Rader

I. INTRODUCTION

Defendant, Kenneth Charles Rader, enjoyed a meal at a steak house and then paid $100 of the bill with counterfeit $20 bills. He left the restaurant and was arrested shortly thereafter. He stands convicted of one count of second degree burglary (Pen. Code, § 459); two counts of felony theft (§§ 484, subd. (a), 666) and two counts of forgery (§§ 472, 476). Defendant admitted he had sustained a prior violent and serious conviction within the meaning of sections 666, subdivision (b)(1), 667, subdivisions (b) through (i) and 1170.12. Defendant also admitted he had sustained prior nonviolent and nonserious theft-related felony convictions within the meaning of section 666, subdivisions (a) and (b). Defendant was sentenced to five years four months in state prison. In the published portion of this opinion, we hold defendant can only be convicted of a single count of theft. Further, we conclude that defendant may be convicted of felony petty theft rather than the misdemeanor charge of defrauding an innkeeper (or in this case a restaurant).

II. THE EVIDENCE

On Friday, May 25, 2012, at approximately 2:00 p.m., defendant entered an Outback Steakhouse restaurant in…