People v. Muis

Opinion

LILLIE, Acting P. J.

A jury found defendant guilty of trespass (§ 602.5, Pen. Code) a misdemeanor, a lesser but necessarily included offense in burglary (§ 459, Pen. Code) charged in count I, and not guilty of grand theft (count II). He appeals from the judgment (order granting probation).

Appellant concedes that the judgment is supported by substantial evidence but contends that a violation of section 602.5, Penal Code is not a lesser necessarily included offense in a violation of section 459, and the trial court erred in instructing the jury to that effect (CALJIC No. 17.10. ) He…