What is the test for false imprisonment in a sexual assault case?

^4. At one point, defense counsel referred to "incidents" plural in which Doe 2 "would lie about certain things." This was not sufficiently specific to constitute an offer of proof that there was actually more than one such incident. (See People v. Schmies (1996) 44 Cal.App.4th 38, 53 ["an offer of proof must be specific"].)

^5. Doe 1 testified that they "probably w[ere] in the kitchen area, but I don't remember."

^6. In the interest of completeness, we note that Doe 1 did testify:

"Q. Did you want him to pick you up and take you in the back?

"A. Of course not."

However, the fact that she did not want him to does not change the fact that, once he did so, she consented. In any event, even assuming this was sufficient evidence of lack of consent, given her admissions that she was laughing and unafraid, there would be insufficient evidence that defendant knew that she did not consent. (See People v. Mayberry (1975) 15 Cal.3d 143, 153-158 [defendant is not guilty of rape if he is under a mistake of fact as to whether victim consents].) It would also raise an issue as to whether the trial court should at least have instructed on misdemeanor false imprisonment.