by WILLIAM MANSELL
Aug 31, 2019
CALIFORNIA (ABC News) - The lone conviction for an undocumented immigrant whose actions resulted in the shooting death of a 32-year-old woman in 2015 has been overturned by an appellate court in California.
A jury acquitted Jose Ines Garcia-Zarate, 46, in 2017 of first degree murder, second degree murder, involuntary manslaughter, and assault with a semiautomatic firearm for his role in the death of Kate Steinle.
Garcia-Zarate was convicted, however, on the charge of felon in possession of a firearm.
During jury deliberations, jury members asked the court for the definition of possession and if there was a time requirement for possession. [Defense counsel Cliff Gardner] argued during the appeal that the trial court failed to instruct the jury that it could acquit Garcia-Zarate because he only possessed the gun for a moment.
On Friday, the First Appellate Court of Appeals in California, in a 3-0 decision, agreed with that defense.
“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. Because the error was prejudicial, we are compelled as a matter of law to reverse,” the court’s opinion says.
"These questions go to the heart of the momentary possession defense," Justice Sandra Margulies wrote. "The fact the jury asked whether there was a time requirement for possession suggests jurors were wrestling with how long defendant had the gun."
Steinle was walking with her family on Pier 14 on July 1, 2015, when she was hit by a bullet that had ricocheted off a concrete wall, hitting her in the back. Police said Garcia-Zarate knowingly fired the gun, then threw it in the water.
The defense successfully argued during his trail that the gun was wrapped in rags, which he picked up when it fired accidentally. He then, the defense said, threw it in the water so it would stop firing, according to court documents.
The gun Garcia-Zarate shot belonged to a U.S. Bureau of Land Management ranger who reported that the gun was stolen from his car in San Francisco.
Despite the overturned conviction, Garcia-Zarate will remain in jail on related federal charges.
"We pray that the U.S. Attorney's Office is successful in prosecuting Garcia-Zarate and that this menace will no longer be able to terrorize our streets,” the police association said.
The San Francisco Police Officers Association blasted the court's decision, saying this is “another episode" of San Francisco judges caring more about criminals than victims.
"This is yet another disgusting injustice perpetrated by a broken criminal justice system that is more intent on re-harming the victims of crime and their families than holding violent offenders accountable,” a statement from the police association read.
The San Francisco district attorney's office is weighing its next steps, according to The Associated Press.
The Steinle family did not immediately respond when asked for comment by ABC News.