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

" '[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence . . . .' [Citations.] ' "To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1215.) " ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." ' " (Ibid.) We review independently the question of whether the trial court failed to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.)

Attempted criminal threat is a lesser included offense of criminal threat. (People v. Toledo (2001) 26 Cal.4th 221, 230.) "[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person,

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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." (Id. at p. 231.) In these situations, "only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (Ibid.) In determining whether the trial court erred in not giving a lesser included offense instruction we consider whether substantial evidence supports a verdict for the lesser included offense but not the greater offense. (People v. Brothers (2015) 236 Cal.App.4th 24, 29.)

The elements of a section 422 violation are: (1) defendant willfully threatened to commit a crime that would result in death or great bodily injury to another person; (2) he made the threat with the specific intent that it be taken as a threat (whether or not he actually intended to carry out the threat); (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused the person threatened reasonably to be in sustained fear for his or her own safety; and (5) the threatened person's fear was reasonable under the circumstances. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228; see also 422.)