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The charge of bias in Chief Justice Bird's vote against the constitutionality of the state's "use-a-gun, go-to-prison" law loses its impact when the facts of the case are considered. In the case, People v. Tanner, Harold Tanner, a former security guard at a Seven-Eleven store, decided to stage a mock robbery of the store because it had cancelled its contract with the private security company he was working for. Tanner said that he believed staging the robbery would convince the store owner to renew the contract. During the commission of the robbery he used an unloaded, nonfunctional gun, took $40, then immediately told the clerk to sound the alarm and call the police.1
Chief Justice Bird's vote against the constitutionality of the "use-a-gun, go-to-prison" law reflected her bias in favor of the criminally accused 2 and undercut the deterrent effect the "use-a-gun" law was intended to have.3
The factual history of People v. Tanner cited above has been verified.4
The key constitutional question raised by the Tanner case was who has the ultimate sentencing authority -- the Legislature or the courts? In her opinion in People v. Tanner, Chief Justice Bird wrote, "The Court should not substitute its judgment for that of the Legislature when an issue of statutory interpretation is involved...[However] [i]t is the constitutional duty of this court to ensure that the essential functions of the judicial branch of government are safeguarded from encroachment by the co-equal legislative or executive branches. (Cal. Const., art. III, sec. 3.) Three times in this decade this court has unanimously held that sentencing courts alone have the power to determine whether a penalty should be enhanced.5
The "use-a-gun, go-to-prison" law was upheld in a 4-3 decision.6
1 Framed, op. cit., pp. 85-86, and West's California Reporter, People v. Tanner, 24 Cal. 3d (514).
2 Republican Associates of Southern California, op. cit., campaign literature.
3 Los Angeles Times, "Court Upsets Mandatory Sentencing," by Phillip Hager, December 23, 1978, I: p. 1.
4 People v. Tanner, supra.