dissenting.
In holding that joyriding is a lesser included offense of theft, the majority rejects State v. Parsons, 70 Ariz. 399, 407, 222 P.2d 637, 642-43 (1950), which held otherwise. The statutes have been amended since 1950, but the holding of Parsons remains valid.
In the current statutes, the meaning of “deprive” is critical to both theft and joyriding. As defined in A.R.S. section 13-1801(A)(4), “deprive” includes either perma*625nent deprivation or various lesser deprivations. The theft statute requires “with the intent to deprive” and the joyriding statute requires “without intent permanently to deprive.” Here is the problem: The evidence in a given case could support both forms of intent. The lesser crime is therefore not included in the greater, it overlaps with the greater. That a person can arguably be guilty of both joyriding and theft is shown by the facts of this case.
Appellant received permission to borrow the truck for twenty minutes to go cash his paycheck, then disappeared with the truck. About three days later, Appellant’s girlfriend called from California and told the victim she would return the truck if certain arrangements were made. After negotiations, the girlfriend agreed to drop the truck in Yuma and the victim agreed to pay her bus fare back to San Diego. Neither Appellant nor the girlfriend testified, and there is no direct evidence of Appellant’s state of mind as he headed for California with the truck. Although arguably fitting the definition of joyriding, these facts seem a better fit with what the legislature had in mind when not requiring “with intent permanently to deprive” for a theft conviction.
The legislature could readily make joyriding a lesser included offense of theft by adding “permanently” to the theft statute (and modifying the definition of “deprive”), or by removing it from the joyriding statute—which is what the majority has done. Without “permanently” in the joyriding statute, the majority is right: If the State proves “with the intent to deprive” (and all other elements), it proves theft; if it does not, it proves joyriding.
When following the majority, trial courts should therefore remove “permanently” from the joyriding jury instruction. Otherwise, jury confusion and verdict ambiguity are assured in a case such as this, where the evidence supports defendant’s claim that he acted “without intent permanently to deprive” for joyriding, and the evidence also supports the State’s claim that defendant acted “with the intent to deprive” for theft.
CONCLUSION
Although the majority reaches a sensible result, I think we get there only by overruling a supreme court opinion and amending a statute. I therefore respectfully dissent.