Cornelio Sales Jr. v. Jefferson Sessions

Filing

FILED OPINION (MARY M. SCHROEDER, MARY H. MURGUIA and JON P. MCCALLA) DENIED. Judge: MMS Authoring, FILED AND ENTERED JUDGMENT. [10549672]

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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,

No. 15-70885
Agency No.
A029-556-125

v.

OPINION

JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.

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.

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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.

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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.

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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

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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 mental state.
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

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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.

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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

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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

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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

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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

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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.