In defendant’s trial for rape of an intoxicated person, trial court did not err in refusing to instruct on defendant’s reasonable-belief-of-capacity-to-consent theory because the evidence did not support it. At a party that Braslaw and his roommates hosted, Doe became so intoxicated that she vomited. Her friend described her as “completely gone.” Doe’s friend and Braslaw cleaned her off in a shower and put into a spare bed. Sometime later, Braslaw got into the bed and penetrated Doe with his penis. When Doe realized what was happening, she yelled “No” and Braslaw stopped. A jury found him guilty of raping an intoxicated person (Pen. Code, § 261, subd. (a)(3)). Braslaw appealed, arguing that the trial court had erred by failing to instruct the jury with the optional language in CALCRIM No. 1002 that states a defendant is not guilty of raping an intoxicated person if he actually and reasonably believed that the alleged victim was capable of consenting to intercourse. Held: Affirmed. As the trial court concluded, the evidence was insufficient to support instructing the jury with the optional language. Even if Doe had consented to intercourse, as Braslaw argued she had, there was no evidence that Braslaw actually or reasonably believed that Doe was capable of giving consent despite her intoxication. “It is a reasonable belief in the victim’s capacity, not consent, that provides a defense to rape of an intoxicated person.” Even if there was an evidentiary basis for instructing the jury with the optional language, the trial court’s decision to omit it was not prejudicial. The jury necessarily resolved the issue against Braslaw because the fourth element of rape of an intoxicated person is that the defendant “knew or reasonably should have known that the alleged victim was unable to resist due to her intoxication.” By finding that element true, the jury necessarily found any belief by Braslaw that Doe had the capacity to consent was unreasonable.

Attempted rape of an intoxicated person is not a lesser included offense of rape of an intoxicated person. Braslaw also argued that the trial court erred by failing to instruct, sua sponte, on attempted rape of an intoxicated person as a lesser included offense. The appellate court disagreed. Under the elements test, attempted rape of an intoxicated person is not a lesser included offense of rape of an intoxicated person. Rape of an intoxicated person is a general intent crime that requires both (1) intent to engage in sexual intercourse and (2) either actual knowledge of the intoxicated victim’s incapacity or negligent belief the victim had the capacity to consent. Attempted rape of an intoxicated person is a specific intent crime that requires proof that the defendant intended to have sexual intercourse with a person incapacitated by intoxication. Because attempt contains an additional specific intent element that rape of an intoxicated person does not, it is not a lesser included offense. Accordingly, the trial court had no duty to sua sponte instruct on attempt. (See People v. Bailey (2012) 54 Cal.4th 740.)