Can a defendant be found guilty of an attempted criminal threat?

given such an instruction sua sponte because substantial evidence warranted consideration of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.)

Specifically, defendant argues the evidence did not show that Rodriguez experienced "sustained fear" caused by defendant's threat to kill her: ". . . a defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (People v. Toledo (2001) 26 Cal.4th 221, 230231, italics added.)

"Sustained fear" means a period of fear extending beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) When Rodriguez first spoke to the police, she did not mention defendant's threat and she also told the police she was not afraid of defendant but she wanted him to leave her alone. On the other hand, at trial Rodriguez testified that, when defendant threatened to kill her and seized the tomahawk, she was afraid for her life and she believed he meant to strike her,

Page 7