Does the court have to add an instruction to the jury that, in the event the jury found defendant guilty of the lesser included charge of involuntary manslaughter, it should also consider whether he personally used an assault weapon or firearm?

manslaughter. Thus, defense counsel did not object to the court's adding an instruction to the jury that, in the event the jury found defendant guilty of the lesser included charge of involuntary manslaughter, it should also consider whether he personally used an assault weapon or firearm, and the court so instructed. "[I]t has been uniformly held that where an information is amended at trial to charge an additional offense, and the defendant neither objects nor moves for a continuance, an objection based on lack of notice may not be raised on appeal. [Citations.] There is no difference in principle between adding a new offense at trial by amending the information and adding the same charge by verdict forms and jury instructions. [Citation.] The risk of unfair surprise to the defendant is the same in either case, as is the potential benefit to the defendant of affording the jury a wider range of verdict options. To prevent speculation on a favorable verdict, a reasonable and fair rule in both situations is that a failure to promptly object will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice." (People v. Toro (1989) 47 Cal.3d 966, 976, fn. omitted, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) Therefore, defendant has forfeited his appellate claim.⁴

Even if defense counsel had objected, there would be no basis to set aside the enhancement on appeal. When a specific enhancement is alleged in an information, the defendant is put on notice that his conduct could also be in violation of an uncharged enhancement that '' 'would be applicable in any case' " in which the charged enhancement applies. (See People v. Fialho (2014) 229 Cal.App.4th 1389, 1395-1397 (Fialho).)⁵

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