San Francisco Chronicle
The man who was convicted of carrying a gun but acquitted of murder in the shooting of Kate Steinle on a San Francisco Bay pier never actually possessed the weapon in a legal sense and should be given a new trial on that count, the public defender’s office said Thursday.
Jose Ines Garcia Zarate, a 45-year-old homeless undocumented immigrant whose release from city jail before the shooting intensified a debate over sanctuary policies, was found guilty Nov. 30 of being a felon in possession of a firearm in connection with Steinle’s death on July 1, 2015.
Garcia Zarate was acquitted of murder, manslaughter and assault charges after defense attorneys asserted that the gun went off accidentally after he found it wrapped in a rag on the pier. The pistol had been stolen four days earlier from the nearby parked car of a federal ranger.
The verdict shocked many observers, and President Trump called it “disgraceful.” But defense attorneys said their client should have been fully acquitted if jurors found credence in the argument that the shooting wasn’t intentional.
The motion filed Thursday in San Francisco Superior Court stated that Judge Samuel Feng failed to, among other things, explain to the jury that “momentary” possession of a weapon is not necessarily a crime if a person only seeks to dispose of it and does not intend to keep law enforcement from seizing it.
“The court has misdirected the jury in a matter of law,” wrote lead defense attorney Matt Gonzalez.
Steinle, 32, was killed by a bullet that ricocheted off the pier’s concrete walkway and struck her in the back, piercing her heart. She died in the arms of her father. Prosecutors argued that the defendant intentionally fired the pistol, and that the Sig Sauer model cannot be discharged unless somebody firmly pulls the trigger. Prosecutors also suggested Garcia Zarate threw away the gun in an effort to avoid detection.
Defense attorneys conceded that Garcia Zarate tossed the gun in the bay after the shooting, but said he had thrown it away “to stop it from continuing to shoot.”
Alex Bastian, an assistant district attorney and office spokesman, said Thursday that District Attorney George Gascón had not yet reviewed the motion and could not comment on its substance.
“We will review the basis for the motion and respond accordingly,” Bastian said.
Motions for new trials are routinely filed after convictions. If Judge Feng agrees with the defense, Garcia Zarate could be retried on the possession charge alone. Jurors did not publicly explain their decision on that charge, and generally cannot be asked about their deliberations to settle conflicts during appeals.
Garcia Zarate, who remains in San Francisco jail, is scheduled to return to court Jan. 5, when the judge will rule on the motion. If a new trial is denied, the defendant will be sentenced to up to three years in state prison on the gun-possession charge. He has already satisfied most, if not all, of that term since his arrest. But his legal problems are not over.
A federal grand jury recently indicted Garcia Zarate on charges of being a felon in possession of a firearm and ammunition, and of being an undocumented immigrant in possession of a gun and ammunition. If convicted, he faces up to 10 years in federal prison before his potential sixth deportation.
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