 Zachary Vanderhorst, left, with his attorneys Rebecca Young and Patrick Murray (Photo: Richard Bui)
On July 3, Allen Warner answered his door at his apartment on Ellis Street. A man asked, “Is Cecil Turner there?” Warner tried to close the door, but the man pushed his way in, followed by a second man holding a gun. They blindfolded Warner and tied him up, then began rifling through the apartment. Warner’s roommate, Spiro Bouphidis and his friend, Gail Z., walked in on the assailants. They took Bouphidis’s wallet and some jewelry from Gail Z., then forced them into a back room and made them lie face down on a bed.
One of the men began raping Gail Z. She would later tell the police that during the sexual assault, she heard the assailants call each other “E.J.” and “Randy,” although she also said she might have been confused about what she heard. The second assailant told the man who was assaulting Gail Z. that they needed to leave, and the men left the building with the items they had stolen, driving away in Warner’s car. Police later found the car in the parking lot of a public-housing project about five minutes away.
The victims described both assailants as Black men in their 20s, each at least 5 foot 10 inches tall.
The second home invasion occurred on July 16 about a block away on Terra Vista Avenue. Eight friends were having a dinner party at the home of Robert Bendorff and James Van Buskirk when two Black men forced their way in with guns. They tied up the guests, covered their faces with blankets, and stole their money and jewelry. The victims described one assailant as a light-skinned Black man with a short afro, between 20 and 25 years old, about 5 foot 4 inches to 5 foot 6 inches and weighing 140 pounds. They described the second as a Black man, 20 to 30 years old, 6 foot 2 inches, 190-210 pounds, wearing a ski mask but having a large, well-trimmed mustache.
On July 31, police arrested Darryl Jones for possession of a billy club. Jones had been considered a suspect in the home invasions because he matched the general description, lived in the area, and had a previous robbery arrest. While Jones was being booked, police noticed he was wearing two silver rings that matched Gail Z.’s description of her stolen jewelry. In addition, Jones’s nickname, “D.J.,” sounded similar to the “E.J.” that Gail Z. said she heard. Police placed Jones in a lineup. Warner was unable to make an identification. Gail Z. did not view a lineup. The police never asked Gail Z. to look at the jewelry, which was returned to Jones when he was released from custody.
The third home invasion occurred on September 12 at a home on Fell Street. Two men forced their way into John Klees’s home. While the robbery was underway, a neighbor named Allan McArthur heard noises and came to investigate. He was shot to death in a back room.
The homicide added pressure to the San Francisco Police Department to solve these crimes. Because Warner’s car had been found in the public-housing neighborhood near these home invasions, the police began bringing in young men from that community and questioning them about the crimes.
Around September 24, one of the men told homicide detectives that 19-year-old Zachary Vanderhorst and a minor committed the Fell Street robbery that ended with a murder.
At the time, Vanderhorst was already in jail. He, the minor, and several others had been arrested on September 22 and charged with strong-arm robbery. On September 25 and September 26, police placed Vanderhorst in several live lineups before victims of the three home invasions. In one lineup, he was forced to wear a bright-yellow jacket that didn’t fit. In another, he was joined by the minor and other robbery suspects.
Two of the three victims of the Ellis Street robbery, Warner and Bouphidis, viewed two lineups. Bouphidis selected a filler in the first lineup and made no selection in the second. Warner picked Vanderhorst from the first lineup, even though he had described the assailant as being 4-5 inches taller than Vanderhorst.
Three of the victims from the Terra Vista home invasion viewed lineups. Two made no selection; Bendorff selected Vanderhorst as the shorter of the two assailants, even though Vanderhorst wasn’t light skinned.
Klees, from the Fell Street home invasion, viewed at least one photo array and two lineups. He had described the assailant who shot McArthur as a Black man, 17-20 years old, six feet tall, and weighing about 150 pounds. Klees said he could not describe the second, unarmed man, other than that he was Black. Klees also told police he was extremely near-sighted, with his vision rapidly deteriorating after three or four feet.
In the photo array, which took place on September 13, Klees picked Jones as one of the assailants. Police records don’t say what other suspects were in the array. In the first lineup, on September 25, Klees viewed suspects from at least 10 feet away and made a tentative identification of Vanderhorst, indicated by a question mark next to Vanderhorst’s name. In the second lineup, a day later, Klees made no identification.
Separately, the police were able to lift two separate fingerprints from the Fell Street home. A technician reported that Vanderhorst’s left index finger was the source of one of the prints and the minor’s left thumb was the source of the other.
Following grand jury proceedings, the San Francisco District Attorney charged Vanderhorst with first-degree murder, burglary, and attempted robbery for the Fell Street home invasion; three counts of robbery, and single counts of rape and burglary for the Ellis Street home invasions; and five counts of robbery and one count of burglary for the Terra Vista home invasion. The minor, who was 16 years old, was charged as a juvenile in the Fell Street incident.
After Vanderhorst’s arraignment, Paul Hong in the San Francisco Office of the Public Defender was assigned to represent him.
On December 17, 1974, Vanderhorst appeared before Judge Claude Perasso of San Francisco County Superior Court to enter a guilty plea. Vanderhorst agreed to plead guilty to all charges, and the state said it would not seek the death penalty. Hong urged the court to sentence Vanderhorst under more lenient guidelines for youthful offenders, which would make him eligible for parole in only six months as opposed to seven years.
But Assistant District Attorney James Lassart told Judge Perasso that the state would oppose any sentencing under these guidelines. Judge Perasso said he would take the matter under advisement, and if he found that the guidelines didn’t apply, Vanderhorst could withdraw his plea.
The parties met again on December 31, 1974. Lassart told the court that case law excluded first-degree murder from the youthful-offender guideline. Judge Perasso agreed, and he allowed Vanderhorst to withdraw his plea.
Hong said at the hearing that he and Lassart, in the presence of Ed Bell, the minor’s attorney, had negotiated a new plea. Now, Vanderhorst agreed to plead guilty to first-degree murder (Fell Street), burglary and rape (Ellis Street), and robbery (Terra Vista Avenue). At the hearing, Hong advised Vanderhorst to accept the state’s offer to avoid the death penalty, but Lassart repeatedly told the court that threat had been removed prior to – rather than during – any plea negotiations between him and Hong.
Judge Perasso sentenced Vanderhorst to four concurrent life terms on January 7, 1975. The minor’s case was resolved in juvenile court, where a judge dismissed the case, stating a thumbprint was insufficient evidence.
Vanderhorst became eligible for parole in seven years. Hong told him he would likely be released in 10-12 years. That didn’t happen. Vanderhorst was denied parole 18 times. Seventeen times, he admitted his involvement in the Fell Street home invasion but maintained his innocence in the other two home invasions. The parole board said this showed a lack of “insight” and remorse. His family told him to admit to the crimes so he could be paroled. At his eighteenth parole hearing, in 2018, Vanderhorst said he participated in all the crimes. The parole board praised him for “making progress,” then denied him parole for another three years.
In 2018, the California State Legislature passed a law that limited accomplice liability for felony murder. Under the old law, a participant in a crime that resulted in a death could be prosecuted for murder even if he did not directly cause the death. The new law said felony murder only applied if the person was the actual killer, aided the actual killer in the murder, or was a major participant in the underlying felony and acted with reckless indifference. The law was retroactive, providing a mechanism for persons to challenge their felony-murder convictions.
Vanderhorst, represented by Rebecca Young, an attorney with the Office of the Public Defender in San Francisco, filed a motion to challenge his felony-murder conviction. She was assisted by attorneys Khari Tilley and Patrick Murray, of the Keker, Van Nest & Peters law firm.
The motion said that Vanderhorst had no direct involvement in McArthur’s death; he was in the front of the apartment wrapping up the wires on a television when the minor shot McArthur. The motion included two letters that one of the detectives who investigated the Fell Street murder had written to the parole board. In the first letter, from 1990, the detective said Vanderhorst was rehabilitated and should be released. The second, from 1995, said that the minor was the shooter.
During the preparation for the hearing on this motion, Young became aware of Vanderhorst’s claims of innocence in the Ellis Street and Terra Vista Avenue home invasions. She also discovered problems in the legal representation Vanderhorst received from Hong. But these issues could not be included in the motion to vacate his felony-murder conviction.
On January 24, 2020, a judge vacated Vanderhorst’s felony-murder conviction. A week later, he was resentenced on the underlying burglary at the Fell Street apartment. On February 7, 2020, he was released on parole after serving more than 45 years in prison. Because of the rape conviction, Vanderhorst was required to register as a sex offender.
On February 17, 2021, Vanderhorst moved to vacate his convictions tied to the other home invasions. An investigator had tracked down Jones, who was now in a nursing home after suffering two strokes. He had no memory of the Terra Vista robbery, but he remembered the Ellis Street robbery, where Gail Z. was raped. Asked about Vanderhorst’s involvement, Jones said, “It ain’t right. He wasn’t there.”
The Ellis Street robbery occurred on July 3, 1974. Vanderhorst’s younger sister, LaDonna, said Zachary was with his mother at the family’s home, with his hair in curlers under a heat lamp. LaDonna said that their mother had agreed to style his hair in exchange for Vanderhorst agreeing to drive everybody to the Alameda County Fair on July 4. She showed investigators a picture from that day, with Vanderhorst’s hair in tight curls.
The Terra Vista Avenue home invasion took place at the end of July. The assailant said to be Vanderhorst was described as a light-skinned Black man with a short afro. But LaDonna Vanderhorst said her brother’s hair would still have been in curls at that time.
Separately, the motion also claimed Hong had provided ineffective assistance of counsel, failing to interview the state’s witnesses to show the flaws in their identifications and failing to establish Vanderhorst’s alibi for the nights of these home invasions. Hong would later state in a declaration that he had no recollection of asking his client about the Ellis and Terra Vista crimes, because his “main focus was avoiding the death penalty for this young man.” Hong continued to insist that prosecutors continued to use the threat of the death penalty as a bargaining chip, even at the second plea hearing.
Separately, Bell’s presence in Vanderhorst’s negotiations was deceptive and a clear conflict of interest, the motion said. Joseph Spaeth, a public defender who assisted Hong, recalled visiting Vanderhorst in a holding cell at the courthouse. When Spaeth entered the room, Bell came in behind him and said he was an attorney asked by “Vanderhorst’s family” to be there. Vanderhorst told Spaeth and Bell that he didn’t want to plead to things he hadn’t done. Spaeth said Bell started berating Vanderhorst, urging him to plead to the charges. Spaeth said he didn’t intervene, because he thought Bell was simply a family friend, not the minor’s attorney.
Vanderhorst had originally asserted these claims in a petition for a writ of habeas corpus filed on September 9, 2020, but the court denied the petition without considering the merits. It said that a habeas petition didn’t apply because Vanderhorst was no longer in custody for the convictions from which he sought relief.
On October 18, 2021, the court vacated Vanderhorst’s rape and burglary convictions for the Ellis Street home invasion and the robbery conviction for the Terra Vista Avenue home invasion. The charges were dismissed that same day.
Young said, “It’s unconscionable that lawyers could plead a young impoverished man to crimes as serious as rape and burglary when their client didn’t match the suspect description and when police had no forensic or physical evidence tying him to the crimes.”
In a statement released by the public defender’s office, Vanderhorst said: “I am so grateful to my dream team. Don’t ever plead guilty to something you didn’t do, no matter what your lawyer tells you. You will never be able to undo that plea and you will regret it deeply. Because of Patrick and Rebecca, I feel like I can breathe again.”
Vanderhorst subsequently filed a claim for compensation from the state of California.
– Ken Otterbourg
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