When will a jury overturn a conviction for sexual assault based on evidence at the preliminary hearing?

"Since [defendant] could not constitutionally be prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing, defense counsel should have objected or taken some action to protect [defendant's] rights, at least when it became clear the jury was going to be asked to convict on the basis of . . . the incident shown by the preliminary hearing evidence [and] the incident not addressed at the preliminary hearing." (People v. Burnett, supra, 71 Cal.App.4th at p. 181.)

Trial counsel had no tactical reason for failing to raise this point. He stated in his declaration that he simply forgot that the preliminary hearing focused only on evidence relating to count 4, the oral copulation at the apartment complex. Defendant was clearly prejudiced by this omission: he was convicted for an offense that should not have been prosecuted at trial. We are compelled to conclude that defendant did not receive the effective assistance of counsel, necessitating the reversal of defendant's conviction on count 5. (See People v. Peyton, supra, 176 Cal.App.4th at pp. 654-655.)