In People v. Sojka (2011) 196 Cal.App.4th 733 the jury returned a guilty verdict on the charge of attempted forcible rape, a not guilty verdict on a count of attempted forcible sexual penetration, and was unable to reach verdicts on several other charges. (Id. at p. 736.) The defendant argued the trial court erred by failing to give a Mayberry instruction for the attempted rape charge. (Id. at p. 735.) The appellate court reversed the judgment. The appellate court rejected the assertions by the Attorney General that (1) because the victim and the defendant in their testimony gave very different accounts of the sexual activity and the victim was clear that she at all times resisted the defendant, there was no basis for concluding the victim's conduct was equivocal, and (2) because the defendant had argued "he stopped his advances when the victim rejected his attempt to have intercourse there was no evidence that he misinterpreted the victim's conduct." (Sojka, supra, 196 Cal.App.4th at p. 737.) In concluding there was instructional error due to the failure to give a Mayberry instruction, the court held: "We disagree with the Attorney General's first premise because one can only conclude the victim was unequivocally resistant to intercourse by completely disregarding Sojka's testimony. That is not the law. The cases where courts have disregarded a defendant's testimony about a victim's behavior are limited to circumstances where the defendant's version would prove actual, not mistaken belief in, consent. . ... Neither Sojka's testimony nor the victim's provides reasonable support for a theory based upon her actual consent to sexual intercourse. ... The Attorney General's second point is that because he stopped, the Attorney General says Sojka could not have been mistaken about the victim's consent. But it is the events that led to the victim's rejection of Sojka's advance, not her rejection or his cessation, that are material to his possible mistaken belief. Just because he stopped when she said no to intercourse does not make all that went before irrelevant or immaterial to the issue of consent." (Ibid.)