Is trespass a lesser included crime to burglary under the elements test?

Defendant appropriately concedes that trespass is not a lesser included offense to burglary under the elements test. (People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8 (Birks) ["It appears well settled that trespass is not a lesser necessarily included offense of burglary, because burglary, the entry of specified places with intent to steal or commit a felony [citation], can be perpetrated without committing any form of criminal trespass"]; see also People v. Lohbauer (1981) 29 Cal.3d 364, 369 ["A burglary may be committed by one who has permission to enter a dwelling"].) Nevertheless, he argues that trespass is a lesser included offense to burglary under the accusatory pleading test. We disagree.

Page 5