State Justices Affirm Penalty for Use of Gun : Sentencing: The high court rejects defense lawyers’ claim that judges can invoke a ‘furtherance of justice’ statute and refuse to lengthen terms. The tougher penalty is required by a 1989 law.

The state Supreme Court, assuring stronger penalties for gun-wielding criminals, ruled Monday that trial judges cannot refuse to impose longer prison terms for use of a firearm in a crime.

The court, in an opinion by Chief Justice Malcolm M. Lucas, held unanimously that under a 1989 state law, judges must sentence felons who use guns to an extra three to five years in prison.

The justices rejected contentions by defense lawyers that under a separate statute judges could reject the additional term “in the furtherance of justice.”

The decision represented a victory for prosecutors, who contended that despite the 1989 law, some trial judges were refusing to impose longer terms, and as a result, gun-bearing offenders could be back on the streets in little more than a year after conviction.

E. Thomas Dunn, an Orange County prosecutor representing the California District Attorneys Assn., noted that guns are used in countless thousands of violent crimes annually.

“The increasing use of guns is just staggering,” said Dunn. “The message from the Legislature was to discourage the use of guns. . . . Perhaps a few thinking defendants will get that message.”

State Deputy Atty. Gen. Ronald S. Matthias said the decision would resolve conflicts among the state’s appeal courts and make clear that the aim of the law was to assure longer terms. “This gives requisite respect to legislative intent,” said Matthias.

The case before the court involved Derrick Leon Thomas, who was 18 at the time of his trial. In January, 1990, he and a teen-age companion robbed a Palo Alto ice cream parlor of $160 as Thomas brandished a .22-caliber revolver.

Thomas, a high school senior who was about to enter the armed services, and his confederate fled on bicycles and were arrested a few minutes later. A counselor who interviewed Thomas called the act “isolated and impulsive.”

An attorney for Thomas asked the trial judge not to impose a prison term for use of a gun. But the judge refused, imposing two years for the robbery and an additional three years for use of the firearm. A state Court of Appeal upheld the sentence.

Defense attorney George L. Schraer of San Diego called Monday’s decision “unfortunate,” saying the three-year sentence enhancement was inappropriate for the young first-time offender. The defendant will serve a total of five years, the attorney noted, while a co-defendant who did not brandish a gun will have served 60 days.

“I think the court’s ruling was directly contrary to what the Legislature intended,” said Schraer.

In Monday’s decision, Lucas noted that the statute eliminating judicial discretion to reject the additional prison time was part of a wide-ranging package of legislation aimed at cracking down on firearms users.

“We think it highly unlikely the Legislature intended nonetheless to preserve broad judicial authority under (another statute) to strike a firearm use enhancement ‘in furtherance of justice,’ ” he wrote.

The dispute raised issues similar to those in one of the most controversial cases in the state high court’s history, People vs. Tanner.

In that case, the court, then under Chief Justice Rose Elizabeth Bird, was accused of withholding until after the 1978 election a controversial decision allowing judges to grant probation to gun-wielding felons. A state commission ultimately cleared the court of wrongdoing and the justices later reversed themselves, holding that gun-users could not receive probation.

In other action Monday, the justices, in a 6-1 decision, upheld the death sentence imposed on Alfred Arthur Sandoval, convicted of four counts of murder in gang-related killings in Los Angeles in 1984.