Sentence of Death for Child Slayer Is Upheld : Courts: Theodore Frank raped, tortured and finally strangled a 2-year-old Ventura County girl in 1978 in one of the state’s most notorious crimes.

The California Supreme Court, ruling in one of the most notorious capital cases in state history, on Thursday upheld the death sentence of Theodore Francis Frank for the torture-murder of a 2-year-old Ventura County girl in 1978.

A previous death sentence for Frank had been overturned by the high court in 1985 in a controversial decision that was cited in the successful campaign to defeat Chief Justice Rose Elizabeth Bird in the election of November, 1986.

Frank, 55, was convicted and sentenced to die for the murder of Amy Sue Seitz of Camarillo six weeks after he had been released from Atascadero State Hospital. He had a 20-year history of child molestation.

Evidence indicated that the girl had been kidnaped from the home of her baby-sitter, bound hand and foot, forced to drink beer, and then raped, tortured and mutilated with locking pliers before she was strangled.

The court, in a unanimous opinion by Chief Justice Malcolm M. Lucas, rejected Frank’s bid for a new trial on grounds that the judge at his penalty retrial improperly heard pleas for a death sentence from the victim’s grandmother, a leader in the campaign against Bird.

The justices also turned down Frank’s argument that the jury should not have been allowed to see photos of the victim’s battered body. The court said there was no reasonable possibility the photos affected the jury’s verdict.

Lucas quoted the prosecutor, former Ventura County Dist. Atty. Thomas J. Hutchins, now a Municipal Court judge, who after displaying the photos told the jury: “You don’t have to be angry; you don’t have to be emotional; I think all you have to do is reflect on the purpose of the death penalty, on its function, on its justice.”

Thursday’s decision was welcomed by state Deputy Atty. Gen. Jeffrey J. Koch. “Theodore Frank is an absolute monster,” he said. “This is a case where the punishment surely fits the crime.” Koch noted that Frank still may raise time-consuming appeals in the federal courts--and that it could still be a “long time” before he goes to the gas chamber.

State Deputy Public Defender Kent Barkhurst said Frank would seek a rehearing before the state high court and, if that fails, appeal to the U.S. Supreme Court. Barkhurst expressed hope that the notoriety of the case would not influence the courts, but added: “This was a high-profile case and the tenor of the times sometimes has an effect on the courts in general.”

Frank was initially convicted and sentenced to death in 1980 in Orange County, where the case was transferred on a change of venue. Five years later, the state Supreme Court upheld Frank’s conviction--over Bird’s lone dissent--but voted 4 to 2 to reverse the death sentence. The justices found that police had improperly seized a diary that later was cited to jurors in the prosecution’s demand for a death sentence.

The writings, made by Frank when he was hospitalized years before the murder, included a passage saying: “I want to give pain to these little children. I want to molest them. I want to be sadistic. I want to harm them.”

Two years later a penalty retrial was held--this time without evidence from the diary--and a jury again returned a verdict of death. The victim’s grandmother, Patricia A. Linebaugh, one of the leaders in the election campaign against Bird, appeared at the sentencing hearing to urge Superior Court Judge John J. Ryan to uphold the verdict and impose death, rather than the alternative of life in prison without parole.