Use of an analogy, in jury selection and closing, of a dog left in a hot car drinking a blue Slurpee does not violate the Racial Justice Act.

People v. Gomez, 4^th Dist., Div.1 (02/04/2026)

A jury convicted Gomez of taking or driving a stolen vehicle, among other related charges.  The trial court sentenced him to  six years.  The middle term of 3 years for driving a stolen vehicle with a qualifying prior, doubled because of a prior strike.  Gomez appealed.

On appeal, Gomez argues two issues.  One, the prosecutor violated the Racial Justice Act (RJA) in jury selection and closing.  Second, that Gomez never admitted, nor did the plaintiff prove, a qualifying prior.  The panel rejects the former, but agrees with the latter, remanding for a retrial on priors.

During jury selection, the plaintiff used an analogy of a dog left in a hot car with a blue Slurpee in the center console.  Plaintiff illustrated circumstantial evidence by posing the hypothetical of the car’s owner returning and finding the Slurpee half empty and the dog’s tongue bright blue.  During closing, plaintiff analogized the dog hypo to the evidence introduced in trial regarding Gomez and the stolen vehicle.  Defense counsel did not object.

On appeal, the panel finds the issue forfeited via trial counsel's failure to object.  But it goes on to address the issue anyway, finding no violation.  Although animal analogies carry the possibility of being found as substitutes for racial slurs, the panel finds this one benign.

On the second issue, the panel agrees that Gomez admitted no qualifying prior and plaintiff offered no evidence of such a prior.  On remand, the trial court is to conduct a court trial on the issue of Gomez’s priors.