San Francisco prosecutors have an opportunity to decide whether to retry the undocumented immigrant who fatally shot Kate Steinle after an appeals court overturned his conviction for illegal gun possession.
The case of Jose Ines Garcia Zarate is back in San Francisco Superior Court on Tuesday with defense attorneys calling on the District Attorney’s Office to not seek a second trial.
Garcia Zarate was acquitted of all charges except being a felon in possession of a firearm in November 2017 after his attorneys argued that he shot Steinle on accident in July 2015.
But the First District Court of Appeal overturned even that conviction in August, finding that the trial judge improperly instructed jurors on a legal defense for firearms possession.
The decision means that the District Attorney’s Office can either seek to dismiss the case against Garcia Zarate, or hold a new trial for illegal gun possession. The office can also request a bench warrant for his arrest pending the outcome of a federal case against him.
Matt Gonzalez, chief attorney for the Public Defender’s Office, said prosecutors have no reason to try Garcia Zarate again in state court.
“The obvious thing for them to do is dismiss the case in light of the fact that he has already served the max sentence” for being a felon in possession of a firearm, said Gonzalez, who represented Garcia Zarate at trial.
But Gonzalez said prosecutors could instead “pass the buck” to newly elected District Attorney Chesa Boudin by scheduling a date for next month, when interim District Attorney Suzy Loftus is leaving office.
“They are not going to set it for trial unless they want to let Chesa dismiss it,” Gonzalez said. “If they are grown ups, they are just going to walk in and dismiss the case.”
A spokesperson for the District Attorney’s Office previously said prosecutors were “weighing” options for moving forward and declined to comment further Monday.
Garcia Zarate was acquitted of charges including murder, manslaughter and assault under former District Attorney George Gascon, who stepped down Oct. 18 to run for office in Los Angeles.
Garcia Zarate is currently in custody awaiting trial in federal court next month.
After the not guilty verdicts, the U.S. Attorney’s Office charged him with being a felon in possession of a firearm and being an “alien” in possession of a firearm.
Garcia Zarate shot Steinle as she walked on Pier 14 with her father on July 1, 2015. He had recently been released from County Jail after being sent to San Francisco by federal authorities for an old marijuana case.
An undocumented Mexican national, he became a talking point on immigration for then candidate Donald Trump during the 2016 presidential election.
Francisco Ugarte, an attorney with the Public Defender’s Office who also defended Garcia Zarate at trial, said a second trial by San Francisco prosecutors would be “a waste of resources.”
“There is really no reason they should want an additional prosecution,” Ugarte said.
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