What is the standard of review applied to an allegation of an attempted criminal threat?

"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, '"that is, evidence that a reasonable jury could find persuasive"' [citation], which, if accepted, '"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citation]." (People v. Cole (2004) 33 Cal.4th 1158, 1218.) It does not mean "'any evidence, no matter how weak.'" (People v. Breverman (1998) 19 Cal.4th 142, 162.)

As relevant here, a defendant is guilty of attempting to make a criminal threat when, "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 . . . ." (People v. Toledo (2001) 26 Cal.4th 221, 231.) The trial court was thus required to instruct the jury regarding attempted criminal threat only if substantial evidence would support a finding that Love did not experience sustained fear.

Fear is "sustained" when it lasts "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

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