PESCADOR

Suspecting his wife, Norma Pescador, of infidelity, defendant Manolito Pescador fired 10 nails into her head with a nail gun, killing her. An information charged defendant with murder. (Pen. Code, § 187.) The information also alleged defendant used a deadly weapon, the nail gun. (§ 12022, subd. (b)(1).) A jury found defendant guilty of murder and found the allegation true. Sentenced to 26 years to life, defendant appeals, contending: (1) the failure of the substitute trial judge to fully review the transcript deprived defendant of his right to a jury trial; (2) instructional error; (3) ineffective assistance of counsel; and (4) commentary by the trial court must be stricken from the abstract of judgment. The People concede the last contention and, in the unpublished portion of this opinion, we remand for a correction of the abstract of judgment. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

DISCUSSION

I. Substitution of Trial Judges*

II. Instructional Error

A. CALJIC Nos. 8.71 and 8.

Defendant challenges CALJIC Nos. 8.71 and 8.72, arguing these instructions violate his due process rights by allowing a jury to make a determination…