Is brandishing a lesser-related crime in a capital case?

The trial court's comments upon the ruling reveal unease whether brandishing is closely related to terrorist threats, and the People note on appeal that the gravamen of a terrorist threat is the threat, not whether the threat is accompanied by weapon use. A better way of framing the question may be whether enhancements are relevant for lesser-related-offense instruction, something not allowed for lesser-included-offense instruction (People v. Toro (1989) 47 Cal.3d 966, 972, 254 Cal.Rptr. 811, 766 P.2d 577). We also note a federal high court decision recently holding there is no federal due process right to lesser-related-offense instruction, even in a capital case. (Hopkins v. Reeves (1998) 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76.) But in any event, there is another ground for sustaining the ruling.