Does the Attorney General have the authority to instruct a jury not to consider evidence of intent to sell?

The cases cited by the Attorney General are inapposite. A situation in which evidence of intent to sell was irrelevant at the time of trial, as is the case here, is fundamentally different than one in which a charge and elements of a crime are clear to the prosecution and defense, and the trial court simply fails to give a jury instruction on one or more of the elements of the crime. In the latter situation, a finding of harmlessness is premised on the notion that "the parties recognized the omitted element was at issue [and] presented all evidence at their command on that issue." (People v. Flood (1998) 18 Cal.4th 470, 506.) The record would be presumptively complete despite the omitted jury instruction. The same cannot be said when a particular element was not a requisite to conviction at the time of trial. The dissimilarity is particularly notable in cases such as this, where the prosecution (a) originally charged a crime that included a "for sale" element, and (b) strategically dismissed that charge before trial due to the complexity of the required evidence and the difficulty the prosecution believed it would

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have explaining the related matters to the jury.