In a sexual assault case, what is the test for a jury to convict defendant of rape and aggravated kidnapping?

Finally, in any event, the evidence of defendant's involvement in the sexual offenses was overwhelming, as already detailed. Defendant aided and abetted count 2, rape of an unconscious person, by obtaining condoms and holding the victim during the assault. The evidence also established that he was the sole perpetrator of count 3, penetration of an unconscious victim. Under these circumstances, there was no reasonable likelihood of a different verdict in the absence of the challenged instruction. The error, if any, was harmless. (See People v. Olguin, supra, 31 Cal.App.4th at p. 1378.)

Defendant contends that the trial court erred in failing to instruct the jury, sua sponte, that a reasonable yet mistaken belief the victim consented to have sexual intercourse was a defense to the charges of rape and aggravated kidnapping. (People v. Mayberry (1975) 15 Cal.3d 143.) No evidence was introduced to support giving such an instruction.