In Re the Appeal in Maricopa County, Juvenile Action No. J-75755

I dissent from the majority opinion because it is my opinion that there are fact situations where criminal trespass (A.R.S. § 13-712(9)) can be a lesser-included offense to a charge of burglary (A.R.S. § 13-302) and that this is one. This opinion is based upon comments contained in two Arizona Supreme Court opinions: State v. Gomez, 105 Ariz. 424, 466 P.2d 378 (1970), and State v. Hatten, 106 Ariz. 239, 474 P.2d 830 (1970).

In Gomez error was claimed on the basis of the trial court’s refusal to “instruct the jury that criminal trespass as defined in § 13-712(9), A.R.S., is a lesser-included…