Execution Set Dec. 6 for Child’s Murderer : Courts: Theodore Frank, convicted of killing Amy Sue Seitz 13 years ago, could still delay the sentence with appeals.

An Orange County Superior Court judge has set Dec. 6 as the execution date for Theodore Frank, who tortured and murdered 2 1/2-year-old Amy Sue Seitz of Camarillo 13 years ago.

Judge John J. Ryan issued the death warrant Friday morning in Santa Ana, decreeing that Frank should be put to death in the gas chamber at San Quentin state prison for Amy Sue’s murder.

“We got the execution date set, and what that means in a nutshell is that he’s a step closer to the execution,” said Assistant Dist. Atty. Colleen (Toy) White. “But by no means do most of us think that will be the actual date, because he still has the federal appellate process to go through.”

Frank, 56, had appealed his case to the state and U.S. supreme courts without success.

But appeals are still available to Frank, who learned of the execution date in his cell at San Quentin, said state Deputy Atty. Gen. Jeffrey Koch.

Frank’s attorney could petition the U.S. District Court in Los Angeles for a writ of habeas corpus, a ruling that the verdict or sentence violates his constitutional rights. Such a case would take two to four years to work its way through the federal court system before it was resolved, Koch said.

The U.S. Supreme Court ruled earlier this year that if a conviction has been unsuccessfully challenged in state court, it may be heard in federal court on a habeas corpus petition only in an “extraordinary instance.”

Frank’s attorney, state Deputy Public Defender Kent Barkhurst, said that some time before Dec. 6 he will petition the federal court for an order to stay Frank’s execution.

Frank was convicted in 1980 of kidnapping Amy Sue from her baby-sitter’s front yard on March 14, 1978.

He forced beer down the little girl’s throat, then tortured and mutilated her with vises, raped her, strangled her and dumped her body in Topanga Canyon.

Just six weeks before the murder, Frank had been declared cured and was released from Atascadero State Psychiatric Hospital, where he had been kept from 1974 to 1978 for sexually assaulting a 4-year-old Bakersfield girl.

After his arrest in Amy Sue’s death, Frank admitted that he had molested 100 to 150 children in four states between 1958 and 1974, and after leaving Atascadero in 1978.

In 1985, the California Supreme Court, led by Chief Justice Rose Bird, overturned Frank’s death sentence. But the penalty phase of Frank’s case was held again and resulted in a second death sentence.

This summer, Frank petitioned the U.S. Supreme Court to hear his appeal, but on June 10, the court refused to do so.

“We weren’t terribly optimistic they would grant us any relief,” Barkhurst said recently.

Orange County Judge Ryan originally was scheduled to issue Frank’s death warrant on Sept. 27 and set the execution date for Nov. 22.

However, prosecutors agreed to reschedule the hearing for Friday after a court clerk neglected to send a notice of the proceedings to Frank.

Both the original trial and the second penalty phase were held in Orange County after a motion for a change of venue from Ventura County.