Will Racke, DCNF
The illegal immigrant who was acquitted of Kate Steinle’s murder is seeking a new trial to overturn his conviction on a firearm charge in the same case.
Jose Ines Garcia Zarate never technically possessed the firearm that discharged and killed Steinle, and should be given a new trial on that count, lawyers for the San Francisco public defender’s office said in a motion Thursday.
Garcia Zarate’s lawyers blamed the gun conviction on San Francisco Judge Samuel Feng, who they say failed to properly instruct the jury that “momentary” possession of a weapon is not a crime if the person only seeks to dispose of it and does not prevent law enforcement from seizing it.
“The court has misdirected the jury in a matter of law,” wrote lead defense attorney Matt Gonzalez, according to SFgate.com
Last month, Garcia Zarate was acquitted of murder, manslaughter and assault charges in the Steinle killing, a stunning result that drew outrage from top Trump administration officials and reignited the debate over sanctuary cities.
At trial, Garcia Zarate admitted to firing the shot that killed Steinle, but the defense contended that the gun “went off” in his hands after he found it underneath a bench on the San Francisco pier. Defense lawyers said he did not intend to fire the gun, which had been stolen four days earlier from the car of a federal agent.
The argument was enough to sway a San Francisco jury, which returned a guilty verdict only on the state charge of felon in possession of a weapon. Now, Garcia Zarate’s defense team is asking the court to grant a second trial in hope that a new jury will reverse that decision.
Motions for new trials are fairly common after a defendant is found guilty. If Judge Feng grants the motion, Garcia Zarate would be retried on the gun charge along. It the motion is denied, he will be sentenced to up to three years in prison.
Even if the gun conviction stands, Garcia Zarate is not likely to serve any further state prison time, because he has already served two and a half years following his arrest in the Steinle shooting.
Garcia Zarate now faces a federal a federal trial after a grand jury recently indicted him on charges of being a felon in possession of a firearm and ammunition, and of being an illegal alien in possession of the same. If convicted, he faces up to 10 years in federal prison before being deported for the sixth time.
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