Kate Steinle shooter, acquitted of murder, now wants gun possession conviction overturned

The illegal immigrant who fatally shot Kate Steinle on a San Francisco pier in 2015 — and was acquitted of murdering her two years later — has appealed his conviction for illegally possessing the gun used in the shooting, insisting momentary and accidental gun possession is not a crime, the San Francisco Chronicle reported.

Jurors believed Jose Ines Garcia Zarate "did not commit a willful act in firing the gun" and "that it went off accidentally just as the defense contended," his lawyer Cliff Gardner said in a filing Friday with the First District Court of Appeal in San Francisco, the paper noted.

In asking the court to overturn his client's conviction and ordering a new trial, Gardner also contended that Superior Court Judge Samuel Feng refused to instruct the jury that "momentary possession" of a gun is not a crime, and therefore the jury had no other option but convicting his client of illegal firearms possession by a previously convicted felon, the Chronicle added.

Gardner's appeal also noted that jurors asked Feng during deliberations if knowingly possessing a gun was enough for a conviction and if there was "any time requirement for possession," the paper said.

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Gardner said the judge should have instructed the jury, as the defense requested, that Garcia Zarate was not guilty if he had possessed the gun "for a momentary or transitory period," solely to dispose of it, and had not intended to prevent police from seizing it.

Feng rejected that instruction, citing evidence that Garcia Zarate had told a police officer he fired the gun. But Gardner said there was strong evidence that "he disposed of the firearm as soon as he learned what it was."

Garcia Zarate, 46, remains in prison and is awaiting deportation and possible federal prosecution, the paper said.

What's the background?

Steinle was fatally wounded as she walked with her father on Pier 14 in July 2015, the Chronicle said, adding that the bullet bounced off the pier's concrete floor then struck the 32-year-old Steinle in the back. Garcia Zarate was holding the gun when it went off, the paper said.

The gun had been stolen four days earlier from the car of a U.S. Bureau of Land Management ranger, the Chronicle said, but the culprit hasn't been established. Prosecutors said Garcia Zarate brought the gun to the shooting site, the paper reported, but his lawyers said the weapon was wrapped in a T-shirt or cloth that their client — unaware of its contents — picked up from underneath a bench and then threw in the bay after it unexpectedly discharged.

Garcia Zarate had been released from federal prison four months earlier after serving 46 months for felony re-entry to the U.S. after a previous deportation to Mexico, the Chronicle said. He'd been deported a total of five times.

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Immigration officials had transferred him to San Francisco County Jail because of a local warrant alleging he had fled to avoid marijuana charges in 1995, but city prosecutors dropped that case, and the Sheriff's Department then released Garcia Zarate despite a federal request to hold him for deportation. Then-Sheriff Ross Mirkarimi said he interpreted the city's sanctuary policy, which limited local cooperation with immigration enforcement, as barring him from notifying federal agents.

President Donald Trump called the outcome of the Garcia Zarate case "disgraceful" and "a complete travesty of justice." Then-Attorney General Jeff Sessions blasted officials of San Francisco — a sanctuary city for illegal immigrants — after the verdict.

"When jurisdictions choose to return criminal aliens to the streets rather than turning them over to federal immigration authorities, they put the public's safety at risk," Sessions said in a statement. "San Francisco's decision to protect criminal aliens led to the preventable and heartbreaking death of Kate Steinle."

He added: "While the State of California sought a murder charge for the man who caused Ms. Steinle's death — a man who would not have been on the streets of San Francisco if the city simply honored an ICE detainer — the people ultimately convicted him of felon in possession of a firearm."