What is the test for a jury to convict a defendant of attempted rape of an intoxicated person?

22) ["Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states" such as "purpose, intent, [or] knowledge" except such evidence "is admissible . . . on the issue of whether or not the defendant actually formed a required specific intent"]; People v. Stanley (1992) 6 Cal.App.4th 700, 706 [7 Cal.Rptr.2d 881] [voluntary intoxication cannot be used to support a defense to rape based upon a reasonable mistake of fact].)

In short, for a jury to find defendant guilty of attempted rape of an intoxicated person, the prosecution must prove an intent above, beyond, and apart from the mental state required for the completed crime. The facts of this case underscore the point. Throughout, defendant claimed he believed Doe consented to having intercourse and he had no intent of having sex against her will. If a jury had credited this assertion and found defendant did not have the requisite specific intent, it would have had to acquit him of attempted rape, regardless of the objective unreasonableness of his belief. That would not, however, preclude a conviction of actual rape. As to the completed crime, defendant's subjective belief was beside the pointif, as the jury found, he should have known the victim was incapable of freely giving consent. ( 261, subd. (a)(3); see also People v. Williams (1992) 4 Cal.4th 354, 361 [14 Cal.Rptr.2d 441, 841 P.2d 961] [mistaken belief in consent must be objectively reasonable to negate mental state required for completed rape].) In other words, because of the significantly different intent requirements, a not guilty verdict on attempted rape of an intoxicated person is not inherently irreconcilable with a guilty verdict on actual rape of an intoxicated person.