State v. Valenciana: Bernhardt Timing Clarifications Require a Full Stanley Premeditation Instruction (and Reckless Criminal Threat Must Be Excluded from Criminal History)

Court: Supreme Court of Kansas
Date: May 22, 2026
Case: State v. Valenciana, No. 126,839

1. Introduction

State v. Valenciana arises from the Thanksgiving-night killing of Brent Boone. Saul Valenciana conceded he killed Boone, but contested premeditation and sought a lesser-offense pathway through a heat-of-passion voluntary manslaughter instruction. The appeal also challenged aspects of closing argument, denial of a mistrial motion, cumulative error, and—critically—the use of a prior criminal threat conviction in calculating criminal history at sentencing.

The case presented the Kansas Supreme Court with recurring trial-management questions: (1) how juries must be instructed when a court supplements the PIK definition of premeditation with timing language; (2) when a heat-of-passion voluntary manslaughter instruction is factually warranted; (3) the boundary between permissible advocacy and prosecutorial error in closing; (4) what qualifies as mistrial-worthy prejudice; and (5) how unconstitutional reckless criminal threat convictions must be treated under K.S.A. 21-6810(d)(9).

2. Summary of the Opinion

The court affirmed Valenciana’s convictions for premeditated first-degree murder, burglary, and theft, while vacating the sentence and remanding for resentencing due to an erroneous criminal history score.

  • Premeditation instruction: The district court erred by giving a “mixed” premeditation instruction that used PIK Crim. 4th 54.150 plus portions of State v. Bernhardt and only part of State v. Stanley. The error was harmless in light of the evidence.
  • Voluntary manslaughter instruction: No error in refusing a heat-of-passion instruction; the alleged provocation (Boone’s denials) was legally insufficient under an objective standard.
  • Closing argument: No prosecutorial error; the State’s argument tracked the instructions and permissible circumstantial factors supporting an inference of premeditation.
  • Mistrial: No abuse of discretion; the record did not support a claim that the State violated a court order barring the “heat of passion” terminology, and no injustice made trial continuation impossible.
  • Cumulative error: Inapplicable because only one harmless error was identified.
  • Sentencing: Under State v. Smith and K.S.A. 21-6810(d)(9), reckless criminal threat convictions must be excluded from criminal history; resentencing required.

3. Analysis

3.1. Precedents Cited

(a) Premeditation instructions: PIK, Bernhardt, Stanley, and Romey

  • State v. Barnes — The court reaffirmed that the elements of premeditated murder and the definition of premeditation in PIK Crim. 4th 54.150 “have been repeatedly approved” as accurate and not misleading. This anchored the court’s view that departures from PIK must be handled carefully.
  • State v. Bernhardt — Provided language clarifying the temporal aspect of premeditation (e.g., that it can form during a struggle and need only precede the “final act” of killing). The decision recognizes a practical problem in homicide cases involving extended violence: jurors may wrongly assume premeditation must exist before any confrontation begins.
  • State v. Stanley — Supplied the counterbalancing clarification: premeditation is not mere intent; it must involve reflection sufficient to be “more than impulse” and to permit a change of course. In Valenciana, the district court included some “reflection” phrasing but omitted the “more than impulse / time to abandon the intent” component.
  • State v. Romey — The controlling bridge between Bernhardt and Stanley. The Valenciana court quoted Romey’s rule: “[A] Stanley instruction is required when the district court provides a Bernhardt instruction.” Valencia extends this in practical application: giving partial Stanley language is inadequate; once a whole or partial Bernhardt supplement is given, “all of a Stanley instruction must also be given” to avoid juror confusion between intent and premeditation.

(b) Voluntary manslaughter / heat of passion: Wade, Gallegos, Romey, Thille, Uk, Gentry

  • State v. Wade — Defined “heat of passion” as intense emotional excitement prompting impulsive action without reflection, and cautioned that a “slow burn is not heat of passion.” This was central to rejecting Valenciana’s theory because evidence suggested simmering anger and preparation (bringing the weapon).
  • State v. Gallegos — Framed the “core elements” as intentional killing plus legally sufficient provocation, reiterated the objective test for sufficiency, and held “mere words” are not enough. Valenciana relied on Boone’s denials—treated as “mere words”—to seek the instruction; Gallegos foreclosed that argument.
  • State v. Romey — Reinforced the objective “reasonable person” threshold and emphasized substantial provocation.
  • State v. Thille — Provided a syllabus-level articulation of the objective standard (reasonable person loss of self-control), quoted by Romey and relied on here.
  • State v. Uk — Clarified the district court’s “gatekeeper” role: even taking defendant-favorable evidence as true, the court must decide whether the incident rises to the legal threshold of sufficient provocation.
  • State v. Gentry — Source (via Gallegos) for the rule that mere words or gestures, however offensive, do not constitute legally sufficient provocation.

(c) Prosecutorial error framework and closing-argument boundaries: Bobian, Dotson, J.L.J.

  • State v. Bobian — Supplied the two-step prosecutorial error test (wide latitude; then harmlessness—no reasonable possibility of contribution to the verdict), and reiterated that contemporaneous objections are not required though they may be considered.
  • State v. Dotson — Listed circumstantial factors relevant to inferring premeditation (weapon nature, lack of provocation, conduct before/after, threats/declarations, lethal blows after helplessness). Valenciana approved prosecutors’ reliance on these factors in arguing premeditation.
  • State v. J.L.J. — Confirmed it is not error for a prosecutor to argue how evidence supports the State’s theory when grounded in the record and law.

(d) Mistrial and cumulative error: Butler, Mendez

  • State v. Butler — Restated abuse-of-discretion review for mistrial rulings and the definition of abused judicial discretion.
  • State v. Mendez — Provided the principle that cumulative error analysis does not apply when only one harmless error is found.

(e) Sentencing and criminal history: Smith, Boettger, Counterman v. Colorado

  • State v. Smith — Held reckless criminal threat convictions cannot be included in criminal history scores because K.S.A. 21-6810(d)(9) requires exclusion, given the unconstitutional status of that statutory portion.
  • Boettger — The foundational Kansas decision finding the reckless portion of the criminal threat statute unconstitutional; Smith and Valenciana treat this as the predicate for K.S.A. 21-6810(d)(9)’s exclusion rule.
  • Counterman v. Colorado — Raised potential questions about mens rea requirements for “true threats,” but Smith (and thus Valencia) treated that federal development as irrelevant to the Kansas statutory-exclusion command under a “literal reading” of K.S.A. 21-6810(d)(9).

3.2. Legal Reasoning

(a) The “PIK + timing language” problem: why partial fixes create new confusion

The court treated PIK Crim. 4th 54.150 as the stable baseline. The trouble began when the district court attempted a compromise instruction that (i) added Bernhardt-style timing language (premeditation can arise during a struggle and must precede the “final act of killing”), but (ii) only partially imported Stanley’s explanation of premeditation’s reflective quality. The Supreme Court’s reasoning is functional: once jurors are told premeditation can form “in the middle” of violence and just before a “final act,” jurors may slide into equating premeditation with the mere continuation of intentional violence—i.e., intent plus time passing—unless they are also told explicitly that premeditation is more than impulse and requires reflection sufficient to permit abandoning the intent.

The decision’s doctrinal move is to treat the Bernhardt supplement as triggering a mandatory completeness requirement: if a court gives either a whole or partial Bernhardt instruction, “all of a Stanley instruction must also be given.” In other words, the cure for temporal confusion (Bernhardt) must be paired with the cure for cognitive confusion (Stanley), and partial inclusion of Stanley does not suffice.

(b) Harmlessness in instruction error: evidence of advance design and post-crime conduct

Even though the instruction was legally inappropriate, the court found harmlessness because evidence strongly supported premeditation: Valenciana proposed the visit, brought a knife unknown to Turner, positioned Boone in front of him, slit Boone’s throat, continued stabbing, and then engaged in concealment (body disposal, vehicle cleaning, burglary to remove security equipment). The court’s harmlessness finding reflects the idea that the jury had abundant circumstantial grounds to find “thought the matter over beforehand,” notwithstanding the imperfect instruction.

(c) Heat of passion as an objective legal threshold, not a subjective narrative

The court’s voluntary manslaughter analysis is a strict application of the “reasonable person” test. It accepted that voluntary manslaughter is a legally appropriate lesser offense of first-degree murder (per Gallegos), but emphasized that factual appropriateness requires legally sufficient provocation. The record showed “slow burn” anger, weapon carriage, and controlled steps leading to the killing, which undermined the hallmark of heat of passion: impulsive action without reflection. Most importantly, the only “provocation” identified was Boone’s denial—squarely falling into the “mere words” category that cannot meet the legal threshold.

(d) Closing argument: permissible use of circumstantial factors without “back-dating” premeditation

Valenciana’s complaint that the prosecutor “back-dated” premeditation by referencing post-killing actions failed because Kansas law permits premeditation to be inferred circumstantially, including from conduct before and after the killing (Dotson). The prosecutor’s argument largely tracked the instruction given and tied each asserted inference to record evidence (weapon choice, continued stabbing, failure to seek help, disposal and concealment). Context mattered under Bobian; the court concluded the prosecutor stayed within “wide latitude.”

(e) Mistrial: no record-supported order violation and no injustice

The mistrial claim turned on whether the court had prohibited the parties from saying “heat of passion” or merely from giving legal definitions. Reviewing the record, the Supreme Court read the district court as cautioning against defining the term (and anticipating objections), not forbidding its use. On that reading, the prosecutor did not violate a court order, and in any event the defense was able to present its theory in substance. Under Butler, the denial was not arbitrary, based on law error, or fact error.

(f) Sentencing: statutory exclusion of reckless criminal threat convictions

The resentencing portion is straightforward and consequential: under Smith’s interpretation of K.S.A. 21-6810(d)(9), a reckless criminal threat conviction must be excluded from criminal history because the reckless portion of the criminal threat statute was found unconstitutional in Boettger. The State’s request to revisit Smith was rejected; the court treated Smith as settled and controlling.

3.3. Impact

(a) Trial courts: a “pairing rule” for premeditation instructions

The most operational holding is instructional: if a Kansas trial court supplements PIK Crim. 4th 54.150 with Bernhardt-type timing language—even partially—it must also give a complete Stanley instruction. The decision discourages “mix-and-match” drafting that borrows snippets from appellate opinions without importing the accompanying safeguards those opinions demand.

(b) Litigants: clearer boundaries for heat-of-passion theories

Valenciana reinforces that “heat of passion” is not established by moral outrage or humiliating information alone; defendants must identify an objectively sufficient provocation, not merely offensive statements or denials. The “slow burn” concept from Wade remains a powerful analytic tool for courts assessing factual appropriateness of the instruction.

(c) Prosecutors: safe harbor in structuring premeditation arguments

By approving argument grounded in Dotson factors and tied to the evidentiary record, the decision provides a template for permissible closing: describe the governing instruction, list recognized circumstantial factors, and apply them to concrete testimony and exhibits—while avoiding misstating the legal definition itself.

(d) Sentencing practice: continued exclusion of reckless criminal threat

The resentencing remand underscores that Smith is not a one-off: district courts must treat reckless criminal threat convictions as excluded under K.S.A. 21-6810(d)(9). Practically, counsel should scrutinize criminal history worksheets for “criminal threat” entries and determine whether the underlying conviction was reckless and therefore non-countable.

4. Complex Concepts Simplified

  • Premeditation vs. intent: Intent means “I meant to kill.” Premeditation means “I decided to kill after thinking it over,” even briefly. The key is reflection, not the length of time.
  • Bernhardt instruction (timing): Clarifies that a person can form premeditation during an ongoing fight or struggle; it need not exist before the conflict starts. It focuses on when premeditation can form.
  • Stanley instruction (cognition): Clarifies that premeditation requires more than a split-second impulse; it requires reflection sufficient to allow the person to stop and abandon the plan. It focuses on what kind thinking premeditation is.
  • Heat of passion (voluntary manslaughter): An intentional killing may be reduced if provocation would cause a reasonable person to lose self-control and act from intense emotion rather than reason. “Mere words,” even insulting or hurtful ones, do not qualify.
  • Harmless error: Some trial errors do not require reversal if the appellate court is convinced the mistake likely did not affect the verdict.
  • Criminal history scoring and K.S.A. 21-6810(d)(9): Kansas sentencing grids rely on prior convictions. But the statute commands exclusion of certain convictions—here, reckless criminal threat—because that portion of the offense was found unconstitutional.

5. Conclusion

State v. Valenciana delivers two practical directives. First, Kansas courts must not pair Bernhardt-style timing clarifications with only a partial Stanley explanation: if Bernhardt language is used (even in part), a complete Stanley instruction must also be given to prevent jurors from collapsing premeditation into mere intent plus elapsed time. Second, the court reaffirmed that reckless criminal threat convictions are excluded from criminal history scoring under K.S.A. 21-6810(d)(9) as applied through Smith, requiring resentencing when such a conviction was counted.

The decision’s broader significance is its insistence on doctrinal “completeness” in jury instructions and statutory “literalism” in criminal history scoring—both aimed at reducing jury confusion at trial and ensuring uniformity and legality in sentencing.