Kobrin

“For if it be not material, then though it be false, yet it is no perjury, because it concemeth not the point in suit . . . ,’’

Since early common law, materiality has been considered an “essential element” of the crime of perjury. (Perkins on Criminal Law (2d ed. 1969) p. 462; Note (1938) 11 So.Cal.L.Rev. 309, fn. 1; see People v. Pierce (1967) 66 Cal.2d 53, 61 [ 56 Cal.Rptr. 817 , 423 P.2d 969 ].) Yet it has until recently remained the general rule that “[t]he question of the materiality of evidence, no matter when or how it may arise, is always one of law for the court, and not of fact for the jury.” (People v. Lem You (1893) 97 Cal. 224, 228 [ 32 P. 11 ]; see, e.g., People v. Jimenez (1992) 11 Cal.App.4th 1611, 1622-1623 [ 15 Cal.Rptr.2d 268 ]; but see State v. Anderson (1992) 127 N.J. 191 [ 603 A.2d 928 ] [determining materiality is jury question under state and federal constitutional law].) Accordingly, “on a trial for perjury, it is the duty of the court to instruct the jury as to what facts would show material testimony.” (People v. Lem You, supra, 97 Cal. at pp. 228-229.)

Here, we must decide whether, despite their hoary credentials, these prescripts comport…

I agree with the majority that we must reverse the judgment of conviction, but, unlike the majority, I would reach this *431 conclusion 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…

I concur in the opinion prepared for the court by Justice Arabian. His analysis is compelling. I join it readily.

I write separately merely to emphasize my view that “omitting to instruct on an element of an offense” is indeed error that is generally “reversible per se” (maj. opn., ante, at p. 428) under the Sixth Amendment to the United States Constitution as made applicable to the states through the due process clause of the Fourteenth Amendment. (E.g., People v. Hansen (1994) 9 Cal.4th 300, 328, fn. 8 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] (conc. & dis. opn. of Mosk, J.); People v. Johnson (1993) 6 Cal.4th 1, 59 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ] (conc. & dis. opn. of Mosk, J.); see, e.g., People v. Wims (1995) 10 Cal.4th 293, 317 [ 41 Cal.Rptr.2d 241 , 895 P.2d 77 ] (conc. & dis. opn. of Mosk, J.); People v. Harris (1994) 9 Cal.4th 407, 451, fn. 3 [ 37 Cal.Rptr.2d 200 , 886 P.2d 1193 ] (conc. & dis. opn. of Mosk, J.).)

"For if it be not material, then though it be false, yet it is no perjury, because it concerneth not the point in suit...." [1]

Since early common law, materiality has been considered an "essential element" of the crime of perjury. (Perkins on Criminal Law (2d ed. 1969) p. 462; Note (1938) 11 So.Cal.L.Rev. 309, fn. 1; see People v. Pierce (1967) 66 Cal.2d 53, 61 [ 56 Cal. Rptr. 817 , 423 P.2d 969 ].) Yet it has until recently remained the general rule that "[t]he question of the materiality of evidence, no matter when or how it may arise, is always one of law for the court, and not of fact for the jury." ( People v. Lem You (1893) 97 Cal. 224, 228 [ 32 P. 11 ]; see, e.g., People v. Jimenez (1992) 11 Cal. App.4th 1611, 1622-1623 [ 15 Cal. Rptr.2d 268 ]; but see State v. Anderson (1992) 127 N.J. 191 [ 603 A.2d 928 ] [determining materiality is jury question under state and federal constitutional law].) Accordingly, "on a trial for perjury, it is the duty of the court to instruct the jury as to what facts would show material testimony." ( People v. Lem You, supra, 97 Cal. at pp. 228-229.)

Here, we must decide whether, despite their hoary credentials, these…