Execution Set April 3 for Harris : Justice: The convicted murderer’s lawyers, conceding that they are “up against the gun now,” are still pursuing possible appeals to keep him from the gas chamber.

Murderer Robert Alton Harris, convicted of the 1978 killings of two teen-age San Diego boys, was ordered Monday to die April 3 in the gas chamber at San Quentin, setting the stage for California’s first execution in 23 years.

San Diego Superior Court Judge Jesus Rodriguez announced the date at a four-minute hearing Monday, a procedural formality that had been expected since last month’s rejection by the U.S. Supreme Court of a broad challenge to Harris’ death sentence.

The April 3 date actually is Harris’ fourth scheduled execution date, but his first in eight years, San Diego prosecutors said. This time around, after more than 10 years of appeals, even Harris’ San Diego lawyers conceded Monday that the end may be near.

“We’re really up against the gun now,” attorney Charles M. Sevilla said after the hearing.

Sevilla said he and Charles M. McCabe, Harris’ other lawyer, will file a request “fairly soon” with the California Supreme Court to put off the execution while it considers a new appeal the attorneys filed with the court Jan. 5.

In that appeal, Harris contends, in part, that it would be cruel and unusual punishment to kill him because he has changed for the better in prison. Even if the state Supreme Court agrees to hear the new appeal, Harris must still persuade the panel to put off the execution now that the date has been set.

“We hope the court is not losing patience with us,” McCabe said. “We are not being dilatory. We are not simply trying to delay the inevitable. There are strong constitutional issues that need to be resolved.”

Prosecutors contend that Harris, whose appeals have been turned down four times by the U.S. Supreme Court and whose death sentence was affirmed in 1981 by the California Supreme Court, long ago exhausted any conceivable legal grounds for appeal.

But Louis R. Hanoian, a deputy attorney general handling the Harris case, said it is possible that Harris’ lawyers could orchestrate further delay. If the state Supreme Court rejects Harris’ new appeal, defense lawyers are virtually certain to turn to the federal courts for mercy, Hanoian said.

“I’d like to think that we’re near the end of the road, but as long as there are courts willing to listen to arguments, I can’t judge whether we’re near the end of that road,” Hanoian said.

Harris, 37, said in an interview last week with a San Diego radio station that his “spirits are up” but he tries not to think about San Quentin’s gas chamber. Still, he said, “If it does come to me dying, then I’ll just have to die.”

Harris was arrested July 5, 1978, by Steve Baker, a San Diego police officer who did not know at the time that Harris’ victims were Baker’s son, Michael, and Michael’s friend, John Mayeski.

The 16-year-old boys had been eating hamburgers in the parking lot of a Jack in the Box in San Diego’s Mira Mesa neighborhood when Harris kidnaped them at gunpoint so that he could steal their car and use it in a bank robbery.

He ordered them to drive to a canyon near Miramar Reservoir, where he killed them. Later, he finished their half-eaten hamburgers.

A San Diego Superior Court jury convicted Harris of murder in January, 1979. He was sentenced to death by San Diego Superior Court Judge Eli Levenson in March, 1979.

During the nearly 11 years he has been on Death Row, Harris’ case has progressed farther through the court system than that of any of California’s 272 other condemned prisoners. Sevilla said Monday that he recognizes that “a lot rides on this case.”

If Harris actually is put to death, Sevilla said, an “emotional barrier will be broken which will psychologically open the doors for many more (executions) to come.”

Prosecutors, analyzing every detail connected to Harris’ execution date, said the choice of April 3 was a good one. It is near the end of the 60-day time frame the law gave the judge in which to pick a date, meaning there could be no argument that Harris did not have every opportunity to protest, Hanoian said.

In addition, April 3, the 57th day and a Tuesday, is a better option than Friday, April 6, the 60th day, because bringing San Quentin “back to normalcy” after Harris’ execution would be easier during the week with a full complement of guards, rather than on a partly staffed weekend, Hanoian said.

Executions at San Quentin traditionally have been held on either Tuesday or Friday.