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. Peo*297ple 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 stat*298utory 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 re*299quires the taking of a "motor vehicle."1 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 *300aggravated 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.. 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.