Can a defendant be prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing?

A defendant cannot "constitutionally be prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing . . . ." (People v. Burnett (1999) 71 Cal.App.4th 151, 181; see also 1009 [an information "cannot be amended . . . so as to charge an offense not shown by the evidence taken at the preliminary examination"].) Appellant argues that, based on the prosecutor's closing argument, the jury could have convicted him of committing a lewd act by digitally penetrating K.S.'s vagina. The People concede, "At the preliminary hearing, there was no evidence of digital presentation presented." Appellant contends that "one of [his] lewd act convictions [that could have been] based on . . . digital penetration [must be reversed] because there was no preliminary hearing evidence of any such penetration of [K.S.'s] vagina."

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