P. v. Hale

Filed 2/7/08 P. v. Hale CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge (Retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed in part; remanded with directions.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzales, Supervising Deputy Attorney General, Lynne McGinnis and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of kidnapping to commit rape (Pen. Code, 209, subd. (b)(1)),^[1]making criminal threats ( 422), and rape ( 261, subd. (a)(2)) in concert ( 264.1), during all of which he used a firearm ( 12022.53, subd. (b)), 12022.5, subd. (a)(1)). Defendant admitted having committed all these crimes while released on his own recognizance in another case. ( 12022.1.) He was sentenced to life plus 22 years in prison. He appeals, claiming evidence was improperly excluded and admitted, his trial counsel was incompetent, and sentencing error occurred. We reject all his arguments, save one regarding sentencing. As to it, we remand the matter to the trial court, while affirming his convictions and the unaffected sentences.

Facts

On March 19, 2003, defendant and a fellow 1200 Blocc Crips member, both wearing latex gloves, accosted a female Riverside Community College student on campus and forced her at gunpoint to go to an isolated spot. While defendant, wearing a black do rag and sunglasses, restrained her and held a gun to her head, the other donned a condom and raped her. After the rapist had had intercourse with the victim for a while, the victim heard a womans voice, which appeared to be either a signal to the two men or a warning that someone was nearby. Defendant tapped the rapists shoulder and said, That counts, dog. That counts. The rapist withdrew from the victim and the two men took off. The victim and a male student who encountered the pair later on campus positively identified defendant both before and at trial. Defendant presented an alibi defense. More facts will be disclosed as they are relevant to the issues discussed.

1. Issues and Discussion

a. Exclusion of Defense Expert Identification Testimony

In the 1984 case of People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald) (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896), the California Supreme Court held, When an eyewitness identification of the defendant is a key element of the prosecutions case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.

The defense sought permission to introduce the expert testimony of the psychologist whose testimony was at issue in McDonald to impeach the victims identification of defendant as the gunman. The trial court found, at the beginning of the hearing on the admissibility of this testimony, that the second McDonald factor, i.e., that the victims identification is not substantially corroborated by evidence giving it independent reliability did not favor admission because of the identification of defendant by the male student and the discovery of a black do rag, latex gloves, and a black and silver automatic handgun in defendants home. The trial court ultimately concluded that the defense had not met this requirement of McDonald.

The court also pointed out that in People v. Wright (1988) 45 Cal.3d 1126, 1142 footnote 13, the Supreme Court had noted, The scientific studies on the psychological factors affecting eyewitness identifications are sufficiently experimental and open to debate that most courts are still reluctant to approve even the admission of expert testimony on the subject. The court also cited People v. Johnson (1993) 19 Cal.App.4th 778, 787, which called McDonald unusual and problematic. Johnson went on to hold, McDonald . . . proceeded to require the admission of such evidence in specified circumstances. We question whether such an approach is really desirable as a practical matter, or reflects accurately the present state of the law as it has evolved after 1984. More recent cases and commentaries have taken a rather more skeptical and jaundiced view of the likelihood that a parade of paid expert witnesses, using the courtroom for lectures on abstruse psychological or social theories, will truly assist the trier of fact. []  . . . After McDonald, the Supreme Court determined, in [Wright], that no consistency of scientific view by experts on the principles governing the reliability of eyewitness identification existed. . . .  Not only do laymen not agree on the effect of stress on eyewitness identification--behavioral scientists do not agree either. . . . []  . . .  [I]n People v. Alcala [(1992) 4 Cal.4th 742], our high court refused to find an abuse of discretion, by analogy to McDonald, where the trial court refused to admit certain expert psychological testimony. []  . . .  [] The high court concluded [that e]xclusion was consistent with the judicial policy disfavoring attempts to impeach witnesses by means of psychiatric testimony. . . .  [] In addition . . . , the trial courts concern with avoiding undue consumption of time justifies the exclusion of [the] testimony . . .  (People v. Johnson, supra, 19 Cal.App.4th at pp. 787-789.)

When pressed at the hearing as to what factors shown by the record that could have affected the accuracy of the victims identification of defendant the expert would address, defense counsel replied that the psychologist would testify that the photographic lineup shown to the victim was suggestive in that defendants was the only photo in which the subject wore earrings and the position of [his] head was unlike the others. The trial court concluded that these things were not specific psychological factors shown by the record. Moreover, the court added, defense counsel could argue these matters to the jury which would be given CALJIC Nos. 2.91 and 2.92, on the burden of proving identity based solely on eyewitnesses and factors to consider in determining the reliability of eyewitness identification.^[2]

Finally, when asked what the expert would say about factors shown by the record that are not likely to be fully known or understood by the jury, defense counsel stated that the psychologist would testify that his research shows that it is unlikely for an eyewitness to make a positive identification [after] the viewing of one to two seconds. The trial court concluded that this was insufficient for the final requirement of McDonald, apparently accepting the prosecutors argument that lay jurors are perfectly capable of determining, without expert testimony, that a one to two second viewing may not produce a reliable identification.

In contending that the trial court abused its discretion in excluding the proffered expert testimony (People v. Sanders (1995) 11 Cal.4th 475, 509), defendant advances an argument not brought below, i.e., that the very nature of the inherent unreliability of eyewitness identifications means the trial court erred in relying on the identification of him by the male student as part of the corroboration of the victims identification of him. However, he cites no authority for such inherent unreliability and he waived the matter by not making it below. (Evid. Code, 354.) Moreover, the identification of the defendant by the male student was not subject to the same potentially problematic factors that surrounded the victims identification of him. The male student observed the defendant for a prolonged period of time and under nonstressful circumstances. Additionally, because he, like defendant, is African-American, there were no cross-racial identification issues as there were with the victim.

Next, defendant attacks the trial courts finding that the victims identification of him was corroborated by items found in his house. While it is true that most of the items were unremarkable in and of themselves, the fact that all six -- the latex gloves,^[3]black

do rag, black pants, condoms, Oakley-style sunglasses,^[4]and gun^[5]were in defendants home could serve as a reasonable basis for the trial court determining that the victims identification of defendant had, indeed, been corroborated. In citing a number of cases which he claims contained more indicia of corroboration than this case did, defendant ignores the fact that the male students identification of him also corroborated the victims.

We strongly disagree with defendants assertion that expert testimony was needed on the subject of the suggestibility caused by differences between his picture and those of the others in the first photo lineup shown to the victim and the unreliability of her identification made after one or two seconds of viewing the defendant. Both of these were clearly matters the lay jurors could decide for themselves. (See People v. McDonald, supra, 37 Cal.3d at p. 367 [duration of viewing].)^[6]

The defendant goes on at some length to mention other matters that an expert such as [the one chosen by the defense] could have testified about. However, he acknowledges that these matters were not presented to the trial court. Therefore, they were waived. Moreover, the fact that some expert could have testified to them is insufficient for our purposes. We cannot conclude that a trial court ruled incorrectly based on speculation by appellate counsel with no offer of proof being made below.

2. Admission of Prosecution Expert Gang Testimony

The prosecutors initial theory^[7]was that the crimes were some type of gang initiation, as evidenced by defendants statement to the rapist, That counts, dog, that counts. The prosecutor noted that defendant was, according to a Riverside Police Department detective, a member of 1200 Blocc Crips, and was then currently charged, along with three others, for a drive-by shooting. A week later, at an Evidence Code section 402 hearing (402 hearing), the prosecutions gang expert testified that defendant was, indeed, a member of 1200 Blocc Crips, whose territory is a short distance from Riverside Community College and who quite often . . . spill into campus. The detective, who was the case agent on the drive-by shooting, testified that before the instant crimes, Hispanics^[8]shot into a group of 1200 Blocc Crips members at a park and four of the latter, including defendant, got into a car and drove into rival gang Eastside Riva territory. There was evidence that defendant knew there was a gun in the car and the front seat passenger, who was the shooter, had told defendant that he intended to do a drive-by shooting. The car pulled up in front of an apartment complex and one shot was fired at a male Hispanic, but it hit an eight-year-old boy inside the complex. Defendant was in custody pending trial in this matter when the prosecutors office negotiated an agreement with him whereby he would give a statement and later testify against the driver and the shooter and violate no law in exchange for a lesser sentence. One of defendants codefendants received a similar deal. Both were then released from custody.^[9] The expert later learned that within the 1200 Blocc Crips community, it was reported that defendant and this codefendant had told the police about the circumstances of the drive by. Months later, these crimes occurred. The expert opined that these crimes were the result of defendant being labeled a snitchthat when a gang member is suspected of being disloyal, the most common way to prove their allegiance is to commit a violent crime with a fellow gang member. Defense counsel asked the expert on cross-examination during the 402 hearing whether he was aware of any rapes of a stranger committed by 1200 Blocc Crips in order to enhance or maintain their position in the gang.^[10] The expert testified that on May 26, 2002, 1200 Blocc Crips members raped a female in front of fellow members in gang territory. The prosecutor offered to not reveal to the jury that defendant was actually a snitch or made any deals with the prosecution regarding the drive-by shooting, but that he was simply released while two codefendants remained in jail, therefore, he was considered a snitch by his gang.

The trial court initially ruled that the expert could testify before the jury as to his opinion that defendant was a member or associate of 1200 Blocc Crips and that the instant crimes were committed to enhance the standing of defendant and the rapist in the gang, following their being labeled as snitches. Later, in an unreported sidebar conference, which was summarized after trial by the trial court and counsel, the former reversed its initial ruling to the extent that evidence of the drive-by shooting as a predicate offense and defendants connection to it was ruled admissible. After the court overruled defense counsels objection to the evidence concerning the drive-by shooting coming in at all, defense counsel requested that defendants actual participation in the drive by be mentioned so as to minimize his role in that crime.

The expert testified in front of the jury that there had been a shooting at a park into a group of African-American men by two Hispanics on May 30, 2002, while 1200 Blocc Crips members, including defendant, were present. At the home of one of the Hispanics, police found a high school annual, containing defendants picture, which had been crossed out with a reference to the section of the Penal Code defining murder^[11]and the words, Fuck this snail[,] the latter being a derogatory term used for members of 1200 Blocc Crips.^[12] The yearbook also contained words denoting the rival gang, Eastside Rivas. Later on May 30, 2002, a Hispanic man who was standing in front of an apartment complex in Rivas territory was shot at from a car containing defendant and fellow gang members. The shooter had told the other three in the car, who were relatively new to the gang, that he was going to show them how to do a drive-by shooting. Defendant knew there was a gun in the car. A four year old, who was in the courtyard of the complex, was hit by one of the eight or more bullets fired. All four occupants of the car were arrested. The expert later learned that defendant and the other backseat occupant of the car had been released from custody while the drive-by shooting case was pending. This other occupant had talked to police about the shooting and membership in the 1200 Blocc Crips. Fellow gang members assumed that defendant and the other occupant were cooperating with the police or they would not have been released from custody. Gang members who do this are punished, perhaps even with death. The expert explained how a gang member who has been accused of being such a snitch could benefit by committing a rape. On cross-examination by defense counsel, the expert testified that defendant was not the shooter.

The expert testified that a deaf girl had been partying with 1200 Blocc Crips at a motel; two members raped and sodomized her, then had other members watch while they forced her to orally copulate them. Both perpetrators were convicted of these crimes.

Defendant here contends that evidence of his involvement in the drive-by shooting and of the sex crimes committed against the deaf victim by 1200 Blocc Crips should have been excluded as irrelevant. However, as to the first, defendant ignores the trial courts reason for admitting the details of the drive-by shooting, i.e., that it helped establish that defendant was a member of 1200 Blocc Crips and it, and the fact that he was trying to redeem himself for snitching on his fellow gang members for the drive-by shooting, was relevant to his motive for these crimes. The jury was so instructed. As to the second, the trial court had overruled defense counsels irrelevancy objection on the basis of the prosecutors assertion that it demonstrated the foundation of the experts expertise. The evidence was indeed relevant to support the experts opinion that defendant benefited from engaging in the instant crimes because they enhanced his standing in the gang.

3. Incompetency of Trial Counsel

After six days of testimony, including that of most of the defense witnesses, defense counsel contacted the prosecutor and told him that he wanted to have a witness testify for defendant as an expert on gangs. The prosecutor asked the trial court for a 402 hearing because he did not know if the appropriate foundation could be laid for this potential expert witnesss testimony and he had no discovery concerning him. Noting that the jury had already been kept waiting for 30 minutes due to matters in other cases, the trial court said the hearing should take place later in the day. However, the matter was not mentioned again until after almost six months later and long after the verdicts had been rendered.

At that point, defense counsel asked the court to put on the record what had been omitted from it at the time it had occurred. He said that during trial, he had made an offer of proof at an unreported sidebar^[13]that this potential expert witness was, indeed, an expert in gangs, and his opinion was that the instant crimes were inconsistent with a gang member attempting to demonstrate his loyalty to the gang. He added that this potential expert witness would testify that gang members would not have allowed defendant to use a gun in the presence of another gang member if they doubted his loyalty to them. Counsel said that the trial court had rejected his offer of proof. The prosecutors recollection was otherwise. He recalled arguing that the proposed testimony lacked foundation in terms of the potential expert witnesss qualifications as a gang expert. He remembered that the trial court had told defense counsel the latter would have to make more of a showing of the potential expert witnesss qualifications to testify to the opinions the latter had reached. Although the prosecutor conceded that defense counsel had sufficient information to eventually be able to show that this potential expert witness had the requisite qualifications to testify as an expert, he had issues with his credibility and bias.^[14] The prosecutor did not recall the trial court telling defense counsel he could not have this potential expert witness testify. He remembered anticipating that defense counsel would have him testify during a 402 hearing, but he did not. The trial court agreed with the prosecutor that defense counsel failed to pursue the matter via a 402 hearing. Defense counsel then appeared to agree with the trial court.^[15]

Despite this, almost a year later, defense counsel reversed himself. He claimed that he had made an offer of proof, at an unreported sidebar conference, that the potential expert witness would opine whether or not a gang as an initiation event would send a suspected traitor with a gun to have another gang member perform an atrocious crime. And his opinion was that they would not let a suspected gang member be the one that had the gun. He remembered that the trial court ruled that this opinion was inadmissible, so there was no point to counsel pursuing a 402 hearing concerning this potential expert witnesss qualifications. This did not match the recollections of the prosecutor or the trial court. The latter said that he saw the potential expert witness obviously conducting himself during trial as though he was prejudiced in favor of defendant,^[16]and the prosecutor assumed that because the witness could so easily be impeached based on this behavior, defense counsel had decided not to have him testify after all. The prosecutor did not recall defense counsel ever specifically making an offer of proof as to what opinion the potential expert witness had. He insisted that the issue remained as to the potential expert witnesss qualifications as an expert on gangs. The trial court stood by the recollection it had six months after the incident, which is stated above. The court added that if defense counsel had made an offer of proof as to the potential expert witnesss qualifications, it would have allowed him to testify as to his opinion and if there was a basis for questioning his objectivity, this could be raised by impeachment or on cross-examination by the prosecutor. The court said it did not recall defense counsel making an offer of proof as to what the potential expert witnesss opinion was.

Defendant here contends that his trial counsel was incompetent for failing to pursue a 402 hearing and this failure amounted to the withdrawal of a potential meritorious defense. He asserts that it requires reversal of his convictions, when combined with the other errors mentioned in his appeal, which we have already rejected.^[17] However, to carry his burden in this regard, he must demonstrate a reasonable probability that had he made a foundational showing at a 402 hearing, his witness would have qualified as an expert, the trial court would have permitted his testimony and it would have made a difference in the outcome of this trial. (Strickland v. Washington (1984) 466 U.S. 668, 684-686.) With no evidence before this court as to the witnesss qualifications,^[18]defendant cannot even clear the first hurdle. Additionally, as the prosecutor pointed out, the fact that he could have easily impeached this witness for his bias in favor of defendant may have motivated defense counsel not to pursue the matter, despite his contrary recollections. Moreover, given the strength of the case against defendant, and the possibility this witness could have been impeached due to his bias, defendant cannot possibly even make a decent stab at the final hurdle.

4. Sentencing

a. Security Fee

The sentencing court imposed a $20 security fee, pursuant to section 1465.8, to which defense counsel did not object. Defendant here contends that because section 1465.8 became effective after defendant committed these crimes, the imposition of the fee on him was an improper retroactive application of the statute and violated the prohibition against ex post facto laws.^[19] We disagree.

We begin with his ex post facto argument. [T]he ex post facto clauses of the state and federal Constitutions are aimed at laws that retroactively . . . increase the punishment for criminal acts. [Citations.] (People v. Grant (1999) 20 Cal.4th 150, 158.) [A]n ex post facto violation does not occur simply because a criminal defendant loses substantial protections [citation], or suffers some disadvantage after the crime occurs. [Citations.] (People v. Ansell (2001) 25 Cal.4th 868, 884.) The ex post facto clause does not prohibit all increased burdens; it only prohibits more burdensome punishment. (People v. Acuna (2000) 77 Cal.App.4th 1056, 1059.) We must ascertain whether the legislature meant the statute to establish civil proceedings. [Citation.]  . . .  If . . . the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further exame whether the statutory scheme is so punitive either in purpose or effect as to negate [the States] intention to deem it civil. (Smith v. Doe (2003) 538 U.S. 84, 92.)

In People v. Wallace (2004) 120 Cal.App.4th 867, 876, the court held that the Legislature imposed the $20 fee [in 1465.8] for a nonpunitive purpose. In making the second inquiry of the ex post facto test, stated above, the Wallace court concluded, Defendant has failed to present the clearest proof that the $20 court security fee, which is imposed in criminal and civil cases, is so punitive in its purpose or effect as to override the Legislatures treatment of it as a nonpunitive measure. (Wallace, supra, at p. 878.)

As to retroactive application of section 1465.8, a law is retrospective if it . . . increases the punishment for . . . past . . . conduct. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.) The section does not enhance defendants punishment for conduct previously committed. A statute is non-penal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. [Citations.] (People v. McVickers (1992) 4 Cal.4th 81, 85.) Section 1465.8s purpose is nonpunitive: it is to promote and fund court security, when necessary. Because the fee does not constitute punishment for past crimes, there is no unfairness in the lack of notice of a change in the law following the commission of the offense. (McVickers, supra, at pp. 89-90.)

b. Consecutive Term for Count 2

The sentencing court imposed a life term for kidnapping to commit rape, plus 10 years for its gun use enhancement, stayed punishment for the rape and its gun use enhancement under section 654, and designated making criminal threats as the principle offense, imposing a two-year term for it and a 10-year term for its gun use enhancement. Below, defendant made the argument that the court should also have stayed his sentence for making terrorist threats pursuant to section 654 because they were made to facilitate the rape.^[20] The sentencing court rejected his argument, finding the threats that [defendant] made to the victim, as he was departing from the scene of the crime, constitute [a] separate crime. . . . I dont think it had the same objective, i.e., the rape. It had a different objective, at the time [defendant] spoke those words to the victim at the conclusion of the rape. However, as the People themselves concede, there is no evidence defendant made a threat after the conclusion of the rape, as he and the rapist were leaving the scene. The victim testified that defendant threatened her when he initially encountered her. She also told a campus police officer that once defendant and the rapist got her to the place where the rape occurred, defendant said several times, If you scream, Ill shoot you. However, there is no evidence that defendant said anything to the victim after the rape was accomplished.

Here, defendant makes a different argument than he made below, i.e., that the threats had the same objective as the kidnapping to commit rape.^[21] Because the trial court was not presented with this issue below, we direct the trial court to determine whether section 654 prohibits the imposition of sentence for the terrorist threats that were made during the rape in light of the sentence imposed for the kidnapping.

c. Cunningham Error^[22]

The sentencing court imposed the upper term on the gun use allegation attached to the terrorist threats conviction, citing the facts that the crime involved great violence, bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness, that defendant induced another to participate in it or occupied a position of leadership, and the manner in which it was carried out indicated planning, sophistication or professionalism. In supplemental briefing, defendant contends that the failure to have jury findings beyond a reasonable doubt as to the existence of these factors violates Cunningham.

We agree with the parties that Cunningham error occurred, but we also agree with the People that it is harmless.

In People v. Sandoval (2007) 41 Cal. 4th 825, 839, the California Supreme Court held, [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.

The commission of the crime of making terrorist threats did not involve great violence (although, arguably, the kidnapping and rape did) or great bodily harm. While it is beyond dispute that defendant personally threatened the victim with great bodily harm, [a]ggravating circumstances are based upon facts that are not elements of the crime. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) Certainly, a jury could have found that defendant holding a gun to the victims temple and physically restraining her before and throughout the rape and threatening repeatedly to shoot her if she screamed constituted acts disclosing a high degree of cruelty, viciousness or callousness, however, we cannot say beyond a reasonable doubt that a jury would have so concluded beyond a reasonable doubt. More importantly, what occurred during the kidnapping and rape are irrelevant to the aggravating circumstances surrounding the threats and the use of the gun during them. (See People v. Garcia (1995) 32 Cal. App.4th 1756, 1779 (opinion of this court) [In selecting the base term for a substantive offense, the trial court can use facts relating to the crime only if they relate to that offense. In selecting the base term for an enhancement, the trial court should use such facts only if they relate to that enhancement.]) Likewise, while a jury might have concluded that defendant occupied a position of leadership or dominance over the rapist as indicated by him telling the latter that enough had been done to the victim (That counts, dog, that counts. Lets go.), it might not have done so and defendants position of leadership or dominance related only to the kidnapping and rape, not to the threats, which only he made. However, the trial courts finding that the manner in which the crime was carried out indicated planning, in that defendant came with a gun, was supported by indisputable evidence, and does not constitute a dual use of the enhancement for using a gun, as bringing it to the scene and using it are two different things.^[23] Therefore, the Cunningham error was harmless.

Disposition

The convictions and the sentences for counts 1 and 3 and their attendant enhancements are affirmed. The matter is remanded to the trial court to determine if section 654 applies to count 2 and its attendant gun use enhancement. If the court determines that it does not, the sentences for count 2 and its enhancement are affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statuatory references are to the Penal Code unless otherwise indicated.

^[2] CALJIC No. 2.91 states, The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which [he] is charged. [] If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find [him] not guilty.

CALJIC No. 2.92 states, Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness[s] identification of the defendant, including, but not limited to, any of the following: [] [The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;] [] [The stress, if any, to which the witness was subjected at the time of the observation;] [] [The witness[s] ability, following the observation, to provide a description of the perpetrator of the act;] [] [The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;] [] [The cross-racial [or ethnic] nature of the identification;] [] [The witness[s] capacity to make an identification;] [] [Evidence relating to the witness[s] ability to identify other alleged perpetrators of the criminal act;] [] [Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;] [] [The period of time between the alleged criminal act and the witness[s] identification;] [] [Whether the witness had prior contacts with the alleged perpetrator;] [] [The extent to which the witness is either certain or uncertain of the identification;] [] [Whether the witness[s] identification is in fact the product of [his/her] own recollection;] [] and any other evidence relating to the witness[s] ability to make an identification.

^[3] Contrary to the suggestion in defendants opening brief, the gloves in defendants apartment were not for household chores and cleaning. Both boxes of gloves bore the defendants fathers name. Defendants mother testified that they had been issued to the father for a medical reason. Curiously, the father did not live in the apartment with defendant and his mother. According to her, the father kept a change of clothes there and stayed overnight only on occasion during the two years she and defendant lived there.

^[4] In his reply brief, defendant contends that the sunglasses seized from his house did not match the description of them given by the victim, citing pages 611 and 612 of the Reporters Transcript. However, the relevant testimony on those pages is as follows,

Q. [DEFENSE ATTORNEY]: Are those all of the sunglasses that vaguely match the description, black or dark colored Oakley-type sunglasses that were found at [defendants] apartment?

A. [WITNESS]: Yes

Q. [DEFENSE ATTORNEY]: And are any of those Oakley sunglasses?

A. [WITNESS]: I would say, [N]o.[] (Italics added.)

On page 617, the same witness was asked, These sunglasses, would you say they resembled in some respects Oakley-style sunglasses. The witness replied, Yes, I believe they resemble that style, yes.

The victim never testified whether the sunglasses the gunman wore were Oakley-type, actual Oakleys, or anything else. The male student testified the sunglasses the taller of the two men wore were called Oakleys.

^[5] The trial court did not rely on the condoms, sunglasses or pants in making its ruling.

^[6] Although we note that McDonald appears to endorse expert testimony that the size and type of photograph an eyewitness is shown may cause suggestibility (People v. McDonald, supra, 37 Cal.3d at p. 362), at the same time we acknowledge that the world of 2005, when this case was tried, is not the world of the early 1980s, when McDonald was tried. People are far more sophisticated in psychological matters now than they were then.

^[7] The prosecutor formulated this theory after working on the case for only 10 days.

^[8] A search of the home of one of them turned up a high school annual, containing defendants picture, which had been crossed out with references to 1200 Blocc Crips.

^[9] Of course, the deal fell apart when defendant was arrested for these crimes.

^[10] Proving, once again, that an attorney should never ask a question when he/she does not know the answer.

^[11] This implies some desire to either kill [him] or have [him] killed or at least wish [that he was] dead.

^[12] The annual contained similar markings referring to a fellow member of defendants gang.

^[13] Once again, the problem of the trial courts habit of not having sidebar conferences reported unless counsel specifically requested them to be rears its ugly head in this appeal. (See p. 11, ante.)

^[14] Later, the trial court recalled that this potential witness sat in the courtroom during a great portion of the trial with [defendants] family. The prosecutor noted that the potential witness was out in the hallway holding hands with [defendants mother]. He was a support person for [defendants] family. We further note that this witness testified for the defense, not as an expert, but in support of defendants alibi defense. During that testimony, he stated that he had known defendant for 11 or 12 years, he worked with his father, and he did not believe that defendant was part of or associated with a gang.

^[15] He said, We discussed it informally but that there was an agreement before [the potential expert witness] would render that sort or that type of opinion as an expert we would revisit the issue outside the presence of the jury and I would determine that he was competent as an expert or qualified as an expert to render that type of opinion and we never just revisited the issue. (Italics added.)

^[16] See footnote 15, ante.

^[17] Having concluded there was no prejudicial error in regard to any of the issues raised by defendant, we necessarily reject his cumulative error argument.

^[18] Defendants assertion to the contrary, the fact that this witness worked for 10 years for a program that is exclusively dedicated to working with gang members to try to integrate them back into society does not automatically qualify him as an expert on gangs.

^[19] Defendant acknowledges that this issue is currently pending before the California Supreme Court in People v. Alford (May 10, 2006, S142508)__Cal.4th__[2006 C.D.O.S. 3886], review granted May 10, 2006.

^[20] Contrary to defendants assertion here, counsel below did not argue that the threats had the same objective as the kidnapping for rape, although that is the argument he makes on appeal.

^[21] See footnote 20, ante.

^[22]Cunningham v. California (2007) ___US___ [127 S.Ct. 856, 166 L.Ed.2d. 856] (Cunningham).

^[23] The fact that both defendant and the rapist came with gloves, which they wore throughout the encounter, while indicative that defendant planned to kidnap and rape the victim, did not prove that he planned to threaten her. The trial court also found that the rapist came wearing a condom, however, in our view, the victims testimony did not support this, moreover, it is unrelated to the crime of making terrorist threats.