Two-For-One: Kansas Supreme Court Rules That Carjacker Can be Convicted of Aggravated Robbery of Car’s Passenger, Premeditation Can be Formed in Five Seconds 

State v. Mendez, 559 P.3d 792 (Kan. 2024).

Author: Thea Hack, Staff Editor

Issues: (1) In the context of a carjacking, can aggravated robbery of a vehicle be committed against a non-owner passenger of the vehicle?  (2) Can premeditation be formed in five seconds? 

Answers: Yes to both.  (1) Aggravated robbery is committed if any person in the vehicle, including a passenger, is forced out “by force or by threat of bodily harm” by a person “armed with a dangerous weapon.”^[1]  (2) Five seconds is enough time for an “internal second thought,” as required for premeditation. 

Facts: During a crime spree, defendant Mendez stole a car from a driver and passenger at gunpoint.  Later, Mendez and others drove up to five college football players leaving a party.  After a verbal exchange, Mendez started driving away, but stopped moments later.  Mendez and passengers then began shooting at the players, injuring one and killing another. 

Mendez was convicted of two aggravated robbery counts—one for the driver and one for the passenger, one count of premeditated first-degree murder, and four counts of attempted premeditated first-degree murder.  Mendez challenged the aggravated robbery conviction with respect to the passenger, arguing that the passenger did not have the requisite possession of the vehicle to be robbed of it.  Mendez also challenged the premeditated murder convictions, claiming that the prosecution erred in asserting in its closing argument that premeditation can be formed in just one or five seconds. 

Discussion: (1) The Kansas Supreme Court rejected Mendez’s challenge to the aggravated robbery conviction, reasoning that the passenger had “some degree of possession and control” of the car because he would have remained in the vehicle but for Mendez’s violence and intimidation.^[2]  Furthermore, the court held that the robbery convictions were not multiplicitous, implying that carjackers may be convicted of as many aggravated robbery counts as there are victims forced out of the vehicle. 

(2) The court held that premeditation cannot be formed in one second, but it can be formed in five seconds.  Premeditation requires only enough time for “an internal ‘second thought’ or a hesitation to arise.”^[3]  Thus, the “five seconds” instruction was not erroneous.  The court concluded that the interval and circumstances between the verbal exchange and the shooting provided sufficient evidence of premeditation. 

Key Authorities: Kan. Stat. Ann. § 21-5420; State v. Dale, 474 P.3d 291 (Kan. 2020); State v. Stanley, 478 P.3d 324 (Kan. 2020).

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^[1]  Kan. Stat. Ann. § 21-5420.

^[2]  State v. Dale, 474 P.3d 291, 302 (Kan. 2020) (a robbery victim has possession or control of property when the “possession or control [is] so immediate that violence or intimidation is essential to sunder it.”).

^[3]  State v. Mendez, 559 P.3d 792, 809–10 (Kan. 2024) (citing State v. Stanley, 478 P.3d 324, 335 (Kan. 2020)).