Barajas

Defendant David Barajas appeals from Ms conviction of second degree murder. In the published part of tMs opinion, we hold that the court did not err in failing to give CALJIC No. 8.72 (reasonable doubt between murder and manslaughter) sua sponte when it gave a proper instruction in accordance with CALJIC No. 17.10 (conviction of lesser offense instead of greater). In the unpublished part, we address two additional jury instruction issues, defendant’s contention that the court erred in denying his motion for a new trial, and defendant’s contention that the attorney who represented him on the new trial motion rendered ineffective assistance. We affirm.

FACTUAL AND PROCEDURAL HISTORIES

Sometime before midmght on September 16, 2000, toward the end of a night of drinking and cocaine use, defendant and two Mends arrived at a Modesto bar. The three became involved in a confrontation with a group of other patrons. Defendant drew a handgun from Ms pants and shot SidroMo Alvarado Perez, one of the other patrons, five times at close range, killing him. The disMct attorney filed an information charging defendant with murder (Pen. Code, § 187) with a special allegation of handgun…