1 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. A16 3 474
( 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
identifie s 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 t he trial court denied the motion and declined to admoni sh 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

. P arties 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 Misgender ing 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.2 BACKGROUND In April 201 9 , a Rio Vista police officer saw Zarazua driving a SUV
wit h no rear license plat e

. The officer tried to conduct a traffic stop , but Zarazua failed to yield. I nstead

— 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 gate d 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 identifie s as sh e. Mr. Zarazua identifies [as male] and prefers the pronoun he.” C ounsel asked the jurors to raise their hands if they had “thought of that already.” Fourteen did so

. Then c ounsel said the
trial court would instruct the m not to l et 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 “ n o.”
After remin d ing prospective jurors t h ey could not “punish” Zarazua for his g ender 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 t ransition.3 At the outset of his brief opening statement

— which comprised three pages of the reporter’s transcript

— the prosecutor referred to Zarazua using
masculine p ronouns

. 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 c ounsel
, the prosecutor’s failure to use masculine pronouns

— irrespective of intent

— belittled and denigrated him and inflamed the jury’s passions , fears, and prejudices. C ounsel lodge d an objection “ to every instance where Mr.
Zarazua was misgendered ” and requested the trial court issue “ a curative
admoni shment

. . . that it is improper to denigrate a defendant .” In opposition, the prosecutor a rgued 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. Th e 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 pass ions 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 mo tio n

. It found the misgendering
unintentional and concluded it did not constitute prosecutorial misconduct or4 inflame “ the jury to the extent t hat a mistrial [was] required

. ” The court
de nied the request for a curative admonition without prejudice and suggested
defense counsel renew the request when the parties discussed jury
instruction s

. 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.
D uring initial closing argument, the prosecutor misgendered Zarazua
four times

. D efense counsel object ed based on prosecutorial misconduct ; the
trial court told the prosecutor
, “[ w ] atch

. . . your pronouns , ” and the prosecutor apologized. The prosecutor used incorrect pronoun s 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 , t he jury
convicted Zarazua of all charg es: reckless evading a peace officer , resisting a police officer, hit and run driving resulting in property damage, and driving
with a sus pended 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 conviction5 a denial of due process.” [Citation.] But conduct by a prosecutor that does
not render a cri minal 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.) U nder 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 da m aging 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 t here 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 .)
P resuming 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 occur r ed
, 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 defend a nt ’s preferred pronouns “out of respect for the6 prospective jurors that prosecution witnesses might mis gender Zarazu a , a nd
counsel for both parti es acknowledged hi s gender identity and exhorted jurors not to “punish” him for the gender transition, or to let gender bias
influence their decision. The jurors confirmed th ey could remain impartial

. When the prosecutor misgendered Zarazua during opening and closing
argument s , t he prosecutor apologized and acknowledged the mistake. A nd
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, t he 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 gui lt, we conclude the prosecutor’s
failure to use masculine pronouns w as “harmless under any standard of prejudice.” ( People v

. Smith (2015) 61 Cal.4th 18, 51

– 52.) T here 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 non bi nary 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 li tigant 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’ ” ].)7 13 Cal. 5th 997, 11 30 ) or that the misgendering influence d the verdic t. ( Chapman v. California ( 1967) 386 U.S. 18 , 24.) Finally , there is no realistic possibility Zarazua would have obtained a more favorable re sult but for the misgendering

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

– 505 [prosecutor’s “relentless” use of epithets t o 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 forf eited

. “A s 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 s uggested 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

. W e 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

.8 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, t he

court found th e misgendering did not constitute prosecutorial misconduct or inflame “the jury to the extent that a mistrial [w as] required.” Thus, the

court impliedly determined th e 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, w e 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 ste ps 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.9 _________________________ Rodríguez , J.

WE CONCUR:

_________________________ Fujisaki, Acting P. J.

_________________________ Petrou, J.

A16347410 Superior Court of So lano 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 Lim ón, Deputy Attorneys General, for Plaintiff and Respondent.