An alien convicted of “a theft offense … for which the term of imprisonment [is] at least one year” is subject to deportation. In California aiding and abetting someone in ‘taking a vehicle not his own without consent … is guilty of a public offense.” The question here is whether “theft offense” includes aiding and abetting a theft offense.
Taylor v. U.S. defined a “burglary” under the Armed Career Criminal Act as “burglary in the generic sense in which the term is now used in the criminal codes of most States” but suggested that a sentencing court could go beyond the mere fact of conviction where the State’s law deviated from generic burglary. The issue then is whether the elements of generic burglary were proved.
A Ninth Circuit case, Penuliar v. Ashcroft, held that California’s law swept more broadly than generic theft for its lack of an element of taking control of the property. Theft is broadly defined, and the Ninth Circuit defined it, as “taking of property or an exercise of control over property without consent with the criminal intent to deprive an owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Under common law participants are either (1) first degree principals, (2) second degree principals, (3) accessories before the fact, or (4) accessories after the fact (1,2, and 3 have been collapsed).
Under California law an aider and abetter is guilty of the crime he intends, and those that “naturally and probably” result from his intended crime. This is not a deviation from the norm, and to prove such deviation a defendant must present a concrete case, not just hypothetical possibilities, demonstrating that the law would be applied against the generic definition of the crime.
Justice Stevens, concurring in part and dissenting in part is uneasy about interpreting state law before the appellate court. 
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