I concur with the majority that the conviction should be affirmed and the matter remanded for resentencing. But, I respectfully dissent from the majority’s conclusion that the evidence of past crimes, in the context of the case at bench, is not admissible.
A “common scheme or plan,” I fully agree, is nothing but a “subordinate objective of proof, whose relevance depends on some other actual issue, such as mistaken identity or innocent intent.” (People v. Covert (1967) 249 Cal.App.2d 81, 84 [57 Cal.Rptr. 220].) Since there is no issue of identity, “it is immaterial whether the modus operand! of the charged crime was similar to that of the uncharged offenses.” (Maj. opn., ante, at p. 89.) The “common plan or scheme,” it appears, is a euphemism for “disposition.”
I part company with the majority on the issue of intent. The majority explains that “there is nothing equivocal or ambiguous about defendant’s intent. Whichever version of the facts is believed defendant intended intercourse.” Though factually correct, the intent to have intercourse is not the *93sole requisite intent for the charged crime. It is, in addition, the intent to accomplish intercourse by means of force or threat.
Penal Code section 261 provides, “Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances; ... (2) Where she resists, but her resistance is overcome by force or violence; [or] (3) Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution. . . .’’Of course, there is no rape if a female of sufficient capacity consents to sexual intercourse. (People v. Mayberry (1975) 15 Cal.3d 143, 154 [125 Cal.Rptr. 745, 542 P.2d 1337]; 1 Witkin, Cal. Crimes (1963) § 173, p. 165, § 288, pp. 265-266.) Penal Code section 26 adds that one is incapable of committing a crime if “[the] [p]ersons who committed the act [did so] . . . under an ignorance or mistake of fact, which disproved any criminal intent.”
Rape is not a crime of specific intent; it requires nothing more than general criminal intent. (People v. Thornton (1974) 11 Cal.3d 738, 766 [114 Cal.Rptr. 467, 523 P.2d 267].) Penal Code section 20 provides, “In every crime . . . there must exist a union, or joint operation of act and intent, or criminal negligence.” Thus, “intent” as defined by section 20 means “wrongful intent.” (People v. Mayberry, supra, at p. 154; see, People v. Vogel (1956) 46 Cal.2d 798, 801, fn. 2 [299 P.2d 850].) “So basic is this requirement [of a union of act and wrongful intent] that it is an invariable element of every crime unless excluded expressly or by necessary implication.” (People v. Vogel, supra, at p. 801.) The necessary “wrongful intent,” though, is merely the intention to do the interdicted act. (People v. Dillon (1926) 199 Cal. 1 [248 P. 230]; People v. Wade (1945) 71 Cal.App.2d 646 [163 P.2d 59].) But the act for which an intent is needed under Penal Code section 261 is not only the act of intercourse; it is, in addition, the acts of overcoming resistance by “force or violence” or “threats of great and immediate bodily harm.”
Defendant’s assertion that he reasonably believed that the prosecutrix consented amounts to a denial that he intended to use force or threats. As the Court of Appeal said in People v. Jackson (1980) 110 Cal.App.3d 560, 566 [167 Cal.Rptr. 915], the “[defendant's trial theory, that the victim had consented to the sexual acts, was tantamount to a denial that he had intended to achieve oral copulation and sexual intercourse by force or intimidation.”
Penal Code section 261, subdivisions (2) and (3) (rape by means of force or threat) and section 207 (kidnaping) “neither expressly nor by necessary implication negate the continuing requirement that there be a union of act and wrongful intent. The severe penalties imposed for these offenses . . . *94and the serious loss of reputation following conviction make it extremely unlikely that the Legislature intended to exclude as to those offenses the element of wrongful intent. If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him and to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite under Penal Code section 20 to a conviction of either kidnaping ... or rape by means of force or threat. ” (People v. Mayberry, supra, at p. 155.) (Italics added.)
In short, though rape is a crime in which lack of consent is an essential element (see Witkin, Cal. Crimes (1963) § 172, p. 164), even absent actual consent, a reasonable belief of consent will negate intent. (See generally, Mayberry, supra, at p. 156.) In Mayberry defendants claimed that the trial court erred in refusing to give instructions directing the jury to acquit defendants of rape and kidnaping “if the jury had a reasonable doubt as to whether . . . [defendant] reasonably and genuinely believed that . . . [the prosecutrix] freely consented to her movement. . . [with him] and to sexual intercourse with him.” (Mayberry, at p. 153.) This court, by unanimous decision, concluded that if the defendant “raised a reasonable doubt as to whether he had a [bona fide and reasonable belief that the prosecutrix consented to the sexual intercourse]” (People v. Mayberry, supra, at p. 157) then there is an issue as to intent.1
In People v. Hampton (1981) 118 Cal.App.3d 324, 329 [173 Cal.Rptr. 268], elaborating on Mayberry, the Court of Appeal concluded that May-berry compelled the conclusion that a reasonable doubt could be raised by the mere testimony of the defendant that the prosecutrix consented. Since defendant asserts just that consent, his intent is at issue.
I turn to the question of whether “the prior offense was sufficiently similar in its commission to the charged offense to indicate that the defendant probably harbored the same intent in both instances.” (People v. Jackson (1980) 110 Cal.App.3d 560, 566 [167 Cal.Rptr. 915].) The Court of Appeal-when this case was before that court—aptly expressed my view that: “the uncharged offenses in this instance do not bear even minor discrepancies with the charged offenses. The rape and oral copulation of a young woman in 1976 were perpetrated in a remarkably unique manner, singularly similar to the 1980 attack. The similarity is sufficient to be described as a mirror *95image of the current offense. The same is true of the 1977 uncharged offense. The method of contact, the perpetration of the acts, and the physical force used are uncommonly similar to each other.” As such, it is reasonable to say that the other offenses are logically relevant to prove defendant’s intent, without regard to disposition, in the instant case.
The majority, finding no ultimate fact in issue, never reached the question of whether section 352 of the Evidence Code required exclusion of the evidence in spite of its relevance.
“Evidence of other crimes is not automatically admissible under subdivision (b) [of § 1101] whenever it is offered to prove an intermediate fact other than disposition. Subdivision (b) merely clarifies the fact that subdivision (a) ‘does not prohibit’ the admission of such evidence when it is offered to prove a fact other than disposition. (Cal. Law Revision Com. com. to Evid. Code, § 1101.) The evidence of other crimes must still satisfy the rules of admissibility codified in section[] . . . 352.” (People v. Thompson (1980) 27 Cal.3d 303, 317, fn. 17 [165 Cal.Rptr. 289, 611 P.2d 883].) Under section 352 the probative value of this evidence must outweigh its prejudicial effect. (See People v. Guerrero (1976) 16 Cal.3d 719, 727 [129 Cal.Rptr. 166, 548 P.2d 366].) Moreover, since “‘substantial prejudicial effect [is] inherent in [such] evidence’ [citation omitted] uncharged offenses are admissible only if they have substantial probative value. If there is any doubt the evidence should be excluded.” (People v. Thompson, supra, at p. 318 quoting People v. Kelly, supra, at p. 239.)
“The evidence is probative if it is material, relevant, and necessary. ‘[H]ow much “probative value” proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality) and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity). (People v. Delgado (1973) 32 Cal.App.3d 242, 249 [108 Cal.Rptr. 399] overruled on another point in People v. Rist (1976) 16 Cal.3d 211, 221 [127 Cal.Rptr. 457, 545 P.2d 833].)’” (People v. Thompson, supra, at p. 318, fn. 20.)
First, there is a high degree of relevance. As was true in Thompson, “[t]he theories of relevance advanced in this case are premised on the contention that if a person acts similarly in similar situations, he probably harbors the same intent in each instance.” (Thompson, supra, at p. 319.) As I have noted, the evidence of other crimes is almost identical in its execution to the present instance. Thus, there is a high degree of relevance.
Second, the evidence must be material. In order for the evidence to be material, the fact to be proved must be an ultimate fact that is actually in *96issue. (Thompson, supra, at p. 315.) Once again, as I have already demonstrated, intent is at issue as a consequence of defendant’s assertion that he reasonably believed the prosecutrix consented.
Finally, it must be necessary. If the evidence is “merely cumulative with respect to other evidence which the People may use to prove the same issue,” it should be excluded. (People v. Schader (1969) 71 Cal.2d at pp. 774, 775, fn. omitted [80 Cal.Rptr. 1, 457 P.2d 841].) There is no suggestion that the evidence of past crimes was mere duplication in the instant case. In fact the only other evidence going towards intent was the testimony of the victim which was directly contradicted by defendant’s testimony.
The evidence is, as required, of substantial probative value: it is relevant, material, and necessary. Generally the trial court makes the determination whether evidence is more probative than prejudicial. However, since in the case at bench I agree with the majority that it was harmless error to introduce the evidence, if it was error at all, there is no need to remand.
We recognize that a reasonable belief may negate intent in other circumstances as well. (See People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092] [defendant in statutory rape case had reasonable belief that prosecutrix was 18 years or more in age]; People v. Vogel, supra, [“a [reasonable and] good faith belief that a former wife had obtained a divorce was a valid defense to a charge of bigamy arising out of a second marriage when the first marriage had in fact not been terminated”].)