Thursday, February 5, 2026
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Comparing Defendant to Fictional Dog Cited in Voir Dire Is Not RJA Violation—C.A.
Opinion Rejects View That Analogy Is Per Se Violation Due to Legislative Findings Denouncing Use of Animal Imagery
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a defendant had not established that his rights under a California law aimed at eliminating racial bias in the criminal justice system were violated based on the trial attorneys having likened him to a fictional dog that had served as the centerpiece of an illustration of circumstantial evidence during voir dire, saying the comparison was not problematic because the animal was “not…threatening.”
At issue is the Racial Justice Act (“RJA”), codified at Penal Code §745, which prohibits the use of “racially discriminatory language” during trial that “an objective observer” would conclude “explicitly or implicitly appeals to racial bias.” The section includes examples of prohibited speech, including “racially coded language, language that compares the defendant to an animal, or language that references the defendant’s physical appearance.”
Justice Julia C. Kelety wrote the opinion, filed on Jan. 28 and certified for publication yesterday, recognizing that animal analogies are specifically called out in the statute as examples of discriminatory language but declaring:
“To the extent [the defendant] asserts any reference that explicitly or implicitly compares a defendant to any animal is a facial violation of the RJA, we are not persuaded. We acknowledge that there is no shortage of animal references that are racially charged or coded…And thus, it is no surprise that the Legislature included comparisons to animals as one example in defining…discriminatory language.”
However, she said:
“[W]e conclude neither the prosecutor nor defense counsel exhibited racial bias or animus or used racially discriminatory language by comparing the evidence against [the defendant] to the…extremely intelligent pet dog in the prosecutor’s explanation of circumstantial evidence. Nonetheless, we agree that counsel would be wise to use a different analogy in the future, such as to rain or to a sunrise, i.e., an analogy that does not utilize an animal.”
Criminal Conviction
The question arose after Daniel Gomez was convicted of taking or driving a vehicle in violation of Vehicle Code §10851, and related offenses, relating to a September 2023 incident in which he was found driving a car, containing two passengers, that was pulling a motorhome without a tow hitch and by way of an “ad hoc” rig.
During jury selection, the prosecutor with the Riverside County District Attorney’s Office introduced the concept of circumstantial evidence by saying:
“[L]et’s just imagine you’re the owner of John [the dog].
“And you leave your blue-colored slushy ice cream in the vehicle, and it was full. And you go out, you get your groceries, and then you come back. And…[t]he blue slushy is, like, pretty much all…drank….And you see also the dog having a similarly colored tongue…
“So I would ask you, if Mr. Dog is at trial here, would you think that the dog is guilty?”
During closing arguments, Gomez’s attorney returned to the dog analogy, commenting: “We’ve got three dogs here….And all of them got blue tongues….Maybe they all got in the slushy. Maybe there was some blue candy….Maybe one of them thought it was okay to drink the slushy….”
The prosecutor, in response, acknowledged that “[t]here are three dogs” in this case and pointed to “the alternative theory of aiding and abetting.” Gomez did not object to the analogy during the trial.
After the jury found him guilty, Riverside Superior Court Judge Anthony R. Villalobos sentenced Gomez to six years in prison in April 2024.
Forfeiture Applies
Agreeing with “several courts of appeal” that have held that a defendant who has failed to raise a Racial Justice Act claim at the trial court level will be deemed to have forfeited it, Kelety said that “even if we were to consider the merits of Gomez’s assertions, we would not find that Gomez has established a violation of the RJA.”
Opining that “[t]he story painted an endearing picture of…a pet that could hardly be blamed for drinking a cold slushy while alone in a car on a hot day,” she noted that “the prosecutor referred to ‘John the dog’ as extremely intelligent.” Based on these characterizations, she remarked:
“None of this language was derogatory and none of it suggested that John was a bad actor or had negative character traits. Moreover, it was readily apparent to the prospective jurors that the prosecutor was using the dog analogy solely to explain the concept of circumstantial evidence. ‘John the dog’ was seemingly culpable because of the empty cup and his blue tongue, not because he was a dog or because the jury was to conclude that dogs always steal slushies.”
Rejecting Gomez’s assertion that the prosecutor dehumanized him and his accomplices by calling them “three dogs,” she reasoned: “[A]n objective observer would understand that the comparison…was [one] about the state of the evidence. And, regardless, ‘John the dog’ was….someone’s pet whose only offense was eating a slushy the owner carelessly left in the car with him on a hot day.”
Facial Violation
As to the defendant’s contention that any analogy comparing a defendant to an animal is a “facial violation” of the RJA, she pointed out that the plain language of the section requires that language must objectively “appeal[] to racial bias.” She wrote:
“[T]here are numerous animal references in modern vernacular that are neither race-based nor derogatory (i.e., ‘busy bee,’ ‘eagle eyes,’ ‘night owl,’ ‘sweet as a kitten’). We do not believe the legislature intended to include such innocuous phrases in the definition of racially discriminatory language, simply based on any reference to any animal.”
Kelety acknowledged that legislative findings accompanying the enactment of §745 indicated that “use of animal imagery in reference to a defendant is racially discriminatory and should not be permitted in our court system” but said that “[w]e simply conclude that the references…in this case were benign.”
Finding that the sentence was unauthorized based on an absence of findings relating to an alleged prior vehicle theft, she concluded:
“The matter is remanded to the trial court for resentencing….The judgment is affirmed in all other respects.”
Presiding Justice Judith McConnell and Justice Terry B. O’Rourke joined in the opinion.
The case is People v. Gomez, 2026 D086608.
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