Prosecutorial Misconduct if Not Using Proper Pronouns?

During the trial of Jasmine Marez Zarazua, who identifies as male, the prosecutor repeatedly “misgendered” defendant as female in the presence of the jury. Jasmine was on trial for recklessly evading a police office in Solano County.

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.

A few of the background facts are good to know to understand this case better. In April 2019, a Rio Vista police officer saw Mr. Zarazua driving an SUV with no rear license plate. The officer tried to conduct a traffic stop, but Mr. Zarazua led officers on a 15-minute pursuit during which he committed numerous traffic violations. He drove into a gated retirement community where he nearly collided with a truck and crashed into some bushes. He then got out of the SUV and ran before officers arrested him.

At the time of the offenses, Zarazua identified as female. During trial, defense counsel advised jurors during voir dire that Zarazua would be referred to as “he.”

During trial, the prosecution did correctly refer to Zarazua as he for the most part, but during his opening statement mistakenly referred to Zarazua as female eight times.

Outside the presence of the jury, defense counsel moved for a mistrial as described at the outset of this article.

According to defense counsel, the prosecutor’s failure to use masculine pronouns – irrespective of intent – belittled and denigrated Mr. Zarazua and inflamed the jury’s passions, fears and prejudices.

In opposition, the prosecutor argued that the misgendering was accidental and he was “trying to be mindful” of Zarazua’s gender and noted that Zarazua “went as Ms. Zarazua” at the time of the incident. The prosecutor apologized to Zarazua, but strenuously denied engaging in misconduct. 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 judge denied the mistrial motion, stating it found the misgendering unintentional and concluded it did not constitute prosecutorial misconduct or inflame the jury to the extent that a mistrial was required and denied the request for a curative instruction without prejudice.

In closing argument, the prosecutor misgendered Zarazua four times and defense counsel objected on grounds of prosecutorial misconduct. The judge told the prosecutor, “[w]atch your pronouns” and the prosecutor apologized.

After deliberating for fewer than two and a half hours, the jury convicted Zarazua of all charges: recklessly evading a police officer, resisting a police officer, hit and run driving resulting in property damage, and driving with a suspended license. The judge suspended imposition of sentence, placed Zarazua on probation and ordered him to serve jail time.

Zarazua then appealed his convictions to the First Appellate District, arguing they must be reversed because the misgendering constituted prosecutorial misconduct, which in the absence of a curative admonition, was prejudicial.

The First Appellate District began its analysis by defining prosecutorial misconduct. It explained that 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 a denial of due process.’” 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.”

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.

The First Appellate District then affirmed the convictions, stating it did not condone the prosecutor’s repeated misgendering of Zarazua and noted that trial court judges have an obligation to ensure litigants are treated with respect, courtesy and dignity – including the use of preferred pronouns.

In closing, we mention that in one footnote to the opinion, the First Appellate District noted that 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 the admonitions “is to avoid repetition of the remarks and thus obviate the necessity of a new trial.”]; see also United States v. Varner (5th Cir. 2020) 948 F. 3d 250, 260 [“attorneys and courts should take affirmative steps to ensure that they are using correct personal pronouns” to comply with state policy according to “intersex, transgender and nonbinary people . . . full legal recognition and equal treatment under the law” and to ensure their “dignity and privacy”].

For more information about prosecutorial and judicial misconduct on privacy issues, please click on the following articles: