CORRECTED OPINION NOT DESIGNATED FOR PUBLICATION. No. 113,468 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellant,

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1 CORRECTED OPINION NOT DESIGNATED FOR PUBLICATION No. 113,468 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellant, v. LOREN MALIK WISEMAN, Appellee. MEMORANDUM OPINION Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed October 14, Reversed and remanded with directions. William C. Votypka, deputy county attorney, Nicholas C. Vrana, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellant. Janine Cox and Randall Hodgkinson, of Kansas Appellate Defender Office, for appellee. Before LEBEN, P.J., PIERRON and MCANANY, JJ. LEBEN, J.: Loren Wiseman and his girlfriend had just parked the car at a grocery store when a man approached. He began tapping on Wiseman's window, pulling on the locked door handle, using obscenities, and demanding that Wiseman get out of the car to fight him. Neither Wiseman nor his girlfriend knew the man. According to Wiseman, the man then threatened to kill him, his girlfriend, and her family.

2 At this point, Wiseman pulled out his gun from the glove box. Wiseman told the man to leave them alone or he would shoot and gave the man to the count of five to leave. When the man didn't leave, Wiseman gave him to the count of ten, and at the end of that countdown, he fired his gun three times, killing the man. The State charged him with first-degree premeditated murder, but Wiseman claimed he was immune from prosecution because he had acted in self-defense and in the defense of his girlfriend. Kansas has a "stand your ground" law, K.S.A Supp to -5230, that can provide immunity when a person in a place where he or she has a right to be kills someone in self-defense instead of retreating to another place that's safer. See K.S.A Supp After conducting a hearing, the district court agreed with Wiseman and dismissed the charges. Under the Kansas stand-your-ground law, a defendant who uses deadly force in self-defense or in defense of another person is immune from prosecution if he or she had a reasonable belief that deadly force was necessary to prevent imminent death or great bodily harm. K.S.A Supp (b); Once the defendant invokes immunity from prosecution, our Supreme Court has determined that the State has the burden to establish probable cause that the defendant was not justified in using deadly force. State v. Ultreras, 296 Kan. 828, Syl. 1-2, 295 P.3d 1020 (2013). What our Supreme Court did not tell us in Ultreras, however, is how the district court judge is supposed to weigh the evidence in determining whether the State has established probable cause. There are two potential answers to that question. In the traditional preliminary hearing, at which the State must show that there's probable cause to believe a crime has been committed and that the defendant committed it, the district court must look at all evidence in the light most favorable to the State. State v. Washington, 293 Kan. 732, 734, 268 P.3d 475 (2012). The State urges that this applies to determining stand-your-ground immunity too. 2

3 But for some types of pretrial motions, the district court makes its own factual findings, which we review only to be sure they are supported by substantial evidence even if other evidence might support a different conclusion. State v. Keenan, 304 Kan. 986, 993, 377 P.3d 439 (2016) (providing that an appellate court reviews decision on motion to suppress evidence by determining whether factual findings of district court are supported by substantial evidence and then independently reviewing the district court's legal conclusions). Under this approach, the district court determines what facts are more probably true than not rather than viewing the evidence in the light most favorable to the State. The defendant urges that this approach be used when determining stand-yourground immunity, and that's what the district court did in Wiseman's case. Resolving the dispute over how district courts should view the evidence when determining immunity is the main question now before us. If we decide that the district court erred in dismissing the criminal charge against Wiseman based on the immunity statute, then we must answer a second question. The State charged Wiseman with first-degree murder, which requires premeditation. The district court concluded that the State's evidence would be insufficient to show premeditation. On appeal, the State also asks that we reverse the district court on that issue. With that overview of the issues before us, we next review what we know about what happened and how these issues were handled in the district court. FACTUAL AND PROCEDURAL BACKGROUND We begin with the basic facts related by Wiseman and his girlfriend, Alexandra Escarcega; for facts that might be disputed, we will indicate when the information comes from someone else. 3

4 Around 5 p.m. on December 6, 2014, Wiseman rode with Escarcega to a Dillon's grocery store in Garden City. Wiseman and Escarcega lived in Wichita but had held a birthday party for their daughter at the YMCA in Garden City, where Escarcega's family lived. As they passed the Dillon's store entrance in their car, two men came out; one of them gestured at Wiseman, making what Wiseman and Escarcega thought was a gang symbol and then using his fingers to simulate shooting a gun. Wiseman told Escarcega to park far away from the men, which she did. At the time Escarcega parked the car, the doors were locked and the windows rolled up. Before they could get out of the car, the man who had gestured at Wiseman, Jeremy Pascascio, walked up to the passenger side door. Pascascio pulled on the door handle, asked Wiseman to roll down the window, and began knocking on the window and demanding repeatedly that Wiseman get out of the car. Wiseman told Pascascio, "No. I don't know who you are," and told him to leave them alone. According to a witness, Pascascio said to Wiseman, "I know your bitch" and told him that he had the car's tag number. Wiseman testified that Pascascio had said, "[M]e and my boys already have your tag number, so you better not fucking leave, because we're going to fuck you up." According to witnesses, Pascascio also called Wiseman a "pussy" and told him to "fight me like a man." Wiseman yelled at Escarcega to get them out of there, but she mistakenly grabbed her mother's car keys and couldn't find her own keys, which had fallen to the floor underneath her seat. Wiseman and Escarcega testified that Pascascio had threatened to kill them and Escarcega's family. Wiseman testified that it was after that threat that he had taken his gun out from the glove box and rested it on his lap. He removed it from the holster to show Pascascio 4

5 but kept the gun pointed toward the ground with the safety on; at some point, Wiseman took the safety off, cocked the gun, and put the safety back on. Wiseman testified that he had told Pascascio, "You need to leave us alone or I will shoot you." Pascascio allegedly responded, "Fuck you. You think I'm scared of you or your gun? You're going to have to kill me." Wiseman told Pascascio that he would give Pascascio 5 seconds to leave or he would shoot him; Wiseman counted down from 5 to 0 but did not shoot Pascascio. Wiseman told police that he had begun counting down because he didn't want to just stay there and have a standoff. According to Wiseman, Pascascio crouched down to look at Wiseman through the window and called Wiseman a "bitch" and a "pussy." Wiseman testified that Pascascio had kept threatening to kill him and taunting him. Escarcega testified that Pascascio had told Wiseman to "[d]o it, do it," which echoed what another witness reported. Wiseman then told Pascascio that he would give him 10 seconds to leave or he would shoot. According to Wiseman, Pascascio responded by laughing, calling Wiseman a "bitch," and telling Wiseman to "[g]et the fuck out of the car." Wiseman testified that after he had reached 3 in his countdown from 10, Pascascio had said, "I've got something for you, Bitch" and reached for his waistband. Wiseman stated that it was at this point that he rolled down the window, clicked the safety off, and fired two to three times without aiming. He testified that he had been ducking and leaning toward Escarcega when he fired. Wiseman admitted that he never saw a gun on Pascascio but thought he had one. Before the shooting, Wiseman testified that he said to Escarcega, "I really don't want to shoot this dude, but I know he's not going to leave." He also testified that "[a]fter [Pascascio] first called my bluff [after the first countdown], that's when I knew I was going to have to shoot him." 5

6 By the time Wiseman fired the shots, Escarcega had found her keys; after the shooting, the two drove back to the YMCA, where they called police and reported what had happened. Wiseman said he did not know at the time whether his shots had struck Pascascio. Responding to witnesses' 911 calls, police arrived at the Dillon's parking lot and found that Pascascio had been shot in the head. He died at the hospital from his injuries. No weapons were found on or near him. Other officers came to the YMCA and arrested Wiseman and Escarcega. They interviewed Wiseman on and off over a 12-hour period about the shooting. Escarcega and Wiseman both denied knowing Pascascio, and detectives were unable to establish any connection between the two and Pascascio. Wiseman told police that when he had fired the shots, Pascascio had lifted up his shirt and had been standing 3 to 4 feet from the car. He said that he had "never pulled a gun and not shot it" and that "[he had] sat there and thought about shooting [Pascascio].'' He also told police that he had shot Pascascio because he felt threatened; when the interviewing officer asked him to explain specifically why he felt threatened, he replied, "I just felt the whole vibe." Wiseman did not initially tell police that Pascascio had pulled the door handle when he first approached the car, as he later testified. The State charged Wiseman with the premeditated first-degree murder of Pascascio. Wiseman filed a motion claiming immunity from prosecution because he had acted in self-defense. Under K.S.A Supp , a person who lawfully uses force to defend a person or property "is immune from criminal prosecution," which "includes arrest, detention in custody and charging or prosecution." On February 17, 2015, the district court held a preliminary hearing and also considered whether to grant Wiseman's motion for immunity. A preliminary hearing is a proceeding held after the defendant has been charged during which the State calls 6

7 witnesses and presents evidence to a magistrate or district judge to establish that a crime was committed and that there is probable cause to believe the defendant committed that crime. K.S.A Supp Probable cause at a preliminary hearing means there is sufficient evidence to cause "'a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.'" State v. Washington, 293 Kan. 732, , 268 P.3d 475 (2012) (quoting State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 [2000]). If the court determines there is probable cause, the case may proceed to trial; otherwise, the court will dismiss the charges and release the defendant. K.S.A Supp ; see State v. Jones, 233 Kan. 170, , 660 P.2d 965 (1983). Since the purpose of the preliminary hearing is simply to determine whether there's enough evidence to go to trial (where the jury would decide the facts), the judge must view the evidence in the light most favorable to the State. Washington, 293 Kan. at 734. In addition to Wiseman, Escarcega, and police officers, several others who had seen at least some of the events testified at the preliminary hearing. Shaylee Meyers said that she had heard and seen Pascascio arguing with Wiseman while walking to her car. She heard Pascascio repeatedly tell Wiseman to "[g]et out of the fucking car"' and heard him say, "Put the gun down. Fight me like a man." She decided that she needed to get away from the scene and even warned passersby as she left; as she was leaving, she heard three gunshots. She then saw police heading toward the scene and returned to talk with officers about what she had seen. Jeffrey Southern testified that he had first thought Pascascio was "a kid messing around in the parking lot" but had then seen "a gentleman inside the vehicle... brandishing a firearm." According to Southern, Pascascio backed away and then approached Escarcega's car a few times "in a crouched position or what appeared to be a crouched position, somewhat in a defensive manner." Southern testified that Pascascio had "appeared to hug the vehicle" and had his hands up in front of his body at shoulder 7

8 height as he approached and backed away. Southern was leaving the scene when the shooting occurred and saw the second and third shots. He said it had appeared that Pascascio had been backing away from the car when he was shot. After the shooting, Southern followed Escarcega and Wiseman to the YMCA and reported their location to police. Taylor Robinson and his wife, Michelle, were parked near Escarcega's car, and both testified about what they saw. Taylor testified that he had just exited the store when a young woman driving by warned him that something was happening in the parking lot. Michelle, who had stayed in the car while he was shopping, was calling 911 when he reached the car. He testified that from his car, he had been able to see Pascascio standing "pretty far away from [Escarcega's] car." According to Taylor, as he was backing the car out to leave the scene, he saw Wiseman roll down his window, holding the gun at shoulder height with his wrist extended out, and fire three shots. Michelle testified that she had seen Pascascio approach Escarcega's car as if he "was coming up to say hi to someone," knock on the passenger window, and ask the passenger to roll down the window, but she said it soon escalated to "[g]et out of the car." She heard Pascascio tell Wiseman that he had the car's tag number and knew "[his] bitch'' and then heard him say, "Do it, do it, do it." Michelle testified that Pascascio had pulled up his shirt with both hands and said, "I don't have anything." According to Michelle, her husband then returned to the car, and she called 911; she was on the phone when she heard three shots. Michelle acknowledged that she had only remembered Pascascio raising up his shirt later, after her initial interviews with police; she told the police about it at a follow-up interview. On cross-examination, she agreed that Pascascio had raised his shirt in the middle of the encounter. She testified that she never saw Pascascio back away from and then re-approach the car. 8

9 In a written ruling, the district court concluded that Wiseman was immune from prosecution, dismissed the charge against him, and ordered Wiseman released from pretrial custody. The court also announced the rulings it would have made in determining had there been no immunity whether the State had shown probable cause for the first-degree-murder charge. The court found there was probable cause that Pascascio died after being shot and that Wiseman had intentionally fired the gun. But the court found that the State had failed to present sufficient evidence of premeditation to support charging Wiseman with first-degree murder. Accordingly, the court determined that second-degree murder was the most serious crime that Wiseman could be charged with if its ruling on immunity were to be reversed. See State v. Killings, 301 Kan. 214, Syl. 1, 340 P.3d 1186 (2015) (noting that the only difference between first-degree murder and second-degree murder is the element of premeditation). The district court set out several specific factual findings. Among other things, the court noted that six eyewitnesses had provided statements but that none of them testified that Pascascio had been moving away from the confrontation when he was killed. The district court refers to Escarcega as Wiseman's fiancée; Wisemane testified that he sometimes referred to her as his fiancée or as his wife, while she testified that Wiseman was her boyfriend: "6. Loren Wiseman and his fiancé[e] were lawfully driving into the parking lot of Dillon's East in Garden City, Kansas. "7. Throughout the entire event, Loren Wiseman and his fiancé[e], [Alexandra Escarcega,] were inside an 'occupied vehicle' and lawfully in the parking lot. "8. That neither Loren Wiseman nor his fiancé[e] had any duty to retreat from the situation they found themselves in on December 6,

10 "10. Mr. Pascascio apparently followed Mr. Wiseman and his fiancé[e] to the far east end of the Dillon's parking lot which the Court calculates to be about ¾ of a city block from where he is reported to have parked his car. "11. Mr. Wiseman was in the front passenger seat and his fiancé[e] was driving the car. The passenger window was all the way up and the doors were locked. "12. Mr. Pascascio approached the Defendant's car and knocked on the window demanding that [the] window be lowered..... "14. The scene at the Dillon's Parking Lot escalated in mere minutes into a scary and dangerous situation.... Witness [Shaylee Meyers] testified that she stopped several Dillon's patrons and urged them to take cover. The fear and danger level was escalating rapidly during the incident that took only about 5 minutes. "15. Mr. Wiseman and his fiancé[e] finally pulled out in her car just seconds after the gun shots were fired and went around the block to the YMCA where they called the Police to report the shooting. The two persons from the car were quickly taken into custody and have been unable to visit with each other from December 6 to the date of this hearing. "16. The fiancé[e] reported on December 6 that Mr. Pascascio attempted several times to force entry into the car grabbing the door handle and yanking on it. Mr. Wiseman made a similar claim at a later date and testified at the hearing that [Pascascio] was trying to force entry. "17. During the confusing 5 minute confrontation, one or more witness[es] testified to hearing Mr. Pascascio make the following threats or statements in English and more in Spanish that were either not understood or indistinguishable: a. 'Fuck you pussy' 'You're a bitch... you and your girl' 10

11 b. Him and his la familia are going to get us and they and his homies already have his tag # and threat[en] they are going to follow them and you better watch your back c. Fuck you bitch if you think I'm scared of your gun you are going to have to kill me d. 'Do it, do it, do it' [Michelle Robinson] e. 'Put the gun down and get out of the car and fight me like a man. You're a pussy, get out of the car. Put the fucking gun down!' [Shaylee Meyer] f. 'You that nigga that fucked with my homie'... his homie right there and he has my tags... he's gon[n]a 'kill you, your bitch and her family' [Escarcega] "18. The above statements were primarily drawn from written statements of the 6 eye witnesses of the event that testified in Court. None of them testified that the deceased was drawing [a]way from the confrontation that he initiated." The district court ruled that the State had failed to prove by probable cause that no immunity applies: "Mr. Wiseman was in an occupied vehicle in a location where he had a right to be. Inside the locked vehicle was his fiancé[e] and himself. Mr. Pascascio initiated the confrontation and put himself in harm's way. [Pascascio] uttered threats of impending death or great bodily harm to the two occupants of the car and physically attempted several times to breach the locked door. Under the fear and threat caused by [Pascascio], the keys to the car were temporarily misplaced and escape from the apparent danger was not readily possible. Kansas law clearly sets out the fact that attempted escape is not a prerequisite duty of the occupants of the car." The court concluded that "[Pascascio's death] is not a criminal act in light of the immunity granted by statute in the State of Kansas" as "the State... failed to show by [] probable cause that said immunity did not apply." The State has appealed that ruling to this court. 11

12 ANALYSIS I. The District Court Wrongly Determined That Wiseman Was Immune from Prosecution. The Kansas Legislature has enacted a series of statutes addressing the use of force, including deadly force, in defense of a person or property. See K.S.A Supp et seq. By statute, the "use of deadly force" means the use of physical force that is likely to cause death or great bodily harm. K.S.A Supp (a)(2). A person is justified in using deadly force to protect oneself or another person or to prevent or stop an unlawful entry into the person's dwelling, workplace, or occupied vehicle if the person reasonably believes that using deadly force is necessary to prevent imminent death or great bodily harm. K.S.A Supp (b); K.S.A Supp (b). Under these statutes, the person using force is not required to retreat or attempt to escape. K.S.A Supp (c); K.S.A Supp (c); K.S.A Supp Because there is no duty to retreat, these statutes are commonly referred to as Kansas' "stand-your-ground" law. State v. Barlow, 303 Kan. 804, 814, 368 P.3d 331 (2016); see K.S.A Supp ("A person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duty to retreat and has the right to stand such person's ground...."). Under K.S.A Supp , a person who is justified in using force in defense of a person or property is generally immune from prosecution: "(a) A person who uses force which, subject to the provisions of K.S.A Supp , and amendments thereto, is justified pursuant to K.S.A Supp , or , and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such 12

13 officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, 'criminal prosecution' includes arrest, detention in custody and charging or prosecution of the defendant. "(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest. "(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause." In summary, a person is immune from prosecution for using deadly force only if that use of force was justified, and using deadly force is justified only if the person reasonably believed it was necessary to prevent imminent death or great bodily harm. K.S.A Supp ; K.S.A Supp (b). In McCracken v. Kohl, 286 Kan. 1114, Syl. 3, 191 P.3d 313 (2008), the Kansas Supreme Court held that invoking immunity from prosecution under K.S.A (now K.S.A Supp ) involves both a subjective and an objective element: (1) the person must have sincerely believed that using deadly force was necessary to defend himself or herself; and (2) a reasonable person in the same circumstances would have perceived that deadly force was necessary. See also State v. Jones, 298 Kan. 324, 332, 311 P.3d 1125 (2013) (noting McCracken described the prerequisites for claiming immunity under K.S.A ); State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 (2012) (discussing K.S.A [now K.S.A Supp ] in the context of self-defense theory at trial). The State contends that the district court erred when it found that Wiseman was immune from prosecution under K.S.A Supp primarily because it applied the wrong standards in evaluating the evidence. The State contends that the district court was required to look at the facts in the light most favorable to the State, as it would in a traditional preliminary hearing. Wiseman argues the district court properly determined 13

14 that he was immune from prosecution. Wiseman contends that the district court is free to make factual findings determining what is more probably true than not when deciding the immunity issue. The questions before us require that we interpret and apply K.S.A Supp and related statutes; so, as with other statutory-interpretation questions, we review the matter independently, with no required deference to the district court's conclusion. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). The starting point for our analysis is the leading decision of our Supreme Court interpreting this statute, State v. Ultreras, 296 Kan. 828, 295 P.3d 1020 (2013). In Ultreras, the court held that the State has the burden to establish probable cause to believe that a person's use of force was not justified and that, therefore, the person was not immune from prosecution. 295 Kan. 828, Syl The court explained that probable cause was the appropriate standard because it was the only one mentioned in the statute and that placing the burden of proof on the defendant would undermine the statute's language and purpose. 296 Kan. at The court reasoned that it would be inappropriate to read words into the statute to impose a higher burden than probable cause and that reading the statute to require the State show probable cause ensured the words in the statute would not be rendered meaningless. 296 Kan. at The court emphasized that this would introduce an additional requirement for the State beyond merely proving probable cause to believe the defendant had committed the crime charged: "Generally, a detached Kansas magistrate considering whether to issue a warrant or summons merely determines 'that there is probable cause to believe that a crime has been committed and that the defendant has committed it.' K.S.A (1). Under K.S.A [now K.S.A Supp ], however, once a defendant raises justified use-of-force immunity before a court, a probable cause determination must also include a determination that the defendant's use of force was not justified under K.S.A , 14

15 K.S.A , or K.S.A [now K.S.A Supp , K.S.A Supp , and K.S.A Supp , respectively]. Hence, the statute as written with a probable cause standard adds an additional requirement and is meaningful." 296 Kan. at 844. Under Ultreras, the State had to prove there was probable cause to believe that Wiseman used deadly force without legal justification. At a preliminary hearing, establishing probable cause requires providing sufficient evidence to cause "'a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.'" State v. Washington, 293 Kan. 732, 734, 268 P.3d 475 (2012); State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995). In the context of immunity under the stand-your-ground law, the State would have to show that the defendant was not justified in using deadly force. In other words, the State had the burden to prove that a person of ordinary prudence and caution could reasonably believe that when Wiseman shot Pascascio, Wiseman did not have a reasonable belief that deadly force was necessary to prevent imminent death or great bodily harm to himself or Escarcega. On appeal, the parties dispute what specific procedures the district court should use in evaluating immunity claims. The Ultreras court noted that the immunity statutes "provide little guidance as to the procedural aspects of how to apply them" but did not provide further guidance because it didn't have to do so to resolve the case. 296 Kan. at 842, 845. Kansas Supreme Court cases on stand-your-ground immunity since Ultreras also haven't clarified the procedures district courts should use. Jones, 298 Kan. at (holding that the defendant must assert immunity before trial or before entering a guilty or no-contest plea and cannot raise immunity for the first time on appeal); Barlow, 303 Kan. at (holding that the district court may grant immunity on its own accord after the jury has found the defendant guilty but before sentencing). 15

16 Our court has attempted to fill in the procedural gaps in two cases: State v. Hardy, 51 Kan. App. 2d 296, , 347 P.3d 222 (2015), rev. granted 304 Kan (2016); and State v. Evans, 51 Kan. App. 2d 1043, 1050, 360 P.3d 1086 (2015), petition for rev. filed November 23, In Hardy, a panel of our court concluded that by adopting the probable-cause standard and placing the burden to satisfy that standard on the State, "the Ultreras decision effectively adopts the requirements imposed at a preliminary examination or hearing." 51 Kan. App. 2d at 299. The court essentially reasoned that because preliminary hearings require the State to establish probable cause and invoking immunity from prosecution also requires the State to establish probable cause, the Ultreras court must have intended for all the procedural rules of preliminary hearings to apply to immunity hearings. 51 Kan. App. 2d at 300. Therefore, when a district court evaluates an immunity claim, it must hold an evidentiary hearing (at which the rules of evidence apply) and should not resolve conflicts in the evidence but rather should construe the evidence in the light most favorable to the State, just as it would do in a preliminary hearing. 51 Kan. App. 2d at ; see also Washington, 293 Kan. at 734; State v. Bell, 268 Kan. 764, , 1 P.3d 325 (2000). The Hardy court reasoned that applying the preliminaryhearing requirements would be "consistent with the strong preference for jurors making fact determinations in criminal cases" because cases that have conflicting evidence regarding whether the person was justified in using force would survive the district court's probable-cause determination (as the district court would view the evidence in the light most favorable to the State) and would proceed to trial. 51 Kan. App. 2d at The Hardy court also considered the argument made by the defendant here that the procedural rules for other pretrial motions, such as motions to suppress evidence, should be applied in immunity hearings. 51 Kan. App. 2d at 301. In motion-to-suppress hearings, the State has the burden to prove that a search and seizure was lawful by a preponderance of the evidence, which is evidence that shows a fact is more probably true 16

17 than not true. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016); Barlow, 303 Kan. at 810 (citing In re B.D.-Y, 286 Kan. 686, 691, 187 P.3d 594 [2008]). The district court reviews the evidence, making factual findings and credibility determinations. On appellate review, the appellate court does not reweigh the evidence and reviews the district court's factual findings only to ensure they are supported by substantial evidence; we then review its legal conclusions independently, with no required deference to the district court. State v. Estrada-Vital, 302 Kan. 549, 555, 356 P.3d 1058 (2015); State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). The Hardy court found those requirements would be inappropriate for immunity hearings because "[those motions] deal with issues only indirectly bearing on guilt or innocence, and jurors will not be called upon to decide those issues at trial." Hardy, 51 Kan. App. 2d at 301. In Evans, another panel of our court adopted the Hardy court's holding and rationale that preliminary-hearing requirements were appropriate for evaluating immunity claims. 51 Kan. App. 2d at The Evans court additionally reasoned that a motion for immunity is a dispositive motion, which means that if the motion is granted, the case is dismissed. In evaluating other dispositive motions, such as motions for summary judgment in civil cases, the district court must weigh the evidence in the light most favorable to the nonmoving party. 51 Kan. App. 2d at The court concluded that in immunity hearings, as in preliminary hearings, the district court must consider the defendant's defense and assess the credibility of the State's and defendant's witnesses but should resolve any conflicting witness testimony in favor of the State because that conflict is a question of fact for the jury to determine. 51 Kan. App. 2d at 1053 (citing State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 [1996]). The court concluded that the district court wrongly granted the defendant's motion for immunity because it had failed to view the conflicting evidence in the light most favorable to the State. 51 Kan. App. 2d at

18 We recognize that not all of the members of our court who have considered the matter have agreed that the procedural rules for preliminary hearings are appropriate for evaluating immunity claims. In Evans, Judge Arnold-Burger dissented, essentially adopting the position Wiseman takes, arguing that the procedural rules for immunity claims should be based on the procedural rules used in hearings on motions to suppress evidence. 51 Kan. App. 2d at Her dissent rejected the conclusion of the Evans majority and the Hardy court that allowing the district court to weigh the credibility of the witnesses would violate the traditional role of the jury, contending that the point of the immunity statute is to avoid the burden of a trial altogether if possible. 51 Kan. App. 2d at She argued that if a case is wrongly permitted to go to trial, the defendant essentially loses his or her statutory right to immunity. 51 Kan. App. 2d at According to the dissent, to protect the defendant's right to immunity, the district court must be able to consider and weigh the evidence as a whole, without giving deference to the prosecution, which is more in line with the requirements in motion-to-suppress hearings. 51 Kan. App. 2d at We also recognize that the Kansas Supreme Court has granted review in Hardy, which means the opinion has no precedential force or effect. See Supreme Court Rule 8.03(j) (2015 Kan. Ct. R. Annot. 78). In addition, a petition for review is pending in Evans, and we are not bound to follow past rulings of another panel, anyway. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). In his argument in this case, Wiseman notes our Supreme Court's statement that the probable-cause standard in the immunity statute adds an additional requirement. From this, Wiseman asserts that the "[S]tate must meet something more than the ordinary probable cause test that a crime has been committed and that the defendant committed the crime." He argues that an immunity hearing "cannot be interpreted as a mini-preliminary hearing, it must be different or it does not provide any real immunity from prosecution and would be rendered meaningless." Wiseman contends that the district court must be 18

19 able to assess the credibility of witnesses and weigh conflicting evidence in immunity cases to determine whether the State has satisfied its probable-cause burden, citing cases addressing motions to suppress evidence. Thus, Wiseman asserts that because the district court's factual findings were supported by substantial evidence and its legal conclusions were correct, this court should affirm the district court's judgment. But the most central feature of the Ultreras ruling was that the State had to meet a probable-cause standard. We agree with Hardy and Evans that this strongly suggests that we apply the same standards applicable in preliminary hearings to immunity hearings under K.S.A Supp As Hardy noted, in both preliminary hearings and determinations of immunity, the State has the burden to establish probable cause. Hardy, 51 Kan. App. 2d at And because the court should determine early in the proceedings whether immunity applies, it is logical and reasonable to combine the preliminary and immunity hearings. 51 Kan. App. 2d at 302; see also Barlow, 303 Kan. at 818 (noting the State must be afforded an evidentiary hearing to meet its burden and combining preliminary hearing and immunity hearing, as Hardy suggested, would be sensible). But in suppression hearings, the State has the burden to show that the search and seizure was justified by a preponderance of the evidence. Patterson, 304 Kan. at 274. And as Hardy and Evans discuss, immunity is bound up with questions of guilt and innocence. Ultimately, we would expect that the jury would make determinations of guilt and innocence and resolve immunity questions based on its understanding of disputed facts. Adopting the preliminary-hearing standards for immunity hearings ensures that the jury makes the final decision in cases with conflicting information about whether the defendant was justified in using force. Hardy, 51 Kan. App. 2d at ; Evans, 51 Kan. App. 2d at We next must consider whether the district court viewed the evidence in the light most favorable to the State. The State argues that the district court disregarded evidence favorable to the State that would suggest Wiseman's use of deadly force was not justified 19

20 because he did not have a sincere or reasonable belief that deadly force was necessary to prevent imminent death or great bodily harm. In particular, the State asserts that the district court failed to address the evidence and testimony that Pascascio never entered the vehicle, that one witness saw Pascascio backing away from the vehicle, that Pascascio didn't have a weapon, that one witness reported seeing Pascascio lift his shirt up to show that he didn't have a weapon, that Wiseman counted down twice before rolling down his window and shooting Pascascio, and that Wiseman specifically stated, "I really don't want to shoot this dude, but I know he's not going to leave." After reviewing the evidence, we conclude that if the evidence is viewed in the light most favorable to the State, a person of ordinary prudence and caution could reasonably believe that Wiseman was not justified in using deadly force because he did not honestly and sincerely believe that deadly force was necessary and because a reasonable person wouldn't either. As the State argues, the time Wiseman took to give two countdowns for Pascascio to get away from the vehicle and manually roll down the window to shoot at Pascascio suggest that Wiseman was not actually in fear of imminent death or great bodily harm. A reasonable person could conclude that someone in genuine fear of imminent death or substantial harm would not be as deliberate as to count down twice before shooting or as concerned about property damage as to manually roll down the window rather than shooting through it. Wiseman's statement that he didn't want to shoot Pascascio but knew that Pascascio would not leave, along with eyewitness testimony that Pascascio had raised up his shirt and told Wiseman that he had no weapons and was backing away from the car when he was shot, also support the idea that Wiseman didn't fear imminent harm. Even Wiseman acknowledges that Pascascio had been standing 3 to 4 feet away from the vehicle and had raised up his shirt when Wiseman fired his gun (though one witness thought Pascascio had raised up his shirt in the middle of the confrontation). The State also presented evidence that the car doors had been locked at all times and the windows rolled up until Wiseman fired the gun; even if Pascascio did attempt to open the doors, he never actually entered the car. So Pascascio 20

21 had remained outside the car, and there was evidence that he had shown he had no weapon. Because a reasonable person could conclude that Wiseman wasn't justified in using deadly force, the district court erred when it granted Wiseman immunity and dismissed the charge against him. II. The District Court Wrongly Concluded That the State Had Failed to Establish Probable Cause to Support a Charge of First-Degree Murder. Since we have decided that the district court could not dismiss the murder charge based on immunity, we must move on to a second issue: Was the district court correct in concluding that the State had failed to present sufficient evidence of premeditation to support charging Wiseman with first-degree murder? An appellate court reviews a district court's order dismissing a charge for lack of probable cause independently, with no required deference to the district court's judgment. State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011) (citing State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 [2000]). We must apply the same rules the magistrate or district judge would apply at the preliminary hearing. 292 Kan. at 171. To proceed to trial, the State had to establish probable cause that Wiseman had committed first-degree murder that is, that he (1) intentionally killed Pascascio and (2) did so with premeditation. See K.S.A Supp (a)(1). The district court held that the State had not established that Wiseman acted with premeditation and that, therefore, the State could not charge him with first-degree murder. Premeditation means the defendant "thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation." State v. Kettler, 299 Kan. 448, 466, 325 P.3d 1075 (2014). In other words, the person must have formed the design 21

22 or intent to kill before the act. Jones, 298 Kan. at 336. Premeditation does not require a specific time period, but it requires more than the instantaneous, intentional act of taking someone's life. State v. Brownlee, 302 Kan. 491, 515, 354 P.3d 525 (2015). Additionally, the State does not need to provide direct evidence of premeditation, which may be inferred from the circumstances of the case, if those inferences are reasonable. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). Our Supreme Court has listed several circumstances that can support inferring premeditation: "'"'(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. [Citations omitted.]'"'" State v. Walker, 304 Kan. 441, 446, 372 P.3d 1147 (2016). There is no requirement that a certain number of factors be present to show premeditation; in some cases, one factor alone may be sufficient. But the use of a deadly weapon by itself is not sufficient to establish premeditation. State v. Phillips, 299 Kan. 479, 498, 325 P.3d 1095 (2014). The State argues that premeditation can be inferred from Wiseman's actions. In particular, the State notes Wiseman's use of a deadly weapon (the gun) and the time it took him to remove his gun from the glove box and holster, cock it, and manually roll down the window before shooting. The State also points to Wiseman's threats that he would shoot if Pascascio didn't leave them alone as a factor suggesting premeditation. In addition, of course, Wiseman gave Pascascio two countdowns. The State theorizes that Wiseman had the opportunity to think the matter over while counting down or while rolling down the window before shooting. In fact, Wiseman testified that he knew he would have to shoot Pascascio after Pascascio had called his bluff on the first countdown and that he had thought about shooting him before doing so. On the other hand, Pascascio initiated the confrontation and provoked Wiseman when he wouldn't leave. And there's 22

23 no evidence that Wiseman continued firing his gun after Pascascio was rendered helpless. Wiseman was also cooperative with police after the killing and did not deny shooting Pascascio. At the preliminary hearing, the State only had to show that a person of ordinary caution and prudence could reasonably believe that Wiseman committed premeditated first-degree murder. Just as the district court is required to do at a preliminary hearing, we must view the evidence and resolve any conflicts in the light most favorable to the State. See Fredrick, 292 Kan. at 171; Bell, 268 Kan. at , The evidence showed that Wiseman not only had the opportunity to think about shooting Pascascio before doing so, but he actually did think about it. He also warned Pascascio that he was going to shoot him. One can reasonably infer that Wiseman formed the intent to kill before shooting. The State established probable cause to believe that Wiseman acted with premeditation. The district court erred in finding that the State had failed to establish probable cause to believe that Wiseman committed premeditated first-degree murder. We of course express no opinion about how this case should ultimately be resolved. It will be up to a jury to consider the facts and render a verdict. But the district court erred by finding that Wiseman had immunity from prosecution and by failing to bind Wiseman over for trial on the charge of premeditated first-degree murder. We reverse the district court's judgment and remand for further proceedings consistent with this opinion. 23