White

Statement of the Case

Appellant was convicted by jury verdict of a single count of violation of Penal Code section 289, subdivision (a), penetration of the anal opening by a foreign object accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury for the purpose of sexual arousal, gratification or abuse. He was acquitted of a second count charging him with violation of Penal Code section 273a, subdivision (1), child endangerment. After his motion for a new trial was denied, appellant was sentenced to the aggravated term of eight years. He appeals contending (1) that the evidence of force, violence, duress, or menace within the contemplation of the statute was insufficient to support the verdict, (2) that the trial court erred in denying his motion for a new trial since the jury had been misled into believing that section 289 could be violated without proof that appellant entertained a sexual intent, and (3) that a purported variance between the charging language in the information and the prosecution’s theory at the time of trial deprived him of notice of the charges. We find these contentions to be without…