I agree with the majority that we must reverse the judgment of conviction, but, unlike the majority, I would reach this *431conclusion without purporting to decide whether “materiality” is an element of the crime of perjury, because the People’s concession of this point makes it unnecessary to resolve that issue in the present case.
In United States v. Gaudin (1995) 515 U.S._ [132 L.Ed.2d 444, 115 S.Ct. 2310], the United States Supreme Court reviewed the validity of a conviction under 18 United States Code section 1001 for making a material false statement in a matter within the jurisdiction of a federal agency. In that case, the trial court had refused to submit to the jury the question whether the allegedly false statement was material. On appeal, the prosecution conceded that the materiality of the allegedly false statement was an element of the offense (id. at p__[132 L.Ed.2d at p. 450]), but asserted nonetheless that the question of materiality should be decided by the court rather than by the jury. The majority in Gaudin accepted the prosecution’s concession without further discussion or analysis and resolved the case based upon the following logic: “The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.” (United States v. Gaudin, supra, 515 U.S. at p._[132 L.Ed.2d at p. 450].)
In Gaudin, Chief Justice Rehnquist, joined by Justices O’Connor and Breyer, concurred but wrote separately. The Chief Justice stated that “the Government’s concessions have made this case a much easier one than it otherwise might have been” and observed that “[wjhether ‘materiality’ is indeed an element of every offense under 18 USC § 1001 [18 USCS § 1001] is not at all obvious from its text.” (United States v. Gaudin, supra, 515 U.S. _,_[132 L.Ed.2d 444, 459].) Noting that “there is a conflict among the Courts of Appeals” on this question, Chief Justice Rehnquist pointed out that the majority in Gaudin “does not resolve that conflict; rather, it merely assumes that materiality is, in fact, an element” of the charged offense. (Ibid.)
In the present case, as in Gaudin, the prosecution has conceded that “materiality” is an element of the charged offense. But rather than simply accepting that concession, the majority has addressed the issue on its merits, declaring that “this concession accords with the statutory language, its historical antecedents, and relevant decisional law. [Citation.]” (Maj. opn., ante, at p. 426.)
In my view, it is unnecessary and unwise to resolve, in this case, the issue whether “materiality” is an element of the crime of perjury. It is unnecessary because the People have conceded this issue. It is unwise because, due to the *432People’s concession, we have not had the benefit of vigorous briefing and argument of both sides of this important issue. I would simply accept the People’s concession and leave to another day the resolution of whether “materiality” is an element of the crime of perjury.
I also question the majority’s discussion of the harmless error issue. As the majority recognizes, it is unnecessary to decide in this case whether the failure to instruct on an element of an offense is reversible per se or instead is subject to harmless error analysis, because even if we assume, as the People maintain, that such an error may be found harmless in an appropriate case, it is clear that the error was prejudicial in this instance because the materiality question was not clear-cut and the trial court’s error led it to preclude defendant from submitting evidence to the jury on the question of materiality. Because the majority explicitly recognizes that “[i]n light of our findings on this record, we need not decide whether and under what . . . circumstances a reviewing court may determine the omission of instruction on an element was harmless beyond a reasonable doubt” (maj. opn., ante, at p. 428, fn. 8), in my view it is unnecessary (and inconsistent) for the majority nonetheless to include questionable dicta asserting (1) that both this court and the United States Supreme Court strongly have implied that failure to instruct on an element of an offense is reversible per se (see id. at p. 428), and (2) that the circumstances of the present case are “akin” to those in Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078] (see maj. opn., ante, at p. 429 [giving an erroneous instruction on reasonable doubt is reversible per se]).
The failure to instruct on an element of an offense can occur in a variety of circumstances, ranging from a case (such as the present one) in which the trial court erroneously believes that a particular issue is not an element to be decided by the jury, to a case in which the trial court inadvertently fails to instruct the jury on an undisputed element of the offense. (An example of the latter situation would be a prosecution for rape in which the evidence clearly establishes that the defendant engaged in intercourse with the alleged victim, the defendant relies solely upon a defense of consent, and the trial court, while correctly instructing on consent, inadvertently fails to instruct that penetration is an element of the offense.)
Because the majority in the present case properly declines to decide the question whether the failure to instruct on an element of an offense is reversible per se or instead is subject to harmless error analysis—concluding that reversal is required here in any event because “ ‘we cannot say beyond a reasonable doubt that the instruction had no effect on the jury’s verdict on the perjury offense[] ’ ” (maj. opn., ante, at p. 430), I believe the majority errs *433in including the several passages, noted above, that appear to prejudge the issue and to suggest that such an error ultimately should be found to be reversible per se.
Accordingly, although I concur in the judgment, I do not join in the majority opinion.
Lucas, C. J., concurred.