(dissenting).
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 offense in the crime of burglary.” The court held that since “loitering” or “prowling” did not include, by definition, an element of forcible entry, and because forcible entry was actually involved in the facts of Gomez, that, “the defendant’s position that an instruction on trespass being a lesser-included offense in the crime of burglary must be rejected.” This indicates to me that if the evidence in a burglary case did not involve forcible entry that it would be a lesser-included offense since burglary does not require forcible entry as an element of that crime. State v. Miller, 108 Ariz. 441, 501 P.2d 383 (1972).
Furthermore, in Hatten, the trial court refused to instruct the jury on forcible trespass (A.R.S. § 13-711) as a lesser-included offense to a charge of burglary, and the Supreme Court agreed stating:
“In previous cases this Court has held that:
‘ * * * instructions on lesser offenses are justified only when there is evidence upon which the jury could convict of a lesser offense and, at the same time, find that the state had failed to prove an element of the greater crime. * * * In other words, the state of the record must not be such that defendant can only be guilty of the crime charged or not at all.’ State v. Schroeder, 95 Ariz. 255, 259, 389 P.2d 255, 257 (1964). U.S. Cert. Denied, 379 U.S. 939, 85 S.Ct. 347, 13 L.Ed.2d 350 (1964).
“In the instant case we cannot say that the jury could have convicted the defendant of forcible trespass and, at the same time, found that the state had failed to prove an element of burglary. If the jury believed the defendant’s testimony, which they obviously did not, their proper verdict would have been an acquittal, not a conviction of a lesser charge. Therefore, we hold that the trial judge was correct in denying the requested instruction.” 106 Ariz. at 241, 474 P.2d at 832.
See also State v. Schroeder, 95 Ariz. 255, 389 P.2d 255 (1964).
In the case at bar the record does, in my opinion, comport with the test in Hatten. The juvenile took the stand in his own defense and testified as follows in response to the question of what happened:
“A Well, we was walking along and then Ralph asked us, did we want to go break in this house. And we said: Well, we ain’t going to break in; we ain’t going to take nothing; we are just going to walk in, you know.
“And Ralph said, Well, I will take something,’ and he went inside. Cory, *546he stayed outside. I went inside and then a purse was laying on the thing and then Ralph picked it up and took all the money out, and then he told me to come in and help him check the house over; and I said, ‘No, I’m going back out.’
“Then he called chicken and then I went back out, and then he started checking the house over. He went until he was through.”
He further testified that this took over ten minutes of time.
The police officer testified that the juvenile admitted to him that he went into the house for money but didn’t take any, and his own counsel conceded in his closing argument that the juvenile wrongfully went into the house. After all of the evidence was in, the court as trier of fact, said:
“THE COURT: I think clearly there was a trespass and I think I perhaps stretch reasonable doubt when I say there was not a burglary here, as I think that is probably what the evidence discloses. But for reasons which I deem sufficient and wise, there will not be an adjudication of burglary. But I do find that there was a trespass and under the facts in this case, a lesser included offense. Accordingly, the Court finds and adjudicates [the juvenile] delinquent for that trespass.”
Here, in effect, the court did instruct the trier of fact, himself, that trespass was a lesser-included offense to the crime of burglary under these facts.
The majority opinion presents a clear picture of a rather murky scene. The “lesser-included offense” is not a clear legal doctrine but is one handicapped by conflicting opinions and inferences that can be drawn from those opinions. It is in essence a court-created doctrine that exists when the Supreme Court says that it exists. In Gomez v. Hatten the Supreme Court did not say that criminal trespass was not a lesser-included offense to burglary. That would have been the simple answer to the question raised. I can therefore only assume from their analysis that it can be under a proper factual situation — such as the case at bar. I would affirm the July 5, 1973 order.