What is the test for determining whether a defendant was guilty only of battery but not rape?

Based on these facts, no reasonable jury could conclude defendant was guilty only of battery. Although defendant maintains his penis never penetrated the victim's vagina, his admission it may have "slipped" and "bumped" her vagina implies it at least penetrated the entrance of it. "'"[P]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina."' [Citation.]" (People v. Rouse (2012) 203 Cal.App.4th 1246, 1276.) Whether the jury believed the victim or defendant, there was no middle ground in the evidence that could have permitted a reasonable jury to conclude that battery, but not rape, was committed. Nor was there substantial evidence that any contact between defendant and the victim was unrelated to a sexual assault. Rather, "the evidence here establishing . . . a battery as a matter of law must also establish the commission of rape. Accordingly, if [defendant] is guilty of battery, he is also guilty of the greater offense. It is not error to refuse to instruct the jury of their right to convict of lesser offenses included in the offense charged when the evidence shows that the defendant, if guilty at all, is also guilty of the crime charged. [Citations.]" (People v. Young (1970) 9 Cal.App.3d 106, 109.) Consequently, the trial

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