In this July 7, 2015 file photo, Jose Ines Garcia Zarate, right, is led into the courtroom for his arraignment at the Hall of Justice in San Francisco. (Michael Macor/San Francisco Chronicle via AP, Pool, File)

Appeals court overturns sole conviction in Kate Steinle shooting

A state appeals court on Friday overturned the only conviction that San Francisco prosecutors obtained in the politically volatile case against an undocumented immigrant who fired a ricocheted bullet that killed Kate Steinle.

The court found that the trial judge failed to properly instruct the jury on a legal defense for Jose Ines Garcia Zarate, a Mexican citizen who was acquitted of all charges except being a felon in possession of a firearm.

Defense attorneys argued during trial that Garcia Zarate unknowingly picked up a gun that was wrapped in a rag when the weapon fired a bullet that ricocheted off Pier 14 and struck Steinle on July 1, 2015.

Garcia Zarate’s acquittal elicited outrage from President Donald Trump, who seized upon the case to call for stricter immigration controls during his presidential campaign.

“This further exposes Trump’s false narrative on immigration,” said Francisco Ugarte, one of the attorneys who defended Garcia Zarate. “Three independent judges who reviewed the trial records reversed the decision. We were representing an innocent man and unfortunately this became an immigration issue and this shouldn’t have been an immigration issue.”

Shortly after the verdict, federal prosecutors filed two similar charges against Garcia Zarate for being a felon in possession of a firearm and for being an undocumented immigrant in possession of a firearm.

Garcia Zarate has pleaded not guilty to the charges and is being held in custody pending trial.

On Friday, the appeals court ruled that San Francisco Superior Court Judge Samuel Feng should have given the jury the instruction on momentary possession. The instruction says in part that it is not illegal for a felon to briefly possess a firearm if only to dispose of it.

“We find substantial evidence presented at trial permits at least two reasonable inferences: one, that defendant knew he held a gun and did not possess it solely with an intent to dispose of it, and two, that he was unaware he held a gun until it fired, at which time he threw it away to stop it from firing,” Associate Justice Sandra L. Margulies wrote in the appeals court decision. “Viewing the evidence in the light most favorable to the defense, as we must, we conclude the trial court erred in failing to give the momentary possession instruction.”

Matt Gonzalez, the lead attorney for Garcia Zarate, argued at trial that his client found the gun under a seat on the pier and threw the firearm into the water seconds after it went off.

“When the verdict came in there was a lot of confusion about how he could be acquitted of murder but convicted of gun possession,” Gonzalez said Friday. “What people didn’t get was that the jury didn’t actually didn’t think that he brought the gun to the pier… the jury convicted him for possessing a gun after it fired for a split second.”

Gonzalez said the jury asked during deliberations how long Garcia Zarate had to hold the gun for him to be guilty of being a felon in possession of a firearm — affirming his argument that the jury convicted him for possessing the gun for the seconds that came after the shot.

The gun was stolen from the parked vehicle of a federal agent, but Garcia Zarate was never accused of the burglary.

“If the jury were to be properly instructed they would have found him not guilty across the board,” Gonzalez said.

District Attorney George Gascon’s office came under fire after the acquittal on murder, manslaughter and assault. Gascon was criticized for pursuing first-degree murder instead of just second-degree or manslaughter.

Following Friday’s decision, San Francisco prosecutors are expected to have the opportunity to decide whether to charge Garcia Zarate again with the felon in possession charge.

“We’re weighing our options,” said Alex Bastian, a spokesperson for the District Attorney’s Office.

Leif Dautch, a candidate for San Francisco district attorney, represented the state in the appeal and has previously been among those critical of Gascon’s handling of the case.

Dautch on Friday said he is on the leave from the California Attorney General’s Office, and referred all requests for comment to the office. A spokesperson said only that the office is reviewing the decision.

Dautch’s opponents in the race were quick to respond to the decision.

“This case obviously continues to be heartbreaking for San Francisco,” said Lauren Feuerborn, a campaign manager for district attorney candidate Suzy Loftus. “Leif had one job, and he failed.”

Ugarte, the defense attorney for Garcia Zarate, said Dautch had recently been quoted as saying the case took sanctuary city policy back 20 years.

“I think he’s wrong. If anything this strengthened sanctuary,” Ugarte said. “What the case did was it exposed Donald Trump’s false narrative around immigration. He was not interested in justice, he was interested in demonizing immigrants.”

Bay City News contributed to this report.

mbarba@sfexaminer.com

sgaiser@sfexaminer.com

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