SAN FRANCISCO – A San Francisco judge is not ready to rule just yet on whether Zachary Vanderhorst acted with reckless indifference in his involvement in a 1974 robbery in which his co-defendant, David Carter, 16 at the time, shot and killed the victim. He did find after in another hearing on Friday that there was not proof beyond a reasonable doubt that Mr. Vanderhorst was the actual killer.
The co-defendant, Mr. Carter, took the stand two weeks ago, but took the fifth as to his conduct on September 12, 1974. Judge Brendan Conroy questioned his attorney, noting that he had already been tried for charges back in 1974, however the attorney said that she was not prepared to go forward without a continuance, having just been appointed to represent Mr. Carter.
On Friday, Judge Conroy was prepared to rule on two motions – a motion to exclude testimony from the grand jury and a motion that asked him to find that Mr. Carter, not Mr. Vanderhorst, was the actual killer.
With regard to the grand jury testimony, attorney Rebecca Young, representing Mr. Vanderhorst, argued that the problem with using the grand jury testimony is that it is not subject to cross-examination like preliminary hearing testimony or trial testimony.
At issue was whether the testimony from John Please identifying Mr. Vanderhorst at the scene was admissible. Judge Conroy found that, even taking it face value, Mr. Please never made a definitive ID of Mr. Vanderhorst as the shooter.
Judge Conroy stated, “There is not proof beyond a reasonable doubt that he made an ID of Mr. Vanderhorst (as the shooter) at any time.”
Judge Conroy then noted that in Mr. Vanderhorst’s plea to felony 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. Judge Conroy at this point indicated his inclination to rule that Mr. Vanderhorst was not the actual shooter.
The question about whether he acted with reckless indifference, however, was more interesting. 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.”
Rebecca Young 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 has to make a finding – and on several occasions declined to do that over the strenuous objections of Ms. Young.
He granted the motion not to consider the grand jury testimony and that Mr. Vanderhorst was not the direct killer, however, he took arguments from Ms. Young on the issue of reckless indifference into consideration.
She noted that there was a lack of admission to personal use other during a single parole hearing in which, after years of denial, Mr. Vanderhorst, attempting to gain parole, admitted to everything.
Repeatedly, 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.
Judge Conroy noted that there is no evidence beyond a reasonable doubt that he used the firearm. He again noted the abstract of judgment. He said “while that’s not a factual finding, you can’t ignore it.”
He noted that over the years Mr. Vanderhorst had maintained that he had not pulled the trigger. Finally in 2018, he took full responsibility. But the judge also discounted this as a factor of attempting to gain parole.
He said that really there were only two pieces of evidence that pointed to his personal use of the firearm – the fact that he was present at the scene and the 2018 statement to the parole board.
But there was far more evidence pointing away from it.
The question now is whether Mr. Vanderhorst’s actions represent reckless indifference to human life. The prosecution does not believe they can prove that beyond a reasonable doubt. The judge, however, wants to fully evaluate the evidence himself before making a ruling.
Arguments will be heard on this point on January 24 when Judge Conroy expects to make a determination and, if resentencing is granted, that would be done on January 31.
—David M. Greenwald reporting
