p ressly noted that it was not reaching the question of how the natural and probab l e consequences doctrine applied in accomplice liability

. See id. at 1248 n.7.

Thus, Rosemond did not function to ch an g e our understanding of the g eneric definition of the natu r al a nd probable consequences doctrine under federal law fr o m that laid down b y the Supreme Court in Duenas-Alvarez. Even if Rosemond did somewhat narrow the g ener i c definition o f accomplice liab i l i ty u nder federal law by requiring full knowledg e of the u n derly ing c ircumstances, Sales, unlike Rosemond, chose, with “full knowledg e, to participate” in the targ e t offense. See id. There is n othing special about California law that bring s it or Sales cond u ct o utside the
g eneric definition of aiding and abetting

. According ly
, the B I A correctly ruled that Sal e s’ 1995 conviction of second deg ree murder as a n a i d e r and abettor

was an ag g ravated felo n y f or purposes o f the removal proceeding s.

The petition for review is DENIED

.