The undocumented Mexican immigrant acquitted of murder and manslaughter in the controversial death of 32-year-old Kate Steinle is due back in San Francisco Superior Court this week for a sentencing hearing.
Judge Samuel K. Feng is scheduled to sentence 45-year-old Jose Ines Garcia Zarate on Friday for the only conviction jurors returned against the defendant for being a felon in possession of a firearm.
The jury found Garcia Zarate not guilty of all other charges, including first-degree murder, in a Nov. 30 decision that outraged President Donald Trump and right-wing media.
Defense attorney Matt Gonzalez said after trial that the maximum sentence for being a felon in possession of a firearm is less than the time Garcia Zarate has already served in County Jail since the shooting.
Garcia Zarate shot Steinle on July 1, 2015. The bullet ricocheted off Pier 14 and tumbled through the air for 78 feet before striking Steinle in the back while she walked with her father.
Gonzalez claimed the shooting was an accident that happened when Garcia Zarate found the gun wrapped in a rag on the pier. Prosecutor Diana Garcia failed to prove counts of murder, manslaughter and assault with a semi-automatic firearm beyond a reasonable doubt.
But Garcia Zarate is not expected to walk free.
Garcia Zarate must next face two charges in U.S. District Court for the Northern District of California for allegedly being a felon in possession of a firearm and being an undocumented immigrant in possession of a firearm.
There is also a federal warrant out for his arrest that San Francisco Sheriff Vicki Hennessy said she would honor by notifying the U.S. Marshal when Garcia Zarate is eligible for release.
On Friday, Feng is also set to decide whether Garcia Zarate will be retried for being a felon in possession of a firearm after the defense filed a motion for a new trial on Dec. 14.
In the filing, Gonzalez argued Feng should have instructed the jury differently on the gun possession charge.
Under a jury instruction called momentary possession, a defendant could be found not guilty of being a felon in possession of a firearm if they are holding the weapon to discard it.
Garcia Zarate threw the gun off the pier moments after the shooting.
If the motion for a new trial fails, Gonzalez plans to appeal the verdict.
For being a felon in possession of a firearm, Feng could sentence Garcia Zarate to six months, 12 months or three years of incarceration.