(concurring in the result) — I agree with the majority's statement that the Legislature considers violation of the rental statute to involve less culpable conduct than that conduct which constitutes a violation of the first degree theft statute. That fact is evidenced by the differing penalties attached to each. While the Legislature may have made a valid distinction in culpability between failure to return a rental vehicle and general theft of a vehicle, it unfortunately did not create a statutory elemental distinction. In both cases the person must commit first degree theft before violating either statute.
In my opinion, the petitioner's conduct was of the type the Legislature envisioned when it passed the first degree theft statute. The petitioner rented the car for only 1 day, utilizing an alias and false identification (an Ohio driver's license in the name Gary Roberts), took the vehicle out of this jurisdiction and abandoned it in Nebraska without making any effort to contact the rental agency. His conduct evidences a clear intent to appropriate the property for his own use with no intention of returning it to its rightful owner.
Unfortunately, the Legislature enacted a statute that requires proof of first degree theft before criminal possession of rental property can be found. Thus, a thief who has the foresight to pay the minimal rental amount to obtain initial possession can abscond with the rental property knowing he will not and cannot be charged with first degree theft — a class B felony.
I do not think that this anomalous result was intended by the Legislature. Nonetheless, because the Legislature chose the language it did, I concur in the result.
In joining the majority's result I too rely on State v. Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982). Unlike the majority, however, I feel that proof of notice of demand is not irrelevant. The fact that RCW 9A:56.095 contains a notice requirement is the principal reason I join the majority's result. To hold otherwise would give the prosecutor the option to proceed against a person who rented a car, *585even if the rental agency fails to send the required notice. This would effectively repeal the rental statute. Absent this notice requirement, I am not ready to concede, as is the majority, that the general special rule would lead to the same result. Cf. State v. Sherman, 98 Wn.2d 53, 61 n.6, 653 P.2d 612 (1982); United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). That issue is best left to another day.
Dolliver, J., and Cunningham, J. Pro Tern., concur with Brachtenbach, J.