Ogunmola

Olufemi Babatunde Ogunmola appeals from the judgment entered following a court trial that resulted in his conviction of two counts of rape (Pen. Code, § 261, subd. (4)). He was sentenced to state prison for the upper base term of eight years on count I, and a consecutive term of one-third the middle base term, or two years, on count II. He contends (1) the evidence is insufficient to support his convictions, and (2) the trial court erred in imposing the 10-year state prison sentence. We find the evidence sufficient, the sentence excessive, modify the judgment accordingly and affirm.

Issues

Defendant, an obstetrician and gynecologist, was convicted of raping two of his patients in the course of gynecological exminations. He argues the evidence failed to show the victims were unconscious of the nature of the act at the moment of penetration, and, therefore, his conduct did not come within the provisions of subdivision (4) of Penal Code section 261, which defines rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator .... Where a person is at the time unconscious of the nature of the act, and this is known to the accused.”…