Jerome

In this appeal we consider the doctrine of legal impossibility in a case where the defendant was convicted of the crime of “oral copulation with another person who is under 14 years of age” but the victim was 15 years old. (Pen. Code, § 288a, subd. (c).)

Defendant entered a negotiated plea of guilty before the magistrate to charges of forcible rape (§ 261, subd. (2)), and oral copulation of a minor under 14 (§ 288a, subd. (c)). He also admitted the allegation that he previously had been convicted of forcible rape (§ 667.6, subd. (a)). He was certified to the superior court for sentencing and that court imposed a term of 21 years in state prison. Defendant appeals, contending that the court erroneously imposed judgment on his plea of guilty to the oral copulation count because the victim was 15 years old. He also contends that there were several sentencing errors. We affirm the enhanced rape conviction but agree with defendant’s claim that the conviction on the oral copulation count cannot stand; accordingly, as to that count, we shall modify the judgment and remand for resentencing.

On January 16, 1983, defendant, who was then 25 years old, approached the victim,…