85 Cal.App.5th 639
Cal. Ct. App.2022Background
- In April 2019 Zarazua (who currently identifies as male) led police on a 15‑minute pursuit, crashed, fled on foot, and was arrested; charged with reckless evading, resisting, hit‑and‑run property damage, and driving with a suspended license.
- At trial (July 2021) defense counsel informed jurors that prosecution witnesses might refer to Zarazua as “she,” explained Zarazua’s preferred pronouns, and questioned jurors about potential gender‑bias; jurors said they would remain impartial.
- During opening and closing arguments the prosecutor repeatedly used feminine pronouns for Zarazua despite being instructed to stop; defense moved for a mistrial and requested a curative admonition; the court denied the mistrial and denied the admonition without prejudice, later giving CALCRIM No. 200 (no bias or sympathy).
- Defense lodged objections at various times; the court admonished the prosecutor in the courtroom and the prosecutor apologized and corrected pronouns when prompted.
- The jury convicted on all counts after <2.5 hours deliberation; court suspended imposition, granted probation, and imposed jail time. On appeal Zarazua argued misgendering was prosecutorial misconduct requiring reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prosecutor’s repeated misgendering constituted prosecutorial misconduct requiring reversal | Even if misgendering occurred it was not prejudicial given voir dire and instructions | Misgendering was prosecutorial misconduct that denigrated defendant and inflamed jury; reversal required | Court assumed misconduct but held any error harmless; conviction affirmed |
| Whether the trial court’s refusal to give an immediate curative admonition requires presumed prejudice | Court: request denied without prejudice; defense failed to renew; CALCRIM 200 cured any effect | Failure to admonish at the moment should lead to presumed reversible prejudice | Forfeited by defense for not renewing; also no reversible prejudice on the record |
| Whether intent matters (accidental vs. deliberate misgendering) | Prosecutor maintained misuse was unintentional and apologized; intent not dispositive if no prejudice | Defense argued focus must be on prejudice, not intent | Court evaluated prejudice and found no incurable prejudice; discretion to deny mistrial not abused |
| Whether misgendering is comparable to Batson/Wheeler level structural error | State argued not analogous; structural error not implicated | Defense urged presumption of prejudice akin to race‑based juror removal | Court rejected the analogy and declined to presume reversible prejudice |
Key Cases Cited
- People v. Rhoades, 8 Cal.5th 393 (discussing due‑process level of prosecutorial misconduct)
- People v. Centeno, 60 Cal.4th 659 (prosecutorial misconduct standard under state law)
- People v. Rivera, 7 Cal.5th 306 (prejudice standards: federal harmless beyond a reasonable doubt; state reasonable likelihood of a more favorable verdict)
- People v. Wright, 12 Cal.5th 419 (harmlessness analysis for prosecutor misconduct)
- People v. Smith, 61 Cal.4th 18 (harmless error standard guidance)
- Chapman v. California, 386 U.S. 18 (harmless beyond a reasonable doubt standard under federal law)
- People v. Mills, 48 Cal.4th 158 (forfeiture where request denied without prejudice and not renewed)
- People v. Johnson, 6 Cal.5th 541 (need to press for a final ruling on admonition requests)