Admission of a witness’s identification of appellant from a photo array lineup was not error because the lineup was not unduly suggestive. Appellant argued that the photo array was unduly suggestive because his photo showed a much darker complexion than the other included photos. The court rejected this argument because the witness had been advised that lighting conditions meant that the photos might not accurately depict the subjects’ complexions. Further, the photo array as a whole included individuals who resembled appellant in other ways, and any error would have been harmless in any case. Next, the court held that a special circumstance under Penal Code section 190.2, subdivision (a)(22), was properly found true where a bystander was killed during an attempt to commit a gang-related murder. The court also found that, while an appellant sentenced to life without possibility of parole did have standing to raise an Eighth Amendment challenge to a new special circumstance, the record in this case did not establish that California’s death penalty law no longer provided a meaningful basis for distinguishing between capital murder and other types of first degree murder. Finally, on remand from the California Supreme Court with instructions to reconsider the issue in light of People v. Chiu (2003) 113 Cal.App.4th 1260, the court declined to follow the reasoning of that case and once again struck an enhancement under section 12022.53, subdivision (d), because an enhancement under that section cannot apply where appellant has been sentenced to a longer term of imprisonment under a different section.