Distinguished
Distinguished by People v. Jasso, 211 Cal. App. 4th 1354 (2012)
But Rich is distinguishable because the prosecutor there did not attempt to apply a legal principle to facts in the way that the prosecutor here did.
The opinion
MOSK, J.,
I concur.
My only criticism of the majority opinion is its treatment of the prosecutor’s comment concerning the effect on victims’ families. Once again, as in People v. Siripongs (1988) ante, page 548 [ 247 Cal.Rptr. 729 , 754 P.2d 1306 ], the majority construe the United States Supreme Court prohibition against consideration of the impact on the families of victims to be limited to testimony.
Such restricted reading of Booth v. Maryland (1987) 482 U.S. 496 [ 96 L.Ed.2d 440 , 107 S.Ct. 2529 ] is clearly erroneous. The purpose of excluding discussion of the grief of families, as Justice Powell made clear, is so as not “to inflame the jury.” It should be obvious that a jury can be inflamed by calculated argument as well as by witness testimony. (See also People v. Levitt (1984) 156 Cal.App.3d 500, 516 [ 203 Cal.Rptr. 276 ].)
The error in permitting argument on this subject is also manifest when we note that family impact is not one of the enumerated factors permissible for the jury to consider in determining penalty (Pen. Code, § 190.3).
Despite the majority’s misinterpretation of Booth , however, they reach a tenable result. Although the prosecutor improperly asked the jury, both in the guilt and penalty phase arguments, to consider the effect on the families at Christmas, his was a mere passing reference and he did not dwell on the *1125 subject at length. Thus I conclude that under these circumstances the error was not prejudicial.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied August 25, 1988, and the opinion was modified to read as printed above.