The opinion
MOSK, J.
I concur in the judgment, but must comment on one questionable aspect of the opinion that may cause prosecutors in future cases to err.
*587 In his closing penalty argument, the prosecutor discussed the “impact that is left on those who survive, the near and dear. And I think that is a factor that certainly at least you might give some thought to.” (Italics added.) This was error: impact on survivors is not one of the enumerated factors in Penal Code section 190.3.
Referring to People v. Ghent (1987) 43 Cal.3d 739 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ], the majority attempt to draw a distinction between evidence describing the effect on the surviving family and mere argument on the subject. While in Ghent there was argument and no testimony, this court did not indicate its approval. Indeed, the majority referred to “the prejudicial effect of the prosecutor’s comments” (id. p.772, italics added), but found it “minimal or nonexistent.” (Accord, People v. Miranda (1987) 44 Cal.3d 57, 113 [ 241 Cal.Rptr. 594 , 744 P.2d 1127 ].) There is, of course, a significant difference between affirmative approval of a proceeding and finding it to be error but nonprejudicial.
As I discussed in my concurring opinion in People v. Hovey (1988) 44 Cal.3d 543, 586 [ 244 Cal.Rptr. 121 , 749 P.2d 776 ], the Supreme Court case of Booth v. Maryland (1987) 482 U.S. 496 [ 96 L.Ed.2d 440 , 107 S.Ct. 2529 ], is the latest word on the subject of injecting surviving family concerns in a criminal case. While there was evidence admitted in Booth concerning the devastating effect on family, Justice Powell’s opinion for the court was not limited to the impropriety of evidence as distinguished from argument. He declared: “We thus reject the contention that the presence or absence of emotional distress of the victim’s family, or the victim’s personal characteristics, are proper sentencing considerations in a capital case.” (Id. at p. 507 [ 96 L.Ed.2d 451 , 107 S.Ct. at p. 2535 ].) He continued by warning that the “presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on relevant evidence concerning the crime and the defendant.” (Italics added.) (Id. at p. 508 [ 96 L.Ed.2d at p. 452 , 107 S.Ct. at p. 2536 ].) He did not distinguish between the state’s presentation by means of evidence or argument. Obviously the purpose would be identical: “to inflame the jury.”
California preceded Booth with People v. Levitt (1984) 156 Cal.App.3d 500, 516 [ 203 Cal.Rptr. 276 ], in which the court emphasized that the bereavement of the victim’s family could not be considered by the sentencing agency. If consideration is improper, a fortiori argument on the subject is improper.
*588 In my concurring opinion in Hovey , I expressed the hope that counsel in future cases will be guided by Booth and Levitt and will avoid presentation of such extraneous matters by either testimony or argument. I trust the majority opinion will not be seen as diluting that warning.