John the Dog’ Day Afternoon: Fourth District Holds Analogy Used to Explain Circumstantial Evidence to Jurors Didn’t Violate Racial Justice Act

By David Saunders
Published February 20, 2026

Article courtesy of CEB

Is it a violation of California’s Racial Justice Act to use a story about a dog and a blue slushy to explain to jurors the concept of circumstantial evidence? In People v. Gomez (Jan. 28, 2026, D086608), the Fourth District Court of Appeal found that such use was benign.

The Racial Justice Act (RJA) can be violated if during trial, an attorney used racially discriminatory language about the defendant’s race, ethnicity or national origin. (Pen. Code, § 745, subd. (a).) Racially discriminatory language is “language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant’s physical appearance, culture, ethnicity, or national origin.” (Pen. Code, § 745, subd. (h)(4).)

In this case, Daniel Diaz Gomez was convicted in San Diego County Superior Court of taking or driving a vehicle unlawfully, conspiracy to commit vehicle theft and receiving stolen property. Gomez had been the driver of a vehicle towing a motorhome that he neither owned nor had permission to move. Two other people had been involved: a person in the passenger seat and a person in the motorhome. On appeal, Gomez argued that the prosecution had violated the RJA by using a scenario involving a character named “John the dog” to explain to the jury the concept of circumstantial evidence.

During voir dire, the prosecutor asked potential jurors to imagine that they were in a car with their dog, John, on a hot summer day. It was not a “Coachella Valley hot summer day, because that would be bad for John, but a normal warm day,” the prosecutor said. The jurors were to imagine that they left John in the car to get some groceries, leaving behind a “blue-colored slushy ice cream.” When they came back, the blue slushy was “pretty much all eaten or drank”, and John’s tongue was blue.

The prosecutor then asked the jury to imagine that John was on trial for eating the slushy. “Would they think that John was guilty?” Some jurors nodded. But the prosecutor explained:

I haven’t told you, though, that anyone has actually seen Mr. Dog drink or eat the slushy, right? So that would be direct evidence if in that trial … the witness comes in and says, “I have seen the dog lick that slushy.” But we don’t have that. We only have information of there is a slushy and it’s full. And then you come back and it’s not there anymore, and we have a blue tongue. That is circumstantial evidence. All right?

Defense counsel didn’t object to this story on RJA grounds, and during closing argument returned to the dog analogy:

I was watching the evidence getting put on about the case, I thought, well, wait a minute. We’ve got three dogs here. We’ve got John and Paul and Ringo. And all of them got blue tongues. … Maybe they all got in the slushy. Maybe there was some blue candy there. Maybe one of them thought it was okay to drink the slushy and was told it was okay to drink the slushy.

In an opinion authored by Justice Julia C. Kelety, the Fourth District Court of Appeal held that Gomez’s RJA claim was forfeited because defense counsel failed to object at trial. In any case, the court held, the use of “John the dog” did not constitute racially discriminatory language:

The story painted an endearing picture of “John the dog,” a pet that could hardly be blamed for drinking a cold slushy while alone in a car on a hot day. Later, the prosecutor referred to “John the dog” as extremely intelligent. None of this language was derogatory and none of it suggested that John was a bad actor or had negative character traits.

Although “animal imagery can, and often is, used in a racially discriminatory manner,” the court found that the prosecutor’s references to John the dog were benign. Still, the court noted 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.”

For further discussion of the RJA, see chapter 18 of California Criminal Law Procedure and Practice (Cal. CEB).

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