This instruction has been upheld even if a coparticipant is a witness: If a jury were to give absolutely literal credence to the 1996 instruction that they not “discuss or give any considerationas to whythe other person is not being prosecuted,” it might feel it 617 could not give consideration to admitted evidence that, for example, the witness had been granted immunity in exchange for testimony, since the grant of immunity was the reason the witness was not being prosecuted. Clearly, such an understanding would be erroneous since the evidence of the grant of immunity would be highly probative of witness bias and, therefore, admissible and appropriate for jury consideration. (Evid.Code, §§ 350; CALJIC No. 2.20 [believability of witnesses].

Moreover, the exclusion of the evidence carried through to the penalty retrial, at which appellant sought to show that Veronica wasthe primary, and not necessarily the only, perpetrator. Thus, neither Evidence Code section 350 nor Evidence Code section 352 provided a basis for barring the evidence. The trial court abusedits discretion when it ruled that the evidence was inadmissible.

Admission of Sergio Corrieo's improper opinion evidence also invaded the province of the jury (Summers v. A.L. Gilbert Co. (1999) 69 Cal.AppAth 1155, 1182-1183; People v. Tortes (1995) 33 Cal.App.4th 37, 46-48), the entity charged with the responsibility of determining the appropriate sentence, thereby depriving appellant of his state and federal constitutional right to trial by jury (U.S. Const., Amends. 6 and 14; Cal. Const., art. I, §16; State v. Huertas (Ohio 1990) 553 N.E.2d 1058, 1065, -129- [expressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant's constitutional right to have the sentencing decision made by the jury and judge].) In addition, because his opinions were irrelevant (State v. Bernard, supra, 608 So.2d at pp. 971-972; State v. Huertas, supra, 553 N.E.2d at p. 1065), their admission violated Evidence Code section 350 and appellant's due process right to a fair trial (U.S. Const., Amend. 14; Cal. Const., art. I, §§7andI5;cf.Brutonv. United States (l968) 391 U.S. 123, 131,fn.