On Wednesday Zachary Vanderhorst will be a free man for the first time since late 1974, when he was sentenced on December 31, 1974, just six weeks after being indicted for murder and other charges.
Judge Brendan Conroy resentenced him under PC section 1170.95(E) after ruling in the previous weeks that his conviction under PC section 187 for murder would be overturned due to changes in felony murder laws. The judge had found there was not proof beyond a reasonable doubt that he was either the actual killer or had acted in reckless indifference to human life.
Instead, the judge sentenced him on Friday for residential burglary and three years – he had previously pled to two counts of armed robbery and a rape. However, his attorney, SF Public Defender Rebecca Young argued that this was a wrongful conviction and she intends to file Habeas papers.
In short, Mr. Vanderhorst has spent 45 years in prison on a murder conviction where he did not commit the crime, a rape for which his defense team believes he was not there and not a participant in, and was denied parole 18 times, in large part because he did not admit to responsibility for the crimes that he has steadfastly claimed he did not commit.
During the sentencing, the prosecutor, Allison McBeth, read a victim impact statement from the rape victim over the objections of the defense.
During the statement she said that the defendant had “raped me physically and with his gun” and that she was “prepared to die” and remains to this day “too 
frightened to be alone.
“I would not begrudge his freedom,” her statement read, but she pointed out “he tortured me” and she said he cut off her clothing and “raped me with his gun.”
Ms. Young responded that “we regret what happened to the victim,” but she said, “It wasn’t Mr. Vanderhorst. He wasn’t there at all.”
Inadequate Representation in 1974
Judge Conroy noted to Mr. Vanderhorst that he was well represented in this proceeding – though it appears less so back in 1974. He noted that “the People were very fair with you” and “your attorneys tirelessly uncovered evidence accepted in this case.”
Deputy Public Defender Rebecca Young told the Vanguard, “I’m very ecstatic about the outcome.” But she said, “We’re not finished. So for me it’s not really over yet.”
She stated, “The injustice that caused his conviction that just got vacated, extended to the other counts (in the) indictment.”
One of the big issues she cited was “he really didn’t receive adequate representation back in 1974.”
The date of the offense was September 12, 1974. He wasn’t indicted until October 25, 1974. He originally pleaded guilty on December 12, 1974.
“His actual legal representation on this case started somewhere around October 25, 1974 and the public defender pled him guilty to 15 counts on December 12. The court vacated that guilty plea because he said ‘the promises that had been made to Zachary were illegal’ and they came on December 31 and entered a second guilty plea to just the four or five counts.”
Ms. Young said that even at this point, “Zachary adamantly and vociferously told his lawyers that he was not the shooter” and “not involved in the other robberies with which he was charged.”
She said that “the head lawyer on the case did no investigation and didn’t take his client’s protestation of innocence seriously.” She said, “He just pled him to everything and promised him… he would go to board of prison terms in seven years and would probably be out in 12 years.”
“It’s pretty egregious,” she said.
18 Parole Denials
Rebecca Young told the Vanguard, “I woke up this morning and I said to myself, this case proves the lie of the board of prison terms that they don’t require you to accept responsibility in order to receive parole.”
She said, “They absolutely do require you admit.”
One of the keys to this case, as Judge Conroy noted, was that the defense went through all of the parole hearing – all 18 denials.
He called the 18th one where he acknowledged responsibility – falsely – “a coerced confession.”
The problem, as Rebecca Young pointed out to the Vanguard, was “unless he admitted to the shooting, which he did not do, the board of prison terms would never ever believe that he had gained ‘insight’ in his commitment offense. And lacking insight in his commitment offense, he therefore necessarily lacked remorse. Thus he was unworthy of parole.”
Rebecca Young said, “Their bs, I don’t know what else to call it, that you don’t have to admit responsibility for the killing in order to receive a parole date, it’s malarkey. Anyone who believes them, should be named Pollyanna.”
Seventeen times Zachary Vanderhorst denied responsibility for the murder.
According to Rebeccas Young, “Over and over again, he says, ‘I don’t know how to tell you in any way, I didn’t have a gun and I didn’t kill anybody. I can’t sit here and admit to something that I did not do.’”
He said at one point, “God help me, I would admit it if I did it, because I know it would help me to get out.”
“He finally caved,” she explained. “What he told me when we met… ‘You know they just broke my spirit.’” She said that he told her, “You don’t know how much it killed me to say that I shot that man, when I didn’t shoot him.”
As it turns out, Judge Conroy in assessing whether he was the actual killer, took this into account and, when he weighed the evidence of his being the actual killer, discounted that in favor of the 17 denials and other evidence pointing away from it, including the abstract of judgment that found he was not the shooter.
Wrongful Conviction
Rebecca Young believes that Mr. Vanderhorst was wrongly convicted of the rape and the other robberies and will be filing a Habeas petition on his behalf to vacate those convictions.
She explained to the Vanguard that the description of the two assailants did not match that of Mr. Vanderhorst. Both men were described as being close to or over 6 feet while Mr. Vanderhorst is a much slighter and shorter 5-6. That description was given by multiple witnesses inside that apartment.
“The descriptions do not match Zachary (Vanderhorst),” Ms. Young said.
She said, “(This) is why the failure to investigate by his original public defender is fairly egregious.”
She added, “It’s not off by a couple of inches. It’s off by six inches.”
Ms. Young notes from day one he denied it was him. She noted that at the 17 parole board hearings, he admits to going into one apartment that he thought would be a burglary and turned into a home invasion robbery, but he always denied the other charges – even though he faced no exposure for admitting them.
“They told him, you’ve already done your time on the rape and robbery,” she said. “They said, we can’t extract another pound of flesh out of you. He’s like, it doesn’t matter, ‘I didn’t do it.’ He continued to deny it.”
One of the two participants has said, “I can exclude Zachary as being present.”
During the victim impact statement, she indicated that she heard someone saying the name “Vandy” during the rape.
But the problem, as Ms. Young pointed out, “That’s a change from what she originally told the police.”
She originally told the police that she heard “DJ” or “BJ.”
Ms. Young knows who DJ is – he was a crime partner of David Carter, the co-defendant in the murder case.
“She never said Vandy, ever, she said ‘Randy.’”
Ms. Young said that the names were changing at various parole hearings and at some point it changed from “Randy to Vandy.”
“Time just does things to your memory,” she said. “You start to adjust your memory with other facts and details you pick up along the way.”
The impact statement therefore contradicts both what she told the Grand Jury and the police.
Rebecca Young said that the DA’s office has not been able to locate the original rape kit, which would have allowed them to actually test the evidence to see if it was Mr. Vanderhorst.
Ms. Young told the Vanguard that the rape kit was never tested.
She said they went to Mr. Vanderhorst said that if they test the rape kit and it comes up with his DNA, he would have to register as a sex offender for the rest of his life. At the same time, she said, they could fight it without the rape kit.
He told her, “Test the rape kit, I’m not in there.”
Judge’s Admonishment
Judge Conroy also had a warning for Mr. Vanderhorst – as he has issued to all defendants re-sentenced in his court under the new law.
He noted that Mr. Vanderhorst, now in his early to mid 60s, is about the same age as himself and that he has “witnessed the arc of criminal justice reform,” where notions of juvenile justice have come back to where they had once been in 1974.
Further, he said, “He is the beneficiary of the new law” and this is a chance to get out. But he warned him, if he is released and re-offends, that he is the representative of the new law and could well become the rationale for those who want to turn back the clock.
He warned, “We are one Richard Allen Davis or Willie Horton away from going back to the way it was.”
—David M. Greenwald reporting
