SAN FRANCISCO – He has been in custody since October 1974, but by next week he can finally be a free man after SF Superior Court Judge Brendan Conroy ruled that Zachary Vanderhorst did not act in reckless indifference to human life – one week after he ruled he was was not the actual killer.
His re-sentencing is set for Friday, January 31, after which he could be freed from prison.
Judge Conroy last week had found that there was not proof beyond a reasonable doubt that Mr. Vanderhorst, who participated in a residential burglary on October 12, 1974 was the actual killer.
Among the evidence that Judge Conroy noted last week was that in the plea to murder, the firearm and special circumstance findings were dropped. The abstract of judgment went so far as to note that he was not armed with a deadly weapon nor did he carry a concealed weapon at the time of the offense.
There was no question he was present at the robbery, but there was no evidence that he used a firearm or possessed one.
The question then was whether the People could meet the burden of proving beyond a reasonable doubt that Mr. Vanderhorst acted in reckless indifference to human life.
Last week, Assistant DA Allison McBeth told Judge Conroy that the People were submitting on the issue of reckless indifference to human life.
She stated, “The People do not believe we can prove beyond a reasonable doubt that he acted in reckless indifference to human life.”
Public Defender Rebecca Young, representing Mr. Vanderhorst, believed that this should have been enough to rule in Mr. Vanderhorst’s favor and grant re-sentencing. However, Judge Conroy disagreed and stated that the court still had to make a finding – and on several occasions declined to do that over the 
strenuous objections of Ms. Young.
In her brief remarks on Friday, Ms. Young pointed out that Mr. Vanderhorst did not meet the Banks-Clark factors. The court had ruled in Banks, “The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.”
In Clark, it had ruled, “[I]t encompasses a willingness to kill (or to assist in another killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.”
Here, Ms. Young argued that he didn’t plan to kill or use lethal force with the co-defendant who was armed. He did not go into the building. His participation was limited to the residential burglary, not the murder.
Here Judge Conroy largely agreed. He noted that Mr. Vanderhorst was in fact a major participant in the underlying felony – he knew there was a robbery, a home invasion, and he knew that Mr. Carter would be armed.
However, there was no evidence that he planned to kill the victim. There was no conspiracy to kill, the judge pointed out.
There was no evidence that Mr. Vanderhorst had a firearm, although there was some evidence that he was aware of Mr. Carter being armed.
While the record in this case is a bit limited since the case never came to trial, Judge Conroy noted that there were two possible theories of what occurred – one is that it could have been Mr. Vanderhorst in the front room away from the actual murder or it could have been Mr. Vanderhorst who was armed with the gun and shot the victim.
However, the judge noted because there are two conflicting theories, both of which were reasonable, he was forced to side with the theory most favorable to the defendant.
Judge Conroy further noted that he may have heard the shot while fleeing or he didn’t even know about it until later.
The judge said that, given that he was not near the location of shooting – based on his acceptance of that theory, Mr. Vanderhorst could not have intervened and he could not done much about assisting the victim.
Therefore, Judge Conroy ruled, “There is no evidence that he acted in reckless indifference to human life.” The “standard has not been met.” And he granted the petition for resentencing and relief.
Mr. Vanderhorst had faced parole a whopping 18 times since his 1974 conviction. According to his attorney, Mr. Vanderhorst told the parole board “sorry, but I won’t admit to something I didn’t do.” However, in 2018, his spirit broken, having been in prison since a young man, he said he was the shooter.
Expert testimony was presented that showed that parole boards are not generally willing to grant parole without acknowledgment of responsibility, which made it hard for someone like Mr. Vanderhorst who had not participated in the killing to do so. His 2018 acceptance of responsibility – also unsuccessful for the board – was the lone exception and the judge accepted that explanation, particularly since there was no other real evidence of his being the actual killer.
Sentencing will occur on January 31. His attorney noted that, in addition to the residential burglary, he was convicted of two counts of Penal Code section 211 (robbery) and one count of Penal Code section 261 (rape).
His attorney indicated that they intend to pursue reversals of those counts as wrongful convictions. In order to file a Habeas petition, he must be on parole.
Regardless, he has served more than enough time to be released following formal resentencing on the 31st and be placed on parole as allowable under the language of SB 1437.
—David M. Greenwald reporting
