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F 7.32 n1 Appellate Issue Alert: Pre-1997 Version: Directed Verdict.
The pre-1997 version of CJ 7.32 removed the peace officer determination from the jury. (See PG VII(C)(1) [Error to direct verdict on factual issue].) (See CALJIC History CJ 7.32.)
Escape Following Remand Or Arrest: “Should Know”
Standard Requires Consideration Of A Reasonable Person In Defendant’s Position
*Add to CJ 7.32:
In determining whether the defendant should have known that ___________ [insert appropriate knowledge element, e.g. that he/she had been arrested (CJ 7.32), that the other person was a peace officer (CJ 9.20); etc.], you must determine whether a reasonable person in the defendant’s position would have known this fact. [This means that you must consider the defendant’s __________ [insert specific impairment, if any, presented by the evidence, e.g. physical or mental disability, intoxication, etc.), as well as any characteristics of the defendant which could have impaired [his] [her] awareness that __________ [insert fact which should have been known].]
If you have a reasonable doubt whether a reasonable person in the defendant’s position should have known that __________ [insert knowledge element], you must give the defendant the benefit of that doubt and not find that [he] [she] should have known.
Points and Authorities
When a statute imposes criminal liability based upon constructive knowledge of a fact — i.e., the defendant “should have known” the fact — an objective “reasonable person” standard applies. (See People v. Mathews (94) 25 CA4th 89, 99 [30 CR2d 330]; see also People v. Ochoa (93) 6 C4th 1199, 1204 [26 CR2d 23] [whether a reasonable person “would have been aware” of the risk involved is an objective standard].) This standard requires consideration of “a reasonable person in defendant’s position ….” (Ochoa, 6 C4th at 1205, emphasis in original.) Thus, any evidence which would impair the defendant’s ability to know the fact in issue such as intoxication (Ochoa) or physical disability (Mathews), etc., must be considered by the jury in determining whether a reasonable person in the defendant’s position would have or should have known the fact in issue. (See also FORECITE F 5.12 n4 [objective standard for self-defense requires consideration of defendant’s prior experiences].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII.]
Constructive Knowledge: [See FORECITE F 1.20a, NOTES]
Willful Blindness Or Deliberate Ignorance (Federal/Model Penal Code Rule): [See FORECITE F 1.20a, NOTES]
Negation Of Knowledge By Intoxication Or Mental Impairment: [See FORECITE F 1.20b]
Impaired Physical Faculties – Amount Of Caution: [See CJ 3.37]