With lawyers on both sides fearing they could lose the case, Loren Herzog accepted a plea bargain on Wednesday that could make him a free man in less than eight years.
Herzog, 38, pleaded guilty in San Joaquin County Superior Court to a charge of voluntary manslaughter in the death of Clements resident Cyndi Vanderheiden, being an accessory in three other murders and furnishing methamphetamine to Vanderheiden shortly before she died.
He was sentenced to 14 years in prison, but he will get credit for time served and good behavior.
Prosecuting attorney Thomas Testa and Deputy Public Defender Peter Fox negotiated the plea bargain for more than a week, Testa said. The details were ironed out by about 9:30 Monday morning.
Talking in a very soft-spoken voice, Herzog told Judge F. Clark Sueyres in court that he accepted the plea bargain.
Plea ‘not easy’
“It was not easy for him to plead guilty for something he didn’t do,” Herzog’s sister, Lorie Stoker, said in a prepared statement before news reporters and TV cameras outside the courtroom.
“We do know he is coming home,” Stoker added.
Vanderheiden’s father, John Vanderheiden, spoke inside the courtroom, voicing concerns that the plea bargain was extremely lenient.
“Loren has admitted killing my daughter,” John Vanderheiden told the court. “Fourteen years is very cheap for a person’s life.”
Fox has continually maintained that Herzog didn’t kill Vanderheiden. Instead, Herzog witnessed her murder, Fox said.
Kim Vanderheiden, Cyndi Vanderheiden’s sister, said later Wednesday she doesn’t like the shorter sentence because she fears for her safety if Herzog is released from prison, but she accepts the deal.
“I don’t think he’ll make it out,” Kim Vanderheiden said in a phone interview. “He got stabbed once.”
Herzog, a resident of Peters, located outside Linden, was sentenced to 11 years in prison for the voluntary manslaughter plea in Vanderheiden’s death, eight months for each of the three accessory pleas and one year for the methamphetamine charge.
However, Sueyres gave Herzog credit for time served — two years, 9.5 months in San Joaquin and Santa Clara county jails, two years, 9.5 months for time served in state prison and 5.1 months for good conduct in county jail.
Additionally, Herzog will receive credit for good conduct in state prison. That amount of time will be determined by the California Department of Corrections, but the maximum amount will be 15 percent of time served, or 5.4 months, Testa said.
That reduces the remaining time served to seven years, five months, if the Department of Corrrections allows the maximum credit allowed.
Sueyres said that Herzog will not be awarded one-third or one-half time credit for good conduct because Herzog is a violent felon. The actual amount of time served will be at the California Department of Corrections’ discretion, according to Testa.
Jury trial deemed risky
Testa said in court Wednesday that he continues to believe that Herzog is guilty of murder, but it’s too uncertain whether a jury would convict him.
Deputy District attorney Thomas Testa talks to the media in the San Joaquin County Court House on Wednesday after Loren Herzog accepted a plea bargain. (Casey Freeman/News-Sentinel)
“The people (of California) think that Loren Herzog might be able to pull the wool over the eyes of a jury,” Testa told the court.
He added that he would rather accept the plea bargain than risk a jury ruling Herzog innocent of a murder charge.
Testa said he also sought the plea bargain because the appellate court disallowed about 75 percent of the incriminating statements Herzog made to sheriff’s investigators in 1999 and that Shermantine refused to testify in the Herzog trial in exchange from dropping the death penalty.
“We had to make some concessions,” Fox said outside the courtroom. “Either side could have won (the trial); either side could have lost.”
The accessory pleas were in connection to the 1984 murders of Henry Howell, 45, of Santa Clara, Paul Cavanaugh, 31, of Stockton, and Howard King III, 35, of Lathrop.
Herzog, 38, was convicted of three counts of first-degree murder — Vanderheiden, Cavanaugh and King — in 2001 by a Santa Clara County jury and sentenced to 78 years in state prison. The final three years of his sentence was for being an accessory to Howell’s murder.
In August, the 6th District Court of Appeal tossed out Herzog’s convictions, ruling that Herzog was “coerced” while being interviewed by San Joaquin County Sheriff’s investigators in 1999. The court also ordered a retrial on the Vanderheiden slaying.
Sueyres said he appreciated that the attorneys from both sides were willing to compromise, but he was still troubled about Wednesday’s proceedings.
“Sometimes the court system is called upon to make decisions that are very difficult,” Sueyres said after Herzog accepted the reduced sentence. “The legal responsibility is not always the same as the moral responsibility.”
Sueyres noted that Herzog was a friend of Vanderheiden’s who would protect her the morning of Nov. 14, 1998, when Herzog, Shermantine and Vanderheiden were together shortly before she was killed.
“She instinctively counted on (Herzog) to guarantee her safety,” Sueyres said. “All we can do is apply the law.”
Shermantine offered deal
Testa offered to drop the death penalty against Shermantine as early as 2001, before Shermantine was sentenced, if Shermantine would tell where the bodies of Cyndi Vanderheiden and Chevelle “Chevy” Wheeler are located. One of Shermantine’s convictions was for Wheeler’s murder.
Vanderheiden, 25, disappeared in 1998 and is presumed dead, even though her body has never been found.
However, Shermantine demanded at the time that a $20,000 trust fund be established for his two children. The District Attorney’s Office refused.
Testa made a similar offer after the appellate court ruling in August, but he wrote a letter to Shermantine that was hand-delivered to him earlier this month, Testa said. That letter offered to drop the death penalty if Shermantine would show where the bodies are located and testify in what was to be the upcoming Herzog retrial.
Shermantine responded with a letter with Tuesday’s date on it, saying that Shermantine feared for his life — either because Herzog may set something up or because other death row inmates at San Quentin State Prison would be angry at Shermantine being a “snitch,” Testa said.
In addition to the prison sentence, Sueyres placed Herzog on three years of parole upon his release and issued a restraining order forbidding him from being with 100 yards of John Vanderheiden, his wife, Terri, and daughter, Kim.
Herzog is to make “no contact, directly or indirectly,” Sueyres said, and there is no expiration date for the restraining order.
Herzog was also ordered to register with law enforcement as a narcotics offender and pay a $50,000 restitution to the Vanderheiden family. Asked outside the courtroom where Herzog would find that money, Testa said the Vanderheidens don’t expect to get that kind of cash from Herzog, but it covers any revenue Herzog might get from a book deal or TV interview.
Contact reporter Ross Farrow at firstname.lastname@example.org.