Moore

Appellant was convicted after a jury trial of violating Penal Code section 12021, which proscribes the possession of a firearm by persons previously convicted of a felony. He contends the trial court erred when it refused to instruct the jury on what he contends is a lesser related offense, violation of section 417.2, which outlaws the brandishing of a replica firearm in a manner which induces fear of bodily harm in the victim. He also contends his trial counsel rendered ineffective assistance in improperly presenting an argument for this proposed instruction to the court. We reject these contentions because section 417.2 is not a lesser related offense which the trial court would be required to instruct upon in a prosecution for violation of section 12021.

I. Facts and Procedural History

Appellant and appellant’s brother were involved in a custody dispute which concerned appellant’s young niece. In connection with the dispute, they paid a call on a certain house in Richmond and asked if the niece was there. They were told she wasn’t and were asked to leave. Appellant was overheard uttering death threats, epithets, and obscenities while appellant’s brother tried to calm…