Attorneys for the undocumented immigrant acquitted of murder in the death of Kate Steinle will appeal the only conviction to come from the trial for being a felon in possession of a firearm, the Public Defender’s Office said Monday.
A San Francisco jury found 45-year-old Jose Ines Garcia Zarate not guilty of murder, manslaughter and assault charges last Thursday, but convicted him of a gun possession charge for handling the weapon at Pier 14 on July 1, 2015.
The verdict has outraged the right-wing media and President Donald Trump, who called the decision a “miscarriage of justice” and used it to strengthen his push for a border wall with Mexico.
Attorneys Matt Gonzalez and Francisco Ugarte argued the shooting was an accidental discharge that unfolded when Garcia Zarate found the gun wrapped in a rag on the pier. The bullet ricocheted off the ground and struck Steinle in the back before Garcia Zarate threw the gun into the San Francisco Bay.
If the jury convicted Garcia Zarate of gun possession for handling the weapon when he threw it off the pier, the defense plans to argue Judge Samuel K. Feng should have instructed the jury differently on the gun possession charge.
“The attorneys in this case are seeking to clarify the verdict,” said Tamara Aparton, a spokesperson for the Public Defender’s Office.
“They want to see if the jury based the conviction on the split-second that he had the gun after it fired and he realized what it was, because if that is the case, the jury should have been instructed on momentary possession.”
Jurors did not speak with the media following the verdict, so the reasons behind the decision are unknown.
Under the momentary possession jury instruction, a defendant cannot be found guilty of being a felon in possession of a firearm if they held the gun only for a moment and only to dispose of the weapon.
In the case of Garcia Zarate, Gonzalez has argued he threw the gun off the pier in shock.
The appeal is just one of several loose ends remaining after the verdict. Feng has yet to determine a sentence for Garcia Zarate, and questions remain as to the charges Garcia Zarate will face in immigration court.
It’s also unclear whether the verdict would have an impact on deportation proceedings for Garcia Zarate.
Garcia Zarate is facing a sentence of six months, 12 months or three years for being a felon in possession of a firearm. But he could be released without serving any prison time because he has been in County Jail since July 2015.
On Monday, Sheriff Vicki Hennessy told the San Francisco Examiner she would cooperate with federal immigration authorities when Garcia Zarate is released from jail.
“This is a criminal warrant, and we have always said that we will cooperate with a criminal warrant,” Hennessy said. “In this case we will and the federal government has known that for some. It is a criminal warrant.”
Authorities transferred Garcia Zarate to County Jail from a federal prison to face a 20-year-old drug charge in March 2015.
Garcia Zarate was released from jail in April 2015 under then-Sheriff Ross Mirkarimi because the District Attorney’s Office dismissed the case and U.S. Immigrations and Customs Enforcement did not have a federal warrant for his arrest.
Steinle was shot three months later.
About two weeks after the Steinle shooting, U.S. District Judge for the Western District of Texas Alia Moses issued an arrest warrant for Garcia Zarate July 14, 2015, ensuring that he will face immigration authorities upon release.
The warrant is based on Garcia Zarate violating the terms of his supervised release from prison, where he served a 46-month term for illegal re-entry into the U.S., according to court records.
Garcia Zarate was sentenced to three years of supervised release beginning in March 2015.
Last Friday, a federal probation officer added the felony firearm possession conviction as a reason for the warrant, according to court records.
U.S. Attorney General Jeff Sessions is reportedly weighing an illegal re-entry charge or charge related to a violation of his supervised release.
Garcia Zarate will be back in San Francisco Superior Court Dec. 14 for a status hearing.
S.F. Examiner Staff Writer Laura Waxmann contributed to this report.