author: FABE, Chief Justice.

text:
    Dewana G. TURNER, Bonita H. Hixson, and Yolanda P. Monroe, on behalf of themselves and all others similarly situated, Petitioners, v. ALASKA COMMUNICATIONS SYSTEMS LONG DISTANCE, INC., and Alaska Communications Systems Group, Inc., Respondents.
    No. S-10692.
    Supreme Court of Alaska.
    Oct. 10, 2003.
    Peter J. Maassen, Ingaldson Maassen, P.C., Anchorage, and Paul Adelman, Law Office of Paul Adelman, Anchorage, for Petitioners.
    Susan Orlansky, Jeffrey M. Feldman, and Ruth Botstein, Feldman & Orlansky, Anchorage, for Respondents.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Petitioners, representing a class suing Alaska Communications Systems Long Distance, Inc. and Alaska Communications Systems Group, Inc. for terminating a widely advertised calling plan, contest a class notification that suggests that the court may hold absent class members liable for defendants' attorney's fees if the class suffers an adverse judgment. We conclude that holding these absent class members liable for attorney's fees upon an adverse judgment will chill class participation and hamper the efficiencies of class litigation. We therefore reverse the order of the superior court approving the disputed language in the class notice.

II. FACTS AND PROCEEDINGS

A. Factual History

In October 2000 Alaska Communications Systems Long Distance, Inc. and Alaska Communications Systems Group, Inc. (collectively ACS) offered and marketed a long distance calling plan that provided unlimited long distance service for a twenty-dollar monthly fee. After the plan attracted thousands of customers, ACS canceled the calling plan in May 2001, citing unexpected high costs, unforeseen regulation requirements, and customer abuses of the plan. ACS did continue to provide a twenty-dollar monthly long distance plan, but that plan was limited to 600 monthly minutes.

B. Procedural History

Dewana G. Turner, Bonita H. Hixson, and Yolanda P. Monroe (collectively Turner), three former subscribers, sued on behalf of the approximately 30,000 subscribers to the plan, claiming, among other things, that ACS's unilateral elimination of the most material element of the long distance contract was a breach, that ACS violated the Alaska Unfair Trade Practices and Consumer Protection Act by making misleading statements about the plan, and that ACS fraudulently concealed material facts, including the company's inability to maintain the plan for anything longer than a promotional period. The superior court certified the class as an Alaska Civil Rule 28(b)(8) class, requiring notice to potential class members and an opportunity for class opt-outs. The class's counsel indicated that the award of damages for each individual class member would range from zero to a thousand dollars.

The parties disagreed on the wording of the class notification. Turner wanted the notification to affirmatively state that absent class members may not be held liable for attorney's fees: "(Als an absent class member, you cannot be held liable for any attorneys' fees or costs that the Court may award ACS, if ACS prevails" ACS wanted the class notification to indicate that class members who did not opt out might be held liable for attorney's fees in the case of an adverse judgment. Recognizing that the question whether unsuccessful absent class members could be exposed to Rule 82 fees raised "a difficult issue," and that the answer was "uncertain," the superior court decided to "err on the side of revelation" and warn class members of their possible liability for attorney's fees. It therefore crafted the following notice:

In Alaska, the losing side in a lawsuit is generally required to pay a portion of the winning side's costs and attorney's fees. Whether this rule applies to all members of a class action is uncertain. The plaintiff class appears to have roughly 30,000 members. If the class loses on the claims it has brought against ACS, and if the class is required to pay a portion of ACS's costs and attorney's fees, then the money owed would be spread out amongst the entire class. Thus, if you choose to remain a member of the class there is a possibility that you will be required, if the class loses, to pay some of ACS's costs and attorney's fees incurred in opposing this litigation.

Believing that the class notice misstated the law, Turner petitioned this court for review of the legal permissibility of imposing defendants' attorney's fees on absent class members, and we granted the petition. After oral argument, we issued an order requiring the superior court to redraft the notice. This opinion now follows.

III. STANDARD OF REVIEW

The parties disagree about the appropriate standard of review. ACS argues that we should apply the abuse of discretion standard, which we have applied for other certification issues and which federal courts have applied in class notification cases. But Turner correctly points out that the underlying question whether a court may assess defendants' attorney's fees against absent class members is one of law. Legal issues are reviewed de novo, and we adopt the rule of law that is most persuasive in light of precedent, reason, and policy.

IV. DISCUSSION

It is well established that absent members of a class generally are not held liable for attorney's fees: "An absent class member is not personally liable for litigation expenses or attorney's fees except insofar as there is a common fund recovery for the class. The United States Supreme Court's discussion in Phillips Petroleum Co. v. Shutts explains the purpose of this rule The Shutts Court addressed whether the state of Kansas could, without violating the Due Process Clause, assert personal jurisdiction over members of a class who did not affirmatively opt into but did not opt out of a class seeking a money judgment. In ruling that a Kansas court could assert personal jurisdiction over absent class members who had limited contacts with the forum state, the Court reasoned that "Tujnlike a defendant in a normal civil suit, an absent class-action plaintiff is not required to do anything" and "an adverse judgment typically [will not] bind an absent plaintiff for any damages, although a valid adverse judgment may extinguish any of the plaintiff's claims which were litigated. Therefore, "the Due Process Clause need not and does not afford [absent class plaintiffs] as much protection from state-court jurisdiction as it does [absent defendants in nonelass suits]. While the Shutéts decision deals with damages, and this case deals with attorney's fees, the relevant point is that absent class members generally cannot be held liable for monetary awards.

Thus, absent class members "are not liable for costs, though they may be otherwise bound by the judgment, whether favorable or unfavorable." An exception applies to this general rule. "When ... the class action successfully recovers a fund for the benefit of a class or when nonparties to the suit will share in those monies, it is long settled," as one treatise explains, "based largely on windfall and unjust enrichment principles, that the attorneys who created the class recovery are entitled to be reimbursed from the common fund for their reasonable litigation expenses, including reasonable attorneys' fees."

In Municipality of Anchorage v. Gentile, a case in which class representatives sue-cessfully protected the retirement benefits of retired Anchorage police officers and firefighters, we addressed the issue of imposing attorney's fees on absent class members. Specifically, we answered the question whether a trial court could impose attorney's fees on absent class members when a class common fund consists of benefits protected, rather than created, by class attorneys. In holding that "a trial court could conclude that class members should be required to pay something for the benefit they have received as a result of the attorneys' efforts," we noted that named class parties "and their counsel ... are not entitled to charge absent class members for reimbursement of attorneys' fees or litigation expenses if the class suit is unsuccessful." However, "[wlhen litigation bestows a benefit upon a class, the propriety of spreading the litigation costs among those benefited is well established."

ACS argues that the treatises and court decisions relied on by Turner address only the question whether it is permissible to assess the class's own attorney's fees on absent class members. In contrast, ACS contends, the issue at hand deals with whether attorney's fees assessed in the case of an adverse judgment may be imposed on absent class members pursuant to Rule 82. ACS argues that Rule 82 is unique to Alaska, making other authority simply inapposite. While the issue of imposing Rule 82 attorney's fees on absent class members is an issue of first impression, we are not convinced that Rule 82's uniqueness requires us to impose attorney's fees on absent class members in the event of an adverse judgment.

In Adams v. Pipeliners Union 798, we suggested that courts may not assess attorney's fees against absent class members in the event of an adverse judgment. In that case, a union that supplied workers for the Trans-Alaska Pipeline racially discriminated against black workers in violation of Alaska law. The Alaska State Commission for Human Rights "imposed a quota requiring the Union in filling any job order in Alaska to allocate 2.2% of its dispatches to blacks." The 2.2% figure matched the percentage of Alaska's black population at the time. Adams appealed the commission's remedy, pointing out that the union had recruited more than half its dispatched Alaska workers from the South, where the black population represented 38% of the population. In ruling that Adams had standing to appeal the commission's limited remedy, we stated: "[Nlo class member stands to lose anything if Adams's appeal is unsuccessful on the merits. There still will be a hiring quota imposed on Local 798. Moreover, Adams will not be able to assess class members with a portion of his attorney's fees if he loses on the merits." ACS argues that Adams is not controlling because "the fee liability question addressed by the court was about Adams's own attorney's fees, not prevailing party fees." ACS, however, ignores that in Adams we partially based our conclusion that standing existed on the fact that no class member stood to lose anything. If the imposition of attorney's fees on class members had been allowed, then class members would have stood to lose something in Adams. Consequently, Adams does suggest that attorney's fees would not be imposed on absent class members in the event of an adverse judgment.

Civil Rule 82(a) provides that "the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule." Thus, the application of Rule 82 depends on whether absent class members are parties at all for Rule 82 purposes.

The United States Supreme Court has recently held that whether unnamed class members are parties depends on the procedural context in question. In Devlin v. Scardelletti, a class of retired pension plan recipients attempted to prevent the trustees of the plan from eliminating a cost of living adjustment for retired recipients. One absent class member, after objecting to a settlement between the class and the adverse parties, attempted to appeal the trial court's approval of the settlement. The cireuit court held that the absent class member was not a party and could not appeal the trial court's ruling. In overturning the cireuit court, the Supreme Court held that "[nlonnamed class members ... may be parties for some purposes and not for others." The Court continued that "[the label 'party' does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context." In determining that the absent class member was a party in the context of appealing from an objection to a class settlement offer, the Supreme Court reasoned that "Ito hold otherwise would deprive nonnamed class members of the power to preserve their own interests in a settlement that will ultimately bind them...." In following Dev-lin's rationale, we look to the procedural context of Rule 82 attorney's fees and assess the impact of holding that absent class members are parties liable for non-class attorney's fees.

In this case, each class member only stands to recover damages ranging from zero to a thousand dollars. Holding absent class members who stand to gain such small monetary awards liable for ACS's fees defeats a key role of the class action. In Deposit Guaranty National Bank v. Roper, the United States Supreme Court noted that the aggregation of small individual claims is an important use of the class action device, since without it, "aggrieved persons may be without any effective redress...." " A rule that permits the imposition of attorney's fees on absent class members who stand to gain such small monetary compensation will encourage opt-outs and have a chilling effect on this important use of the class action device. As a result, some class members with legitimate claims will be left without a remedy.

Moreover, such a rule might increase litigation. Although ACS contends that "a rational potential plaintiff ... would not opt out of the class and file a separate lawsuit, because such a litigant then would assume the responsibility for paying the entire Rule 82 award in the second lawsuit," this might not be the case. ACS's argument ignores the fact that potential class members who face imposition of attorney's fees in the case of an adverse verdict may have an incentive to opt out of the initial litigation in order to observe what happens in that litigation, maintaining an option to file a second lawsuit if the first one is successful. This would defeat a key purpose of the class action-the consolidation of like claims into one litigation.

ACS contends that public policy favors the imposition of defendants' attorney's fees on absent class members, but ACS's arguments are unpersuasive. ACS argues that Rule 82 is supposed to "encourage litigants to factor in the costs of litigation when they decide whether to file lawsuits and whether and when to settle them," and contends that failing to impose attorney's fees will improperly affect absent class member behavior. ACS fails to recognize that absent class members do not file lawsuits nor do they normally settle them.

As ACS points out, Rule 82, which deviates from the American rule, is designed to create "basic fairness." "One who has been forced to litigate in order to vindicate one's rights should be reimbursed in part for litigation expenses. ACS also notes that Rule 82 is a two-way fee-shifting statute mandating the awarding of attorney's fees to the prevailing party whether that be defendant or plaintiff, whereas many cause of action-specific fee-shifting statutes are one-way, only providing attorney's fees for plaintiffs. But our ruling does not eliminate Rule 82 attorney's fees in class actions; it simply limits Rule 82's possible reach to named parties, meaning that a person who has been forced to litigate in order to secure his or her rights will be reimbursed in part for litigation expenses.

Furthermore, we are guided by other courts' decisions regarding whether fee-shifting statutes require the imposition of attorney's fees on absent class members in the event of an adverse judgment. In Harley v. Superior Court, for example, a California court of appeals held that "absent class members, at least those identified on an 'opt-out' basis, cannot be held liable for a successful defendant's attorney's fees or costs." The Earley court, considering an employee class action case for unpaid overtime wages, reasoned that imposing attorney's fees liability on absent class members would encourage class members to opt out and engage in separate litigation The court in Farley recognized that because the individual claims for unpaid wages were relatively small, "[dle-fense fees and costs could easily dwarf the potential overtime compensation recovery each worker might obtain." Consequently, "workers may well forego asserting their statutory wage and hour rights," thereby emboldening employers who violate the overtime laws. Similarly, in this case, individual class members have relatively small claims. The threat of lability for attorney's fees might lead them to conclude that "the game is not worth the candle" and cause them to forgo their legal remedies, thereby encouraging allegedly harmful business practices.

Moreover, while some class members will forgo their legal remedies, others might opt out and file separate claims. The Harley court noted that "[If an individual wage claimant is going to be held liable for defense fees, it makes much more economic sense to be liable only for the defense of an individual action rather than for the defense of a class action." Imposing attorney's fees on absent class members after an adverse judgment would "foster repetitious litigation of essentially identical claims by individuals whose claims could otherwise be resolved in one class action." And that "would undermine the effectiveness of the group remedy provided by the class action.

Similarly, in Wright v. Schock, a case involving certain banks' practices in purchasing secured promissory notes, the Ninth Circuit addressed this issue. The trial court in Wright granted summary judgment and awarded costs to defendants prior to ruling on class certification. The plaintiff argued that the court should not have granted summary judgment before ruling on class certification because that prevented the plaintiff from spreading the judgment of defendants' costs across the class. In rejecting this argument, the court recognized that granting summary judgment before certifying the class would not harm the plaintiff because "[albsent class members have no obligation to pay attorneys' fees and litigation costs, except when they elect to accept the benefit of the litigation.

V. CONCLUSION

Holding class members who have relatively small claims and who remain passive throughout litigation liable for noneclass attorney's fees will increase litigation and hamper the efficiencies of class litigation. Consequently, we hereby REVERSE the order of the superior court approving the disputed language in the class notice and hold that the absent class members in this case may not be held liable for ACS's attorney's fees if ACS proves to be successful in this litigation.

      . Earley v. Superior Court, 79 Cal.App. 4th 1420, 95 Cal.Rptr.2d 57, 60 (2000) (''The extent to which absent class members should be exposed to personal liability for a successful defendant's attorney's fees and costs is a matter dependent upon questions of public policy as well as statutory interpretation. These are questions of law subject to our independent review.").

      . Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

      . 1 Hersert Newsrre & Ausa Contr, Newsere on Crass Actions § 1.03, at 1-12 (3d ed.1992).

      . 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); see also Bartek v. State, Dep't of Natural Res., Div. of Forestry, 31 P.3d 100, 102 (Alaska 2001) (noting that federal decisions are particularly persuasive in interpreting Alaska Civil Rule 23 because that rule is patterned after Federal Civil Rule 23).

      . Phillips Petroleum, 472 U.S. at 811, 105 S.Ct. 2965.

      . Id. at 810, 105 S.Ct. 2965.

      . Id. at 811, 105 S.Ct. 2965.

      . In a footnote, the Shutts Court explicitly declined to make a ruling on the imposition of court costs on absent class members, but did make this observation: "Petitioner places emphasis on the fact that absent class members might be subject to discovery, counterclaims, cross-claims, or court costs. Petitioner cites no cases involving any such imposition upon plaintiffs, however. We are convinced that such burdens are rarely imposed upon plaintiff class members, and that the disposition of these issues is best left to a case which presents them in a more concrete way." Id. at 810 n. 2, 105 S.Ct. 2965.

      . Id. at 811-12, 105 S.Ct. 2965.

      . 3 Hersert NewsEre & Ausa Conte, NewsErc on Crass Actions § 16.13, at 16-78 (3d ed.1992).

      . Id. § 14.02, at 14-3.

      . 922 P.2d 248 (Alaska 1996).

      . Id. at 267.

      . Id.

      . Id. (quoting 3 HErsert NewsEre & Ausa NewsEre on Crass Actions § 14.02, at 14-2 through 14-3 (3d ed.1992)).

      . Id.

      . In deciding that "absent class members, at least those identified on an 'opt-out' basis, cannot be held liable for a successful defendant's attorney's fees or costs," a California court of appeals noted that "[in reaching this result, we have not been aided by any direct authority; indeed, this appears to be a very novel issue." Earley v. Superior Court, 79 Cal.App.4th 1420, 95 Cal. Rptr.2d 57, 64 (2000).

      . 699 P.2d 343 (Alaska 1985).

      . Id. at 345.

      . Id. (internal quotation omitted).

      . Id.

      . Id.

      . Id. at 349.

      . 536 U.S. 1, 4, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002).

      . Id. at 4-6, 122 S.Ct. 2005.

      . Id. at 6, 122 S.Ct. 2005.

      . Id. at 9-10, 122 S.Ct. 2005.

      . Id. at 10, 122 S.Ct. 2005.

      . Id.

      . 445 U.S. 326, 339, 100 S.Ct. 1166, 63 LEd.2d 427 (1980).

      . See Earley v. Superior Court, 79 Cal.App.4th 1420, 95 Cal.Rptr.2d 57, 66-67 (2000).

      . Absent class members "are absent, unnamed parties who did not initiate the action...." 1 Hzeasertr Newsere & Ausa Conte, NewsEre on Crass Actions § 1.03, at 1-11 (3d ed.1992).

      . While it is possible for an absent class member to opt out of a class and settle individually with defendant, such scenarios are unlikely because "[alfter a class is certified, a defendant's settlement with any individual plaintiff, or even the sole named plaintiff, will ordinarily not diminish the exposure to liability of the defendant to claims from the rest of the class." 2 Hersert Newsere & Ausa Conte, NewsEre on Crass Actions § 11.14, at 11-18 through 11-19 (3d ed.1992). It should be noted that any absent class member may object to a settlement. Id. § 11.55, at 11-132. However, we need not address the issue of whether absent members who become active at some point during the litigation are liable for attorney's fees.

      . Bozarth v. Atlantic Richfield Oil Co., 833 P.2d 2, 4 n. 3 (Alaska 1992).

      . 95 Cal.Rptr.2d at 64.

      . Id. at 58, 67.

      . Id. at 67.

      . Id.

      . Id. at 65.

      . Id. at 67.

      . Id.

      . Id.

      . 742 F.2d 541, 542 (Oth Cir.1984).

      . Id. at 542-43.

      . Id. at 543 & 545.

      . Id. at 545.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Jeffrey L. DAYTON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8526.
    Court of Appeals of Alaska.
    Oct. 10, 2003.

      Geoffry B. Wildridge, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Jeffrey O'Bryant, Assistant District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Jeffrey L. Dayton challenges the restitution portion of his sentence for third-degree assault. Dayton claims the court erred when it ordered restitution of $2,416 for a computer and $1,649.98 for software. As we discuss below, we direct the superior court to reduce the award for the computer and software to $3,500. Dayton also claims the court should have granted his motion for reconsideration of the restitution order. We conclude that Dayton has not shown that the superior court abused its discretion when it denied reconsideration.

Background facts and proceedings

In October 2001, Abbie West occupied a cabin in Salcha owned by Dayton's brother, Eddie Dayton, a dog musher. West, also a dog musher, was staying at the cabin with her dogs and was caring for many of Eddie Dayton's dogs.

On October 31, Dayton came to the cabin and demanded to be let inside. He broke a window in the cabin. Although West tried to keep the door closed, Dayton kicked in the door cutting West's hand.

Onee inside, Dayton exhibited radical mood swings, ranging from violence to caring. He yelled at West and started removing her belongings from the cabin and throwing them in West's truck. Several items owned by West were damaged. Dayton brandished a handgun he was carrying and asked West, "Do you want to mess with me?" The troopers were called to the scene and arrested Dayton.

The grand jury indicted Dayton on one count of first-degree burglary and one count of third-degree assault. The State filed an information charging one count of fourth-degree assault and one count of fourth-degree criminal mischief. Ultimately, Dayton reached a charge bargain with the State; Dayton would change his plea to third-degree assault, the State would dismiss the remaining charges, and sentencing would be open.

Before sentencing, the State filed a motion for restitution to be ordered for West's benefit. In support of the motion, the State attached West's list of property that Dayton damaged, along with several documents supporting her financial loss. At sentencing on September 25, 2001, Dayton's attorney asked the court to schedule a restitution hearing because he had not had time to review the restitution request. Because West was present at the sentencing, Superior Court Judge Charles R. Pengilly suggested that West testify about her losses so that she would not have to return later. Dayton agreed.

Under questioning by Judge Pengilly, West said that the prices she submitted for her losses were accurate. West acknowledged that the value of the computer hardware depreciated between the time she bought it and when West destroyed it, but she said she could have sold the system she had for $3,500. Judge Pengilly tentatively suggested restitution in the amount of $5,000 for all her losses, including the computer system, and indicated that he would schedule a further hearing if Dayton contested the amount and wished to present evidence.

Dayton requested a hearing which the court held on December 2, 2002. West testified again and described the financial losses she incurred, and the methodology she employed to calculate her damages. Dayton cross-examined West and presented testimony from an investigator from the Public Defender's office.

When the court told Dayton that the State had presented sufficient evidence to support the restitution award, Dayton asked for yet another hearing so that he could present additional evidence on the value of the damaged items. Judge Pengilly denied that request and said that he would conclude the hearing.

Judge Pengilly found that West was a credible witness. He found that the amount of the damages that West described was uncontroverted. After deducting several items from the restitution request, Judge Pengilly entered a judgment for restitution in the amount of $6,592.82.

Dayton moved for reconsideration of the restitution order. Dayton once more asked for another hearing to present additional evidence, including information he had obtained on the price of a computer. Dayton renewed his argument that there was no proof that West had suffered any financial loss regarding the computer software and claimed the value of the computer was unverified. The superior court denied Dayton's motion through inaction.

Restitution for the damaged computer

Dayton attacks the portion of the restitution order attributable to West's computer loss. First, Dayton argues generally that the evidence does not support the value attributed to the computer. But West testified at the two hearings and described how she valued her computer equipment. She explained that she went to the OfficeMax store and described her damaged computer system to a salesman. The salesman provided her with a written quote that included, among other things, the price for the computer and the software that was installed on the damaged machine. West provided this writing to the court. The court found West's testimony credible.

Dayton argues that the superior court's restitution order is inflated because the court awarded restitution for West's broken computer based on the cost of a "new, improved [replacement] computer." But the record refutes this claim. The State asked for computer hardware restitution in the amount of $2,416. (West explained that the purchase prices of the various items of equipment were reconstructed by a computer salesman at OfficeMax.)

But even though Judge Pengilly did not order Dayton to buy West a "new, improved" computer, the restitution order does pose a problem. Judge Pengilly adopted the State's restitution figure of $2,416 for the computer hardware, even though West explained that this was the original cost of the equipment, and that the contemporaneous value of the equipment was less.

In her testimony, West acknowledged that her system was worth less than its original purchase price because (1) her system was one year old when Dayton destroyed it, and (2) Intel had just issued its next generation chip (the Pentium IV). Even so, West declared that her system (hardware and software combined) could have been sold for at least $3,500 because the system was in per-feet working order when it was destroyed.

Judge Pengilly awarded combined restitution of $4,066 for West's computer hardware and software-i.e., some $550 more than West's estimate of the system's contemporaneous value. Because Judge Pengilly awarded restitution for the full original purchase price of the hardware and software, without discount for the age of the system, we conclude that the record fails to support this award. We therefore direct the superior court to reduce the combined award for hardware and software to $3,500.

Dayton also complains that he did not have any meaningful chance to contest the values testified to by West and did not have sufficient notice of her claim. But the State filed a motion for restitution before sentencing that listed the items and the price for each that formed the basis for the restitution request. The motion included a general de-seription of each item along with supporting documentation that West provided the State. West testified at sentencing and Dayton had the opportunity to ask her about the property during cross-examination. Several weeks later, the court held another restitution hearing at Dayton's request, and West again testified and was available for cross-examination. We reject Dayton's claim that he did not have a meaningful chanee to contest the values proposed by the State.

Finally, Dayton argues that the restitution order should be vacated because West had "unclean hands." Dayton makes this claim because West took all of the broken computer equipment, except for the monitor, to the dump before Dayton's investigator could examine the equipment to assess its value.

But after West testified at the first restitution hearing (on the day of Dayton's sentencing), Judge Pengilly told her that she was now "free to dispose of [the] property [in] any way [she saw] fit." Dayton's attorney did not object to the court's comment. In particular, Dayton's attorney did not inform Judge Pengilly that West should be ordered to hold onto the computer equipment because the defense intended to pursue an independent appraisal of the replacement value of the equipment. Thus, the record fails to show even a colorable claim of unclean hands.

Restitution for software

Dayton next argues that the court should not have ordered restitution for software that was installed on West's damaged computer. Dayton argues that restitution was not warranted because there is no evidence that West "permanently lost" the software discs used to install the software on the damaged computer. Dayton argues that if West finds the discs, she could install them on her new computer.

Dayton advances a view of the record in a light most favorable to his argument. The final hearing on restitution occurred over a year after Dayton's crime, and West had been unable to find the software. She testified that in reaction to Dayton's crime, she moved away from the cabin almost immediately. By the time of the restitution hearing, she had not located the discs.

This evidence provided the superior court with a sufficient basis to conclude that West had to obtain replacement software to make her whole. Thus, the superior court properly ordered Dayton to make restitution for the software.

Dayton's motion for reconsideration

Dayton filed a motion for reconsideration. The superior court did not act on Dayton's motion, and, by operation of law, the motion was deemed denied.

In the motion, Dayton again asserted that there was no proof that the software was lost and renewed his claim that the cost of the computer equipment was not verified. In the alternative, Dayton asked for an additional hearing to present evidence on the cost of an alternative computer.

As we discussed above, the superior court properly ordered restitution for the computer and software. Furthermore, Dayton had ample notice of the hearings during which the court considered restitution. The court was not required to reconsider its rulings and schedule a third hearing on restitution so that Dayton could present evidence on the value of an alternative computer.

From our review of the record, we conclude that the superior court did not abuse its discretion by declining to act on Dayton's motion for reconsideration.

Conclusion

We direct the superior court to amend the restitution order to reflect a $3,500 value for the computer and software. As amended, the restitution order of the superior court is AFFIRMED.

      . AS 11.46.300(a) and AS 11.41.220(a), respectively.

      . AS 11.41.230(a) and AS 11.46.484(a), respectively.

      . See Alaska R.Crim. P. 42(k)(4).

      . See Alaska R.Crim. P. 42(k)(4).

      . See Neal & Co. v. Association of Village Council Presidents Regional Housing Authority, 895 P.2d 497, 506 (Alaska 1995).


author: Justice KOURLIS Justice MARTINEZ

text:
    William MEADS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 02SC590.
    Supreme Court of Colorado, En Banc.
    Oct. 14, 2003.
    Rehearing Denied Nov. 3, 2003.

      David S8. Kaplan, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
    Ken Salazar, Attorney General, Paul Koeh-ler, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

       Chief Justice MULLARKEY, Justice MARTINEZ and Justice BENDER would grant the Petition.

   Justice KOURLIS

delivered the Opinion of the Court.

I. Introduction

In this case, we address the issue of whether second degree aggravated motor vehicle theft is a lesser-included offense of felony theft. Following a jury trial, Defendant William L. Meads was convicted of both offenses. In People v. Meads, 58 P.3d 1187 (Colo.App.2002), the court of appeals affirmed both convictions, concluding that see-ond degree aggravated motor vehicle theft was not a lesser-included offense of theft. Id. at 1189-1140.

We affirm the court of appeals' decision that second degree aggravated motor vehicle theft is not a lesser-included offense of theft. Applying the "strict elements test" to the relevant statutes in this case, we conclude that the statutory elements of the greater offense, theft, do not necessarily include all the statutory elements of the lesser offense, second degree aggravated motor vehicle theft. Accordingly, one is not a lesser-included offense of the other and the defendant could suffer convictions for both offenses.

II. Facts and Procedural History

William Meads, the Petitioner, stood trial for the theft of a truck belonging to a family friend. The prosecution charged Meads with felony theft, a violation of section 18-4-401(1)(a). Through counsel, Meads requested the court to instruct the jury on the offense of second degree aggravated motor vehicle theft, a misdemeanor violation of seetion 18-4-409(4). Meads asserted that the latter charge was a lesser-included offense of theft. The trial court agreed to give the jury the instruction but categorized second degree aggravated motor vehicle theft as a lesser non-included offense of theft. As a result, the jury had the option of convicting Meads of both offenses, and ultimately did find him guilty of both felony theft and second degree aggravated motor vehicle theft.

The trial court sentenced Meads to four years in the custody of the Department of Corrections for the felony theft conviction. Additionally, the trial court sentenced him to one year in jail for the second degree aggravated motor vehicle theft conviction, and ordered that both sentences should run concurrently. Thus, the harm Meads argues he has suffered is the imposition of both a misdemeanor conviction and a felony conviction. He does not argue that he is suffering a longer sentence as a result of the two convie-tions.

Meads appealed his convictions to the court of appeals, asserting that second degree aggravated motor vehicle theft is a lesser-included offense of theft. As a result, Meads argued, he could not be convicted of two offenses that arose out of the same criminal episode. The court of appeals rejected Meads' argument and held that second degree aggravated motor vehicle theft is not a lesser-included offense of theft. Meads, 58 P.3d at 1189-1140.

In its analysis, the court of appeals compared the statutory elements of theft and second degree aggravated motor vehicle theft. The court noted two main differences between the two offenses. Id. at 1139. First, felony theft requires that the actor have the intent to permanently deprive the victim of the use or benefit of a thing of value. This mens rea requirement is not an element of second degree aggravated motor vehicle theft. Second, aggravated motor vehicle theft requires that the thing taken be a motor vehicle. Conversely, felony theft only requires that the thing taken be anything of value.

After comparing the two statutes, the court of appeals relied on People v. Leske, 957 P.2d 1030 (Colo.1998) and concluded that second degree aggravated motor vehicle theft is not a lesser-included offense of felony theft. Meads, 58 P.3d at 1139-1140. In Leske, we held that under the strict elements test, "if proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for the purposes of section 18-1-408(b)(a)" Leske, 957 P.2d at 1036 We went on to clarify that "[ilf, however, each offense necessarily requires proof of at least one additional fact which the other does not, the strict elements test is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent." Id. (citing People v. Henderson, 810 P.2d 1058, 1063 (Colo.1991)).

III. Analysis

The crux of what we are asked to determine in this case is quite simple: what punishment has the legislature prescribed for a particular criminal act? More specifically, when a person is convicted of stealing a truck in Colorado, can he be charged with and convicted of two separate crimes arising out of that incident? In our view, the court of appeals correctly applied the strict elements test formally adopted in People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). Therefore, the court of appeals did not err in concluding that second degree motor vehicle theft is not a lesser-included offense of felony theft, and that, therefore, Meads could suffer convictions for both offenses arising out of the same incident.

A. Background

Under the Double Jeopardy Clauses of both the United States and Colorado Constitutions, the state may not punish a person twice for the same offense. Patton v. People, 385 P.8d 124, 128-129 (Colo.2001)(citing U.S. Const. amend. V; Colo. Const. art. II, § 18). This protection specifically includes the guarantee that the accused will not be subject to multiple punishments imposed in the same criminal prosecution for statutory offenses proscribing the same conduct. Id. at 129.

Ordinarily, the legislature does not intend to punish the same offense under two different statutes. See Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 585 (1983)(quoting Whalen v. United States, 445 U.S. 684, 691-692, 100 S.Ct. 1482, 1487-1488, 68 L.Ed.2d 715 (1980)); see also People v. Haymaker, 716 P.2d 110, 116 (Colo. 1986). That is not to say, however, that the legislature may not choose to do so. Rather, upon a clear showing of legislative intent, the General Assembly is free to authorize multiple punishments based upon the same criminal conduct without offending the Double Jeopardy Clause. Paffon, 35 P.3d at 129; Leske, 957 P.2d at 1085; Boulies v. People, 770 P.2d 1274, 1278-1279 (Colo.1989). However, in the absence of express legislative authorization, the court must ascertain whether the offenses are sufficiently distinguishable to permit the imposition of multiple punishments. Patton, 35 P.8d at 129.

Thus, in order to answer the question of what punishment the legislature intended for an actor who steals a truck in Colorado, we engage in a two-part inquiry. See id. First, did the General Assembly clearly authorize separate punishments for stealing both "anything of value", as required by the felony theft statute, and a "motor vehicle", as required by the second degree aggravated motor vehicle theft statute, or was only one punishment contemplated? Second, if no such express authorization is evident in the legislation, are these offenses otherwise sufficiently distinguishable to permit multiple punishments? Id.

B. Legislative Intent

Where the same conduct violates two statutory provisions, we must determine whether the legislature intended that each violation be a separate offense. Patton, 85 P.3d at 129 (citing Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985)). If the legislative intent to create separate offenses is clear from the face of the statute or the legislative history, our inquiry ends. Id.

Our General Assembly has expressly provided that, "[wlihen any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." Leske, 957 P.2d at 1085 (citing § 18-1-408(1)). This language clearly authorizes a prosecutor to charge a defendant with the violation of two or more statutes arising out of the same conduct. However, this general expression of intent to allow multiple charges for a single act is subject to statutory limitations. Specifically, a defendant may not be conviect-ed of multiple offenses arising out of the same conduct if one offense is a lesser-included offense of the other offense, as defined by section 18-1-408(5)(a) In this context, in order to determine whether one offense is a lesser-included offense of another, this court applies the strict elements test.

C. Strict Elements Test

In determining whether one offense is within the lesser-included category, this court has construed section 18-1-408(5)(a) to require a comparison of the statutory elements of each offense. Patton, 85 P.3d at 180. Under the strict elements test, also known as the "statutory elements test" or "Blockburger test," if proof of facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for purposes of section 18-1-408(5)(a). Leske, 957 P.2d at 1086. However, if each offense necessarily requires proof of at least one additional fact which the other does not, the strict elements test is not satisfied and a presumption arises that a defendant can be convicted of both offenses. Id. Here, establishing the elements of theft, the greater offense in this case, does not necessarily establish all of the elements of aggravated motor vehicle theft, the lesser offense. Therefore, our case law would presume that convictions could enter on both offenses.

The strict elements test is only one of a number of tests used by courts in the United States to define a lesser-included offense. See generally State v. Jeffries, 480 N.W 728, 730-732 (Iowa 1988) (survey of various approaches used in the United States to define lesser-included offenses); see also State v. Meadors, 121 N.M. 38, 908 P.2d 731, 735 (1995) (same); Patrick D. Pflaum, Comment, Justice is Not All or Nothing: Preserving the Integrity of Criminal Trials Through the Statutory Abolition of the All-Or-Nothing Doctrine, 783 U.Colo.L.Rev. 289, 295-298 (2002) (other tests include the "Pleadings" approach which examines the actual charges brought by the prosecution; the "Evidence" approach in which courts consider the evidence presented at trial to see if evidence supports any lesser-included offense charges; and the "Cognate" approach which identifies lesser-related, as opposed to lesser-included, offenses that have several elements in common with the greater-related offense but may have one or two elements not essential to the greater crime.). Regardless of the positive or negative attributes of each approach, this court has adopted the strict elements test as the means of determining whether one crime is the lesser-included offense of another crime. Thus, until a decision to abandon this test for a new approach is made, we must apply the strict elements test as it stands.

This court formally adopted the strict elements test in Rivera, 525 P.2d at 4883-484. In Rivera, this court recognized that the problem of determining what is a lesser-included offense under Colorado law had received "varied treatment." Id. at 483. In choosing the strict elements test among other competing tests, this court pointed to several attributes that favored the adoption of the statutory approach. Specifically, this court highlighted the ease with which the test is applied, the uniform nature of its application and a defendant's right to notice of the possible charges against him or her. Id. at 488-434. As a result, for almost thirty years we have applied the statutory test set out in Rivera, which mandates that the greater offense must establish every essential element of the lesser offense. Id. at 483 (citing Dan iels v. People, 159 Colo. 190, 411 P.2d 316 (1966)).

Applying the strict elements test involves nothing more than placing the relevant statutes next to each other, comparing the language, and determining how closely they match,. If the greater offense includes all of the elements of the lesser offense plus one or more additional elements, it is fair to say that the lesser offense is included within the greater offense. Conversely, if a comparison of the two statutes reveals that the lesser offense has substantively different elements than the greater offense, the lesser offense is not included in the greater offense and a defendant may be convicted of both. This analysis parallels the analysis used in Rivera.

In Rivera, this court concluded, after applying the strict elements test, that assault with a deadly weapon was not a lesser-included offense of assault with the intent to commit murder. Id. at 484. This court reasoned, after comparing the two relevant statutes, that assault with the intent to commit murder did not have the use of a deadly weapon as an essential element. Id. Thus, this court concluded that assault with intent to commit murder did not establish all the essential elements of the lesser crime, assault with a deadly weapon, and could not be considered a lesser-included offense. Id.

Similarly, applying the strict elements test to the relevant statutes in this case, the offense of felony theft does not necessarily include all of the essential elements of aggravated motor vehicle theft. The latter is committed only by obtaining or exercising control over a motor vehicle, while the former can be committed by obtaining or exercising control over any number of things that are not motor vehicles. Stated differently, proof that a defendant obtained or exercised control over "anything of value" does not mecessarily establish that a defendant obtained or exercised control over a "motor vehicle." That conclusion could only be supported by viewing either the pleadings or the evidence adduced at trial; an inquiry outside the purview of the strict elements test. Thus, although the offense of aggravated motor vehicle theft may be established by the facts establishing felony theft in a particular case, it is not necessarily established by proof of the same or less than all of the statutory elements of felony theft.

A portion of our precedent on this issue has arisen in the felony murder context. Those cases are not apposite because of the necessarily parasitic relationship between the felony murder offense and the underlying offense on which it is predicated. In other words, a defendant cannot be convicted of felony murder unless he is guilty of an underlying qualifying offense.

Felony murder is a homicide that occurs during the commission of one of a number of different felonies, including arson, rape, and robbery. We have held that a particular predicate felony is a lesser-included offense of felony-murder premised upon commission of that felony. In doing so, we have made clear that by defining the offense in terms of a series of potential predicate felonies, the legislature intended to prescribe the "unit of prosecution" to which the strict elements test must be applied. See Boulies, 770 P.2d 1274; see also People v. Bartowsheski, 661 P.2d 235 (Colo.1983). For purposes of the strict elements test then, the statutory elements of felony-murder are therefore limited to a homicide predicated upon the commission of a particular underlying felony, just as if each were proscribed in a different statutory provision. Cf. Whalen, 445 U.S. at 694, 100 S.Ct. 1432 ("'There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions.").

In Bartowsheski, 661 P.2d at 245, this court analyzed whether a defendant could be simultaneously convicted of both felony murder and the predicate felony of robbery without violating the statutory provisions of seetion 18-1-408. We concluded that because proof of the greater offense "based upon the causation of the robbery victim's death, either in the course of or in furtherance of the crime of robbery or in the course of immediate flight therefrom," necessarily included proof of the very same elements essential to the lesser offense, robbery, a conviction on both offenses could not stand. Id. at 245-246. Thus, in Bartowsheski the court compared the proof of elements required in each statute, and thereby determined that robbery was a lesser-included offense of felony murder predicated upon robbery. We note that this analysis effectuated the goals articulated in Rivera-efficiency, uniformity, and notice to defendants.

In Boulies 770 P.2d at 1278-1279, the court relied more expressly on the unit of prosecution theory, reasoning that the robbery offense was the predicate for the felony murder conviction and, thus, was the "same offense" for purposes of double jeopardy. The court in that case looked to unit of prosecution actually charged to compare the two offenses, rather than to the elements of the entire felony murder statute. This approach cannot guide our analysis in this case, because in contrast to the felony murder statutes-here the legislature chose not to define felony theft in terms of separate units of prosecution.

The legislature has, however, not left the defendant without protection against multiple punishments for the same conduct. Even where two offenses are not related as greater and lesser included offenses within the meaning of the strict elements test, convictions for committing two offenses cannot result in consecutive sentences if the conviec-tions are based on the same act or series of acts arising from the same criminal episode and they are supported by identical evidence. § 18-1-408@8). Although the defendant incurred judgments of conviction both for theft and for aggravated motor vehicle theft of the same truck in this case, his sentences resulting from those convictions were properly concurrent sentences.

IV. Conclusion

In our view, applying the strict elements test to the relevant statutes in this case leads to the conclusion that second degree aggravated motor vehicle theft is not a lesser-included offense of felony theft. According ly, we affirm the court of appeals and uphold the imposition of two convictions by the trial court.

Justice MARTINEZ dissents, and Chief Justice MULLARKEY and Justice BENDER join in the dissent.

Justice MARTINEZ

dissenting:

The court of appeals based its decision that second degree aggravated motor vehicle theft was not a lesser-included offense of theft on two distinctions between the offenses. First, the court of appeals decided that because theft requires that the actor have the intent to permanently deprive, whereas second degree aggravated motor vehicle theft does not include that element, therefore second degree aggravated motor vehicle theft is not a lesser-included offense of theft. Second, the court of appeals held that because second degree aggravated motor vehicle theft requires that the thing taken be a motor vehicle, while theft requires that the thing taken be anything of value, that second degree aggravated motor vehicle theft is not a lesser-included offense of theft. The majority agrees with the court of appeals on the second point and does not address the first. I disagree with both of the court of appeals arguments.

First, second degree aggravated motor vehicle theft need not contain all of the elements of theft to be a lesser-included offense. While proof of the elements of theft must necessarily include all of the elements of second degree aggravated motor vehicle theft for second degree aggravated motor vehicle theft to be a lesser-included offense of theft, the converse is not true. Therefore, the fact that theft requires the additional element of "intent to permanently deprive" does not prevent second degree aggravated motor vehicle theft from being a lesser-included offense of theft.

Second, the element, "anything of value," necessarily includes a motor vehicle. A motor vehicle is a thing of value under the statute. Thus, the difference between the statutory elements does not compel the conclusion that second degree aggravated motor vehicle theft is not a lesser-included offense of theft. To the contrary, it illustrates the lesser-greater relationship between the two offenses.

Because I would find that second degree aggravated motor vehicle theft is a lesser-included offense of theft, I respectfully dissent.

Introduction: The Strict Elements Test

Before I commence an analysis of the case at hand, I review the test under which statutes are compared to determine whether a lesser-included relationship exists. Under a strict elements test, a court should compare the statutory elements of the offenses. People v. Leske, 957 P.2d 1080, 1086 (Colo.1998). When applying a strict elements test, courts should not examine the facts or evidence of the individual case, but should limit their comparison to the language of the statutory elements of the two offenses. Id.; Armintrout v. People, 864 P.2d 576, 579 (Colo.1998).

Meads was charged with theft, a violation of section 18-4-401(1)(a), 6 C.R.S. (2002), and the jury was instructed accordingly. The district court also instructed the jury of the offense of second degree aggravated motor vehicle theft, a violation of section 18-4-409(4), 6 C.R.S. (2002), as a lesser-noninelud-ed offense. Because a strict elements test involves, as its name suggests, a comparison of the statutory elements, and not a comparison of the facts in any particular case, this court need look no further than the offenses charged.

Theft, a violation of section 18-4-401(1)(a), requires that the following elements be met:

(1) that the defendant, in the state of Colorado, at or about the date and place charged,
(2) knowingly
a. obtained or exercised control over
b. anything of value
c. which was the property of another person,
d. without authorization or by threat or deception, and
(8) with intent to permanently deprive the other person of the use or benefit of the thing of value.

Second degree aggravated motor vehicle theft, a violation of section 18-4-409(4), requires:

(1) that the defendant, in the state of Colorado, at or about the date and place charged,
(2) knowingly,
(8) obtained or exercised control over a motor vehicle,
(4) belonging to another person,
(5) without authorization or by threat or deception.

Comparing the statutory elements of theft and second degree aggravated motor vehicle theft reveals two distinctions. Specifically, theft requires: (1) the added mens rea of intent to permanently deprive, while second degree aggravated motor vehicle theft has no such requirement; and (2) that the object taken be anything of value, whereas second degree aggravated motor vehicle theft requires that the object taken be a motor vehicle.

The court of appeals relied on both of these differences, whereas the majority relies only on the latter, to find that second degree aggravated motor vehicle theft is not a lesser-included offense of theft. I do not find that either of these distinctions forecloses the possibility of a lesser-included relationship. To the contrary, the differences in the statutes merely illustrate the nature of a lesser-included relationship.

I. Theft's Additional Element-'"Intent to Permanently Deprive"

The Péople make the argument that see-ond degree aggravated motor vehicle theft is not a lesser-included offense of theft because theft requires an additional element, the intent to permanently deprive, that is not required by second degree aggravated motor vehicle theft. The majority did not address this argument and merely seems to assume, albeit correctly, that a greater offense may have additional elements not included in the lesser offense. Nonetheless, because the court of appeals relied separately on this argument, I write to clarify the misunderstanding which I believe is a result of statements made in this court's opinion, People v. Leske, 957 P.2d 1030 (Colo.1998).

The confusion in the People's and the court of appeals' arguments stems from the following language:

If, however, each offense necessarily requires proof of at least one additional fact which the other does not, the strict elements test is not satisfied and a presumption arises that both convictions for both offenses is consistent with legislative intent.

Leske, 957 P.2d at 1086 (citations omitted). The People cite to this language to support the proposition that for an offense to be a lesser-included of a greater offense, its statutory elements would need to be identical to those required by the greater offense. However, that language refers to the strict elements test employed under a double jeopardy analysis to determine whether two offenses punish identical conduct; it does not refer to the strict elements test employed under a double jeopardy analysis to determine whether an offense is a lesser-included offense of another offense.

I believe that this confusion exists because a strict elements test is used to determine three kinds of violations: First, whether double jeopardy prohibits punishment for multiple offenses because the statutes punish identical conduct, see, eg., Boulies v. People, 710 P.2d 1274, 1278 (Colo.1989); second, whether double jeopardy disallows multiple convictions because one offense is a lesser-included of the other, see e.g., id.; and third, whether an equal protection violation arises because a defendant could be punished differently under multiple statutes for identical conduct, see, eg., People v. Westrum, 624 P.2d 1302 (Colo.1981). Thus, because the same type of test is used for different purposes, the language associated with that test does not always apply to a particular case.

In this case, the People have misinterpreted the lesser-included offense analysis outlined in Leske by incorporating into it the analysis for identifying whether statutes violate double jeopardy because they punish identical conduct. In Leske, this court was faced with both the question of whether an offense was a lesser-included offense and whether the offenses were identical. However, the inquiry in this case is not whether the statutes are identical for purposes of either a double jeopardy or an equal protection analysis; rather, the sole issue is whether a lesser-included relationship exists, and thus whether the defendant may be properly punished under both statutes.

To argue that a lesser-included offense relationship exists only when neither offense contains an additional statutory element not required by the other is tantamount to saying that an offense is a lesser-included offense only if its elements are identical to those of the greater offense. The nature of the relationship between lesser-included and greater offenses is not that of identical offenses. To the contrary, it is that greater offenses possess all of the elements of lesser-included offenses plus at least one additional element or part of an element.

Because lesser-included offenses need not contain all of the elements of the greater, and because the additional mens rea element is included only in the greater offense, it does not pose an obstacle to a lesser-greater relationship. Consequently, I disagree with the court of appeals that this distinction between the offenses prevents second degree aggravated motor vehicle theft from being a lesser-included offense of theft.

II. A Motor Vehicle is a Thing of Value

The element, taking a "motor vehicle," contained in the second degree aggravated motor theft statute clearly falls within the theft element, taking "anything of value." The majority does not seem to disagree with this proposition outright, but argues that while the evidence used to prove the elements of theft may establish the elements of second degree aggravated motor vehicle theft in a given case, the evidence used to prove the elements of theft will not necessarily establish the elements of second degree aggravated motor vehicle theft in all cases. This point is not persuasive. It is not the nature of lesser-included relationships that the evidence used to prove the elements of the greater offense in a particular case will nee-essarily establish the elements of every possible lesser-included offense. For example, proof that a wallet was taken does not establish the element of taking a motor vehicle. However, the strict elements test dictates that courts compare only the statutory elements of the offenses in question, and not examine the actual proof in a particular case. Leske, 957 P.2d at 1036.

The majority decides that theft does not include the offense of aggravated motor vehicle theft because theft can be committed by taking "anything of value," whereas second degree aggravated motor vehicle theft requires the taking of a "motor vehicle." While the majority is correct in noting that under the theft statute the object taken can be "anything of value" whereas under the second degree aggravated motor vehicle theft the object taken must be a motor vehicle, this distinction does not prevent second degree aggravated motor vehicle theft from being a lesser-included offense of theft. Rather, the pertinent inquiry is whether the statutory element of taking "a motor vehicle" is included within the statutory element of taking "anything of value."

Under theft, the statutory element defining the item taken as "anything of value" is very broad in that it does not specify a particular item. The theft statute alternates use of "thing of value" and "anything of value." § 18-4-401(1)(a). Within the definition section for title 18, "thing of value" includes real property, tangible and intangible, personal property, contract rights, chos-es in action, services, confidential information, medical records information, and any rights of use or enjoyment connected therewith. § 18-1-901(8)(r), 6 CRS. (2002). A motor vehicle is tangible personal property and therefore, a thing of value.

The fact that a defendant may be charged with theft of something other than a motor vehicle only becomes important when determining whether to give the lesser-included offense instruction to the jury. A defendant is not entitled to a lesser-included offense instruction just because second degree aggravated motor vehicle theft is a lesser-included offense of theft. Rather, a defendant is entitled to an instruction on a lesser-included offense only if there is some evidence tending to establish the lesser-included offense and there is a rational basis upon which the jury may acquit the defendant of the greater offense but convict him or her of the lesser. People v. Naranjo, 200 Colo. 1, 6, 612 P.2d 1099, 1102 (1980). Therefore, in a case where the defendant is charged with theft of something other than a motor vehicle, the defendant would not be entitled to an instruction on the lesser-included offense of second degree motor vehicle theft because the evidence, that something other than a motor vehicle was taken, would not support a motor vehicle theft instruction.

Here, the issue is not whether the lesser-included offense instruction should have been given under the facts of this case, but whether second degree aggravated motor vehicle theft is a lesser-included offense of theft. Thus, this court is determining whether the statutory element of obtaining or exercising control over a motor vehicle, as required by the statute for second degree aggravated motor vehicle theft, is necessarily included within the statutory element of obtaining and exercising control over anything of value, without regard to the facts of the case. Because the category of "anything of value" includes everything of value, and because a motor vehicle is a thing of value, I would find that the statutory element "a motor vehicle" is included within the category of "anything of value." Accordingly, the element of obtaining or exercising control over a motor vehicle is included within the element of obtaining or exercising control over anything of value.

The fact that "anything of value" also entails any number of other things besides motor vehicles is not significant here; greater offenses may encompass elements or parts of elements not required by the lesser-included offense if all of the elements of the lesser-included offense are necessarily included within the elements of the greater offense. Thus, I disagree with the majority that merely because theft may include objects other than motor vehicles, second degree aggravated motor vehicle theft may not be a lesser-included offense of theft.

Conclusion

First, the fact that theft contains the "intent to permanently deprive," an element not present in second degree aggravated motor vehicle theft, does not prevent second degree aggravated motor vehicle theft from being a lesser-included offense of theft. Second, the proper application of the strict elements test results in the conclusion that the taking a "motor vehicle" element of second degree aggravated motor vehicle theft is wholly included within the taking "anything of value" element of theft. Thus, I conclude second degree aggravated motor vehicle theft is a lesser-included offense of theft and I would reverse the court of appeals. Accordingly, I respectfully dissent.

I am authorized to say that Chief Justice MULLARKEY and Justice BENDER join in this dissent.

      . See § 18-4-409(4), 6 C.R.S. (2002).

      . See § 18-4-401(1)(a), 6 C.R.S. (2002).

      . See § 18-1-408(3), 6 C.R.S. (2002).

      . Section 18-1-408(1) expressly provides that, "[when any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." Section 18-1-408(5)(a) states that "[al defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when [ilt is established by proof of the same or less than all the facts required to establish the commission of the offense charged."

      . Subsection (5)(a) of section 18-1-408 defines a lesser-included offense as an offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged."

      . There is even an argument that our legislature anticipates a different test. See § 18-1-408(5)(a) (referring to "proof of the same or less than all the facts").

      . We note that in People v. Westrum, 624 P.2d 1302, 1304 (Colo.1981), this court, engaging in an equal protection analysis, recognized a "crucial difference" between the same two statutes at issue in this case.

      . The majority discusses felony murder at length. However, as the majority ultimately recognizes, the felony murder analysis is not pertinent to the issues before us.