Can a defendant be found guilty of the crime of attempted criminal threat when there is insufficient evidence that the victim sustained sustained fear of his own safety?

In People v. Breverman (1998) 19 Cal.4th 142 (Breverman) our high court held that the trial court must instruct sua sponte regarding "all theories of a lesser included offense which find substantial support in the evidence." (Id. at p. 162.) "Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.] '"Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." [Citation.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)

Page 27

A defendant may be found guilty of the offense of attempted criminal threats when the defendant, "acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat." (People v. Toledo, supra, 26 Cal.4th at p. 231; in accord, People v. Chandler (2014) 60 Cal.4th 508, 525.) Unlike the crime of criminal threats, the attempt crime does not require evidence that the victim actually sustained fear for his own safety.