(concurring and dissenting):
I concur in the holding that A.R.S. 13-611.B. does not violate Gray’s right to equal protection. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), is squarely in point. I cannot agree, however, that Gray’s conviction of “statutory” rape under § 13-611.B. violated his right to due process.
A.R.S. § 13-611, as in effect when Gray was charged and convicted, provided,. in pertinent part:
Definition: Degrees.
A. Rape in the first degree is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under any of the following circumstances:
2. Where the female resists, but her resistance is overcome by force or violence.
3. Where the female is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution. . .
B. Rape in the second degree is an act of sexual intercourse with a female not the wife of the perpetrator, under the age of eighteen years, under circumstances not amounting to rape in the first degree.
Gray was charged with violating § 13-611.-A. Subsection B. was not mentioned in the information.
Gray’s position is that “statutory” rape (subsec. B.) is not an offense necessarily included in forcible rape (subsec. A.), because a fact — that the victim is under the age of 18 — is not an element of forcible rape, but is an element of “statutory” rape. Therefore, he says, charging him with forcible rape does not tell him that he can be convicted, under that charge, of statutory rape. This is essentially the position adopted in Judge McNichols’ opinion.
However, it was settled law in Arizona at the time Gray was charged that there was only one crime of rape: “§ 13-611 defining rape did not create separate crimes, but ‘merely set this particular form of rape [Subsection B, second degree] apart from the other five [Subsection A, first degree] for the obvious purpose of allowing a different penalty to be assessed for its violation.’ ” State v. Klem, 1972, 108 Ariz. 349, 350, 498 P.2d 216, 217 (citations omitted). The Arizona Supreme Court held that “[w]hile it is, of course, possible that an accused may be taken by surprise if an information charges him under one subsection of A.R.S. § 13-611 and the proof offered brings the offense under another subsection, if the accused has received notice of such a possibility he is not prejudiced thereby.” Id.; State v. Carrico, 1977, 116 Ariz. 547, 548, 570 P.2d 489, 490; State v. Gray, 1979, 122 Ariz. 445, 448, 595 P.2d at 992-993. We are, of course, bound by the Arizona court’s construction of Arizona’s statute.
I see no deprivation of due process in the position taken by the Arizona court. Where the lesser offense is necessarily included in the greater, proof of the greater also proves the lesser. It is then not necessary to charge the lesser expressly because the law which defines the elements of the offenses tells the defendant that he can be found guilty of the lesser upon proof of the elements of the greater. I know of no case that holds that it must be shown that the particular defendant actually knew that he could be convicted of the lesser offense. The lesser offense rule is one of law; notice to the defendant that the greater charged offense includes the lesser is presumed, because the defendant is presumed to know the law, and so due process is satisfied.
*576The case at bar is analogous. Proof of forcible rape necessarily proves every element of “statutory” rape, save one — the victim’s age. Thus, a charge of forcible rape necessarily charges every element of “statutory” rape, except the victim’s age. And if the defendant knows, when he goes to trial, that the victim may be under eighteen, he is as well off, from the standpoint of notice, that is, of due process, as is one who may be convicted of a lesser included uncharged offense. It will not do to say that he does not know whether the state will try to prove the victim’s age. Her age is relevant in a forcible rape case, because it is at least arguable that a young girl can be more easily forced or frightened into submission than a mature woman can be. All that the Arizona court has added to the necessarily included offense doctrine is a requirement that the defendant actually know, rather than be presumed to know, that the victim may be proved to be under age. I see nothing unconstitutional, no deprivation of due process, in that holding.
The record supports the Arizona court’s conclusion that Gray had knowledge of the possibility that the proof would bring the offense under subsection B. Gray argues that he first realized that he might be convicted of second degree or statutory rape under A.R.S. § 13-611.B. at an in-chambers conference on jury instructions near the close of his trial, and the majority accepts that argument. The record, however, does not support it. On the contrary, the record shows that Gray had the requisite knowledge from the beginning. I do not rely on imputing notice to Gray simply because of the settled state of Arizona law on this matter, by analogy to the “necessarily included offense” rule. The victim testified at the preliminary hearing and then at trial that she was seventeen years old. At the start of the trial and before the selection of a jury, and just after the trial judge stated that “Count I is Rape First Degree and Count II Lewd and Lascivious acts,” Vol. E, p. 8, Gray made the following statement to the court: “There is a point of law I’d like entered, Your Honor, and that is that the Supreme Court of the United States ruling involving the life of a human being, which states that you are legally alive when you are in your mother’s womb after, I believe, it’s 16 weeks, Your Honor.” Vol. E, p. 9. The point of this imaginative argument, as was made clear in Gray’s later objection to the second degree instruction to the jury, was to fend off a conviction for second degree rape. Clearly, Gray was aware before the trial began that he faced the possibility of such a conviction.
Moreover, in the course of trial and before the in-chambers conference in which Gray now claims that he first learned of the second degree rape charge, Gray probed the matter of the victim’s age. In his cross-examination of the victim’s sister, he asked the following:
Q. And let’s see. This is ’78. Next year, ’79. [The victim] would be 20 years old, wouldn’t she?
A. No.
Q. She won’t?
A. 19.
Q. She was born in ’59. in ’79, she’ll be 20? Next year
A. Yes, yes. I’m sorry. Vol. F. p. 157.
At the conference in chambers on the jury instructions, Gray’s advisory counsel objected to the state’s request for an instruction on second degree rape:
We object to this instruction on two grounds. First of all, I realize that Arizona state law allows you to instruct the jury on second degree rape under circumstances. And I am not convinced that this is consistent with the United States Constitution, however, because I do not feel that, going by the standard definition of what a lesser included offense is, that rape second degree is really a lesser included offense of first degree rape....
[I]n this case the defendant has not been given notice that he has to defend' against second degree rape, because the information simply charges first degree rape.
*577Number Two, Mr. Gray would like to object to it because he takes the position that based on the United States Supreme Court ruling in the abortion ease, that a person’s age is determined from the point at which the fetus becomes viable, which I believe the United States Supreme Court said is five months, which is to say that you would add another four months normally to the age of the person, and that would throw this victim over the age of 18. Yol. H, p. 83-84.
Finally, it is apparent from the objection to the second degree instruction made by Gray’s advisory counsel that Gray’s lawyer understood that Arizona law permitted a second degree instruction from the moment the victim testified to her age at the preliminary hearing.
In short, statements made by Gray’s advisory counsel and by Gray both before and during trial make clear that Gray had actual notice of the second degree rape charge. Gray had “notice and meaningful opportunity to defend,” Jackson v. Virginia, 1979, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 and I can find no violation of due process in these circumstances. See Goodloe v. Parratt, 8 Cir., 1979, 605 F.2d 1041, 1046 (“If a defendant is actually notified of the charge due process notice requirements may be met, even if the information is deficient.”) Cf. United States v. United Mine Workers of America, 1942, 330 U.S. 258, 295-300, 67 S.Ct. 677, 696-699, 91 L.Ed. 884 (actual notice of criminal contempt suffices).
I would affirm.