Can a prosecutor by artful pleading deny a defendant's due process right to plead guilty to the lesser of grand theft and the greater of robbery?

This flies in the face of a legion of cases holding the prosecution cannot by artful pleading deny a defendant his due process right to avoid "all or nothing" jury choices when some version of the evidence will support [28 Cal.App.4th 532] conviction of a lesser offense. (People v. Geiger 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 and cases cited therein.) The majority does not claim the evidence would not support the lesser of grand theft person as well as the greater of robbery. Instead it depends entirely on the procedural hurdle the prosecution erected when it elected to omit a separate robbery count from its charging document. But as discussed above that hurdle is not impassable. It is still feasible to give a proper lesser included instruction on the predicate felony. A prosecutor's whim or deliberate strategy is not enough to justify denial of the due process right to lesser included instructions. Accordingly,

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1 Statutory references, unless otherwise noted, are to the Penal Code.

2 A codefendant not tried with appellant and not a party to this appeal.

3 The information spells the victim's name this way. Appellant and respondent spell his name Sweetzer.