I concur in the judgment, but disagree with the majority in their analysis of the admission of an audio cassette, consisting of several Mexican songs, that was played to the jury and that was admitted under the aegis of “victim impact evidence.” In my view, this cassette should not have been admitted.
“In a capital trial, Eighth Amendment principles ordinarily do not prevent the sentencing authority from considering evidence of ‘the specific harm caused by the crime in question.’ (Payne v. Tennessee (1991) 501 U.S. 808, 825 [115 L.Ed.2d 720, 111 S.Ct. 2597].) The high court has explained that the prosecution has a legitimate interest in rebutting the mitigating evidence that the defendant is entitled to introduce by introducing aggravating evidence of the harm caused by the crime, ‘ “reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” ’ (Ibid.) ‘[W]e also have found such evidence (and related “victim character” evidence) admissible as a “circumstance of the crime” under section 190.3, factor (a).’ [Citation.] We have cautioned, however, ‘that allowing such evidence under factor (a) “does not mean that there are no limits on emotional evidence and argument.” ’ [Citation.] ‘ “ ‘The jury must face its obligation soberly and rationally, and should not be given the *313impression that emotion may reign over reason.’ ” ’ [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1286-1287 [57 Cal.Rptr.3d 543, 156 P.3d 1015], fn. omitted.)
The use of music, an inherently emotional form of expression, in victim impact evidence, has been a concern to a number of courts. In U.S. v. Sampson (D.Mass. 2004) 335 F.Supp.2d 166, 191-193, the court excluded a 27-minute videotape containing 200 still photographs of the victim, in part because of the “evocative accompanying music” by the Beatles, James Taylor and others. In Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330, the Texas criminal court held inadmissible a similar videotape in part because of the accompanying music by Enya and Celine Dion singing “My Heart Will Go On.” And this court has cautioned against the use of “stirring music” accompanying a filmed tribute to the victim. (Prince, supra, 40 Cal.4th at p. 1289; see also Kelly v. California (2008) 555 U.S. 1020, 1025 [172 L.Ed.2d 445, 129 S.Ct. 564, 567] (separate statement of Stevens, J., on denial of cert.) [noting the inherent risk of prejudice of victim impact evidence “enhanced with music”]; Kelly, at pp. 1026-1027 [129 S.Ct. at p. 568] (statement of Breyer, J., dissenting from cert, denial); Kelly, at p. 1020 [129 S.Ct. at p. 564] (noting Justice Souter’s vote to grant cert.).) Music rarely if ever has informational content that can contribute to a capital jury’s sober and rational decisionmaking. Its purpose and effect, generally, is to evoke an emotional response from the jury. Such emotional evocation, while suitable for a memorial tribute to the victim, is wholly inappropriate at the penalty phase of a capital trial, where the purpose is not to honor the victim but to decide whether the defendant should receive a death sentence. (See People v. Kelly (2007) 42 Cal.4th 763, 805 [68 Cal.Rptr.3d 531, 171 P.3d 548] (conc. & dis. opn. of Moreno, J.).)
In the present case, Yolanda Navarro’s mother Armida testified at length about the close relationship Yolanda had with her father. She further testified that Yolanda had made her father a cassette tape of Mexican songs on the theme of loss and parting. The majority does not explain what additional information was conveyed to the jury by playing the songs. That Yolanda’s father, who was no longer alive, was close to Yolanda and undoubtedly felt heart-wrenching loss at her death was well established by Armida’s testimony. Assuming arguendo that the fact that Yolanda made a tape for her father was relevant for showing her closeness to her father and therefore the great impact that her death had on him, the majority does not explain how listening to her actual selection of songs assisted the jury one iota. The contents of the cassette had nothing to do with defendant’s character, culpability, or the circumstances of the offense, which are supposed to be the jury’s sole concern during the penalty phase. (See People v. Martinez (2010) 47 Cal.4th 911, 963 [105 Cal.Rptr.3d 131, 224 P.3d 877].) The fact that she selected sad songs rather than happy ones, Spanish songs rather than English *314ones, one genre rather than another, did not make defendant more or less deserving of the death penalty. On the other hand, these songs of loss, even if the jury did not understand Spanish lyrics, had the distinct potential of being used to manipulate the jurors’ emotions.1
I nonetheless conclude on the present record that the trial court’s error in admitting the tape was not prejudicial. It can be reasonably inferred that only a “few” of the songs were played (maj. opn., ante, at p. 299), the portion played was a relatively small part of the prosecutor’s penalty phase case, and, precisely because its connection to victim impact or character evidence was so tenuous, the music here was less likely to bias the jury than music accompanying victim impact evidence found to be prejudicially admitted. (See, e.g., Salazar v. State, supra, 90 S.W.3d at p. 335.)
Appellant’s petition for a rehearing was denied September 1, 2010.
The majority states: “Had Yolanda instead created a collage of photographs of Mexico for her father, taken by individuals unrelated to the family, the trial court would have likewise acted properly in allowing the jury to view it.” (Maj. opn., ante, at p. 299.) Although this dictum is broadly stated, I do not understand it to excuse trial courts from carefully weighing the probative value and potential prejudicial impact of admitting artistic works by victims at the penalty phase.