California criminal cases that contain gang enhancements seem to give rise to novel evidentiary issues. One such issue involves booking questions, questions asked of inmates upon their arrival at jail. In addition to innocuous biographical questions, inmates are also asked if they have any gang affiliations. This because California jails segregate gang members into special housing units for reasons of safety and administrative ease. Suffice to say it would not be wise to place an inmate who belongs to Gang X in a housing unit comprised of inmates from rival Gang Y.
In cases with gang allegations, prosecutors would, at trial, routinely introduce an inmate's response to this booking question to prove the gang allegation. Recently, the California Supreme Court held that using an inmate's response to the booking question regarding gang affiliation, when the inmate hadn't been advised of his Miranda rights beforehand, violated the Constitution. People v. Elizalde (2015) 61 Cal.4th 523. Which seems fair. Just because you are arrested shouldn't mean you cannot be safely housed at the jail unless you incriminate yourself.
But here the Fifth District panel has occasion to decide an ancillary issue. Are your codefendants' answers to the booking question about gang affiliation admissible against you, even if the codefendants do not testify at trial?
The panel answers the question "yes". Finding that the non-testifying codefendants' answers to the booking question are not "testimonial" because the intent of the booking officer was not to preserve evidence for future prosecution, rather just make sure the inmates were safely housed, the panel sees no Constitutional impediment to their admission against the defendant. So while his own statement that he is a gang member is inadmissible, his codefendants' statements that they are gang members is admissible.
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