California, United States of America
The following excerpt is from People v. Zapata, B217883 (Cal. App. 2011):
Neder v. United States (1999) 527 U.S. 1, 18-19 and People v. Flood (1998) 18 Cal.4th 470 do not support a contrary conclusion. In both cases, the omitted element was "uncontested and supported by overwhelming evidence" (Neder v. United States, supra, at p. 17; see People v. Flood, supra, at p. 475 [jury told that element of offense was a given]), and the failure to instruct on that element was therefore harmless error. It is not harmless error here, where evidence of the omitted element is not only not uncontroverted, it is nonexistent.