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F 12.87a
Distinctively Marked:
Objective Reasonableness Of Person In Defendant’s Position
*Add to CJ 12.87:
In determining whether the defendant recognized the vehicle as a peace officer’s vehicle, you must determine whether a reasonable person in the defendant’s position would have recognized the vehicle as such. This means that you must consider all the circumstances such as [insert specific applicable factors e.g., defendant’s physical disabilities, or intoxication] [his] [her] failure to recognize the vehicle as a peace officer’s vehicle was reasonable.
If you have a reasonable doubt whether a reasonable person in the defendant’s position would have recognized the vehicle as a peace officer’s vehicle, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
In the July 1997 pocket part, CJ 12.87 was adopted to define “distinctively marked” in light of People v. Estrella (95) 31 CA4th 716, 721-23 [37 CR2d 383]. However, because the CALJIC definition is objective (i.e., utilizes the reasonable person standard), the jury should be instructed that this determination must be based on consideration of a reasonable person in the defendant’s position. (See Points and Authorities FORECITE F 4.35b.)