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Filed 11/21/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JASMINE MAREZA ZARAZUA,

Defendant and Appellant.

 A163474

 (Solano County

 Super. Ct. No. FCR344711) 

At trial for recklessly evading a peace officer and other offenses, the 

prosecutor repeatedly misgendered Jasmine Mareza Zarazua — who 

identifies as male — in the presence of the jury.1 Defense counsel moved for 

a mistrial and for a curative admonition on the grounds of prosecutorial 

misconduct, but the trial court denied the motion and declined to admonish 

the jury. On appeal, Zarazua contends the failure to use masculine pronouns 

constituted prosecutorial misconduct which, in the absence of a curative 

admonition, was prejudicial.

Parties are to be treated with respect, courtesy, and dignity —

including the use of preferred pronouns. Failure to do so offends the 

administration of justice. Nevertheless, given the record here, we conclude 

any misconduct was not prejudicial and therefore affirm.

1 Misgendering is “the assignment of a gender with which a party does 

not identify, through the misuse of gendered pronouns, titles, names, and 

honorifics.” (McNamarah, Misgendering (2021) 109 Cal. L.Rev. 2227, 2232.) 

We refer to Zarazua using masculine pronouns.
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BACKGROUND

In April 2019, a Rio Vista police officer saw Zarazua driving a SUV 

with no rear license plate. The officer tried to conduct a traffic stop, but 

Zarazua failed to yield. Instead — and while driving with a suspended 

license — he led law enforcement officers on a 15-minute pursuit during 

which he committed numerous traffic violations. While evading officers,

Zarazua drove into a gated retirement community where he nearly collided 

with a truck, spun out of control, and crashed into the bushes. Then he got 

out of the SUV and ran from pursuing officers. Eventually, officers arrested 

him.

At the time of the offenses — and at the commencement of the 

prosecution — Zarazua identified as female. Trial began in July 2021. 

During jury selection, defense counsel advised prospective jurors that 

prosecution witnesses would “refer to Mr. Zarazua as she. And Mr. 

Zarazua . . . no longer identifies as she. Mr. Zarazua identifies [as male] and 

prefers the pronoun he.” Counsel asked the jurors to raise their hands if 

they had “thought of that already.” Fourteen did so. Then counsel said the

trial court would instruct them not to let bias of any kind — including gender 

bias — affect their decision and asked several jurors whether they would 

have a “problem” if Zarazua “identifies as he when the officers identified him 

as she.” Each juror answered “no.”

After reminding prospective jurors they could not “punish” Zarazua

for his gender identity, the prosecutor asked whether they would give him

a “benefit” because of the gender transition. The jurors indicated they would 

not. As jury selection continued, counsel for both parties queried the jurors 

on gender identity. Each juror disclaimed feelings of sympathy toward, or 

bias against, Zarazua based on his gender transition.
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At the outset of his brief opening statement — which comprised three 

pages of the reporter’s transcript — the prosecutor referred to Zarazua using 

masculine pronouns. Thereafter, the prosecutor misgendered Zarazua 

several times, prompting defense counsel to object “to the identification of my 

client as she. We’ve been identifying him as he this entire time. Mr. Zarazua 

does respectfully request to be referred to as he.” The trial court instructed 

the prosecutor to “proceed with that in mind,” and the prosecutor remarked,

“That is in mind. It’s not intentional.” The prosecutor resumed his opening

statement, during which he misgendered Zarazua eight additional times. 

Defense counsel did not object.

Outside the jury’s presence, defense counsel moved for a mistrial on the 

grounds of prosecutorial misconduct. According to defense counsel, the

prosecutor’s failure to use masculine pronouns — irrespective of intent —

belittled and denigrated him and inflamed the jury’s passions, fears, and 

prejudices. Counsel lodged an objection “to every instance where Mr. 

Zarazua was misgendered” and requested the trial court issue “a curative 

admonishment . . . that it is improper to denigrate a defendant.” In 

opposition, the prosecutor argued the misgendering was accidental, said he

was “trying to be mindful” of Zarazua’s gender, and noted the defendant

“went as Ms. Zarazua” at the time of the incident. The prosecutor apologized 

to Zarazua, but strenuously denied engaging in misconduct, insisting he did 

not “denigrate the defendant in terms of inflaming the passions of the jury.” 

As the prosecutor explained, “[w]e know the passions of the jury aren’t 

inflamed because we talked to all of these jurors about these issues, and they 

all said they wouldn’t let the defendant’s gender identity” affect them.

The trial court denied the mistrial motion. It found the misgendering 

unintentional and concluded it did not constitute prosecutorial misconduct or 
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inflame “the jury to the extent that a mistrial [was] required.” The court

denied the request for a curative admonition without prejudice and suggested 

defense counsel renew the request when the parties discussed jury 

instructions. Defense counsel did not renew the request, but the court gave

CALCRIM No. 200, which directed jurors not to let sympathy, prejudice, or 

bias — including bias based on Zarazua’s gender identity — affect their 

decision.

During initial closing argument, the prosecutor misgendered Zarazua 

four times. Defense counsel objected based on prosecutorial misconduct; the

trial court told the prosecutor, “[w]atch . . . your pronouns,” and the 

prosecutor apologized. The prosecutor used incorrect pronouns twice during 

rebuttal closing; both times, defense counsel objected and the court reminded 

the prosecutor to use the correct pronouns. The prosecutor apologized and, 

on one occasion, offered to slow down so “that doesn’t happen again.”

After deliberating for fewer than two and a half hours, the jury 

convicted Zarazua of all charges: reckless evading a peace officer, resisting 

a police officer, hit and run driving resulting in property damage, and driving 

with a suspended license. The trial court suspended imposition of sentence,

placed Zarazua on probation, and ordered him to serve jail time.

DISCUSSION

Zarazua contends his convictions must be reversed because the 

misgendering constituted prosecutorial misconduct which, in the absence of 

a curative admonition, was prejudicial.

We begin by reciting the well-established standards governing 

prosecutorial misconduct claims. A prosecutor’s conduct “ ‘violates the 

federal Constitution when it comprises a pattern of conduct “so egregious 

that it infects the trial with such unfairness as to make the conviction 
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a denial of due process.” [Citation.] But conduct by a prosecutor that does 

not render a criminal trial fundamentally unfair is prosecutorial misconduct 

under state law only if it involves “ ‘the use of deceptive or reprehensible 

methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. 

Rhoades (2019) 8 Cal.5th 393, 418.) Under state law, “bad faith on the 

prosecutor’s part is not required.” (People v. Centeno (2014) 60 Cal.4th 659, 

666.)

To prevail on a claim of prosecutorial misconduct premised on the 

prosecutor’s remarks to the jury, the defendant must show that, in the

context of the argument as a whole and the instructions given to the jury, 

“there was ‘a reasonable likelihood the jury understood or applied the 

complained-of comments in an improper or erroneous manner. [Citations.] 

In conducting this inquiry, we “do not lightly infer” that the jury drew the 

most damaging rather than the least damaging meaning from the 

prosecutor’s statements.’ ” (People v. Centeno, supra, 60 Cal.4th at p. 667.)

Prosecutorial misconduct may result in reversal under federal law if the error 

“was not ‘harmless beyond a reasonable doubt,’ ” and it may result in reversal 

“under state law if there was a ‘reasonable likelihood of a more favorable 

verdict in the absence of the challenged conduct.’ ” (People v. Rivera (2019) 

7 Cal.5th 306, 333–334.)

Presuming the prosecutor’s repeated misgendering of Zarazua

constituted misconduct, it was nevertheless harmless. (People v. Wright

(2021) 12 Cal.5th 419, 444.)2 During jury selection, defense counsel notified 

2 Though we needn’t decide whether misconduct occurred, we note that 

because of the unique function prosecutors perform in representing the 

interests of — and exercising the power of — the state, they “ ‘are held to an 

elevated standard of conduct’ ” (People v. Peoples (2016) 62 Cal.4th 718, 792) 

and should use a defendant’s preferred pronouns “out of respect for the 
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prospective jurors that prosecution witnesses might misgender Zarazua, and

counsel for both parties acknowledged his gender identity and exhorted 

jurors not to “punish” him for the gender transition, or to let gender bias 

influence their decision. The jurors confirmed they could remain impartial. 

When the prosecutor misgendered Zarazua during opening and closing 

arguments, the prosecutor apologized and acknowledged the mistake. And 

the trial court reminded the prosecutor to use correct pronouns and 

subsequently instructed the jurors not to let bias of any kind — including 

gender identity bias — affect their decision (CALCRIM No. 200). We 

presume the jury followed the court’s instructions. (People v. Thompson

(2022) 83 Cal.App.5th 69, 92.) Additionally, the evidence of guilt was

overwhelming and largely uncontested.

Given the voir dire on gender identity, the directive in CALCRIM 

No. 200, and the overwhelming evidence of guilt, we conclude the prosecutor’s 

failure to use masculine pronouns was “harmless under any standard of 

prejudice.” (People v. Smith (2015) 61 Cal.4th 18, 51–52.) There is no 

indication the jury interpreted the prosecutor’s failure to use Zarazua’s 

correct pronouns “in the most damaging light” (People v. Ramirez (2022) 

litigant’s dignity.” (United States v. Varner (5th Cir. 2020) 948 F.3d 250, 260 

[dis. opn. of Dennis, J.]; CACI No. 118 [“attorneys and courts should take 

affirmative steps to ensure that they are using correct personal pronouns” to 

comply with state policy according “intersex, transgender, and nonbinary 

people . . . full legal recognition and equal treatment under the law” and to 

ensure their “dignity and privacy.”].) Not doing so undermines the 

administration of justice, can inject prejudice into proceedings, and can 

suggest a defendant is not credible. (McNamarah, Misgendering as 

Misconduct (2020) 68 UCLA L.Rev. Disc. 40, 63.) Additionally, to ensure

a litigant is treated with dignity, a trial court can admonish counsel to use 

the litigant’s preferred pronouns. (See Cassim v. Allstate Ins. Co. (2004) 

33 Cal.4th 780, 795 [one purpose of admonitions “ ‘is to avoid repetition of the 

remarks and thus obviate the necessity of a new trial’ ”].)
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13 Cal.5th 997, 1130) or that the misgendering influenced the verdict. 

(Chapman v. California (1967) 386 U.S. 18, 24.) Finally, there is no realistic

possibility Zarazua would have obtained a more favorable result but for the 

misgendering. (See People v. Arredondo (2018) 21 Cal.App.5th 493, 502–505

[prosecutor’s “relentless” use of epithets to describe defendants was harmless 

as to murder convictions and certain enhancements].)

Zarazua does not persuasively argue otherwise. Instead, he insists

prejudice should be presumed because the trial court did not issue a curative 

admonition. This claim is forfeited. “As a general matter, when a trial court 

denies a motion without prejudice the matter is forfeited if not renewed.” 

(People v. Mills (2010) 48 Cal.4th 158, 170.) Here, the court denied defense 

counsel’s request for an admonition without prejudice and suggested counsel 

renew the request when it was time to instruct the jury. By failing to do so, 

counsel forfeited the argument on appeal. (Id. at p. 170.) We acknowledge 

a curative admonition may be most effective at the moment the objectionable 

conduct occurs, but when the court denies a request for an admonition 

without prejudice, counsel must renew the request and press for a final 

ruling. (See People v. Johnson (2018) 6 Cal.5th 541, 586; People v. Brewer 

(2000) 81 Cal.App.4th 442, 459.) The argument also fails on the merits. We 

decline Zarazua’s invitation to “presume reversible prejudice” in the absence 

of a curative admonition or to analogize the misgendering to the use of 

“unjustified removal of jurors based on race” in violation of Batson v. 

Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. 

For the reasons discussed above, the court’s refusal to admonish the jury was 

not — on this record — prejudicial.
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Zarazua’s other arguments do not convince us reversal is required. 

For example, he asserts the trial court, in denying his mistrial motion,

erroneously focused on whether the misgendering was intentional rather 

than on whether it was prejudicial. We disagree. In denying the motion, the 

court found the misgendering did not constitute prosecutorial misconduct or 

inflame “the jury to the extent that a mistrial [was] required.” Thus, the 

court impliedly determined the prosecutor’s failure to use masculine

pronouns was not incurably prejudicial. This conclusion was not an abuse of 

discretion. (People v. Phillips (2022) 75 Cal.App.5th 643, 691; People v. 

Schultz (2020) 10 Cal.5th 623, 673.)

In closing, we emphasize that we do not condone the prosecutor’s 

repeated misgendering of Zarazua. Moreover, we note trial courts have an 

obligation to ensure litigants and attorneys are treated with respect, 

courtesy, and dignity — including the use of preferred pronouns. When court 

proceedings fall short of that, judges should take affirmative steps to address 

the issue. Nevertheless, on this record, we conclude the prosecutor’s failure 

to use masculine pronouns was not prejudicial. We acknowledge there may 

be instances when misgendering is so overt, malicious, and calculating that it 

“ ‘ “infects the trial with such unfairness as to make the conviction a denial of 

due process.” ’ ” (People v. Rhoades, supra, 8 Cal.5th at p. 418.) But this is 

not such a case.

DISPOSITION

The judgment is affirmed.
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_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Petrou, J.

A163474
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Superior Court of Solano County, Jeffrey C. Kauffman, Judge.

David A. Kaiser, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. 

Provenzano and Clarissa Limón, Deputy Attorneys General, for Plaintiff and 

Respondent.