A California appeals court reversed the only conviction against the undocumented immigrant who was previously acquitted in the death of Kate Steinle, a case that drew national focus in the debate over immigration and sanctuary cities.
A jury found Jose Inez Garcia Zarate not guilty of involuntary manslaughter and assault with a firearm in 2017, two years after 32-year-old Steinle was fatally shot in the lower back at a San Francisco pier. At that time, Zarate was convicted only of being a felon in possession of a firearm, touching off a storm of criticism from conservative pundits and President Donald Trump.
Zarate and his attorneys had argued the shooting was an accident and that Zarate, who had been deported five previous times, didn't know he was holding a gun when he picked up an object from the ground covered in rags.
On Friday, California's 1st District Court of Appeal reversed the gun possession conviction after it decided that members of the jury should have been instructed about the possible defense of "momentary possession." With his criminal record, Zarate couldn't legally possess a gun — but the Court of Appeal said that jurors should have been instructed to consider whether Zarate picked it up not knowing it was a gun, and then got rid of it when it had fired and killed Steinle.
Zarate had told cops that the gun went off after he stepped on it. Later, he said he had picked up something with his hands that was covered in rags, but he didn't know it was a gun until it was accidentally discharged.
"I think I stepped on it and...and it went off by itself," Zarate had told the cops, according to the court's decision. "There was a...a rag and stuff, and I stepped on it and then it fired, and then I grabbed it and then I tossed it."
But Trump and other Republicans painted Zarate as a violent murderer who had benefited from San Francisco's sanctuary policies. At rallies before and after his election, Trump used the case to promote his immigration goals, including building the border wall. A set of anti-immigration policies known as Kate's Law was introduced in the House of Representatives in 2017, but it did not pass.
On Friday, the Court of Appeal said that not only was Zarate not a murderer, but he couldn't be considered guilty of illegally possessing the gun.
In its decision, the court noted that Zarate had given officers a series of incongruent and at times confusing answers, including claiming that he was born in 1863. He had at first denied firing the weapon but, when pressed by officers, had answered, "Very well."
According to video of the July 1, 2015, incident, Zarate sat in a swivel chair on the pier for more than 20 minutes when Steinle and her family arrived nearby. Prosecutors argued that Zarate had pointed the gun at a seal at one point and that he had been playing a sort of "Russian roulette" while holding the gun and swiveling in the chair. But Zarate's attorneys said he leaned down and picked up the item from the ground not knowing it was a gun. The gun then discharged in his hands.
The single shot, officials found, ricocheted on the pier and struck Steinle in the back, killing her.
Zarate then threw the gun into the water and began to walk away.
Asked why he threw the gun into the water, Zarate had told detectives, "Because if not, it was going to keep firing by itself."
In making its decision, the Court of Appeal noted it was not reevaluating the evidence that had been presented at trial, but that questions remained about whether Zarate knew he had a gun at the time it fired — a key question for the jury to answer.
The court also noted that on the fourth day of its six-day deliberations, members of the jury had asked if there was a "time requirement" to the possession charge.
Even though defense attorneys asked for jurors to be instructed about the "momentary possession" defense, the judge decided against it, citing a lack of facts.
The Court of Appeal disagreed.
"If believed by the jury, these facts describe an accidental discovery and abandonment that would support a momentary possession defense," the court wrote.
Days after Zarate was acquitted in the state charges, the US Department of Justice filed federal charges against him on the case, including being a felon in possession of a firearm and being an illegally present alien in possession of a firearm.
That case is ongoing in federal court, and Zarate remains in custody.