Kate Steinle shooting: Defense wants gun-possession conviction tossed as well

Jose Ines Garcia Zarate appears July 7, 2015, in San Francisco Superior Court shortly after Kate Steinle was shot dead on Pier 14. Jose Ines Garcia Zarate appears July 7, 2015, in San Francisco Superior Court shortly after Kate Steinle was shot dead on Pier 14. Photo: Michael Macor / San Francisco Chronicle Photo: Michael Macor / San Francisco Chronicle Image 1 of / 33 Caption Close Kate Steinle shooting: Defense wants gun-possession conviction tossed as well 1 / 33 Back to Gallery

Defense attorneys who won acquittal for a homeless undocumented immigrant on murder, manslaughter and assault charges in the shooting of Kate Steinle on a San Francisco Bay pier will seek to have the sole conviction in the case dismissed as well, they said Monday.

A jury last week found Jose Ines Garcia Zarate, 45, guilty of a lesser count of being a felon in possession of a gun in connection with Steinle’s death on Pier 14 in July 2015, after the defense argued at trial that the shooting was an accident that happened after the defendant found a stolen gun wrapped in a T-shirt or cloth under a bench.

Now the defense says the conviction is inconsistent with the jury’s larger acquittal. If the panel believed Steinle may have been killed by an accidental discharge, lawyers assert, Garcia Zarate should not be held responsible for possessing the weapon — even though he threw it in the bay as Steinle lay dying.

Matt Gonzalez of the San Francisco Public Defender’s Office, the lead attorney in the case, said he will appeal the charge at some point after Garcia Zarate’s Dec. 14 sentencing in Superior Court. Gonzalez said his appeal will contend jurors should have been told that “momentary” possession of a gun is not necessarily a crime.

“If you possess it just to dispose of it or abandon it, it wouldn’t be a crime,” he said.

San Francisco prosecutors, who declined to comment, argued at trial that Garcia Zarate fired toward Steinle intentionally, offering evidence that the pistol that killed the 32-year-old woman would discharge only with a firm pull of the trigger. The bullet bounced off the pier’s concrete ground before striking Steinle in the back and piercing her heart.

The defense said the gun went off in Garcia Zarate’s hands almost immediately after he found it, and that he flung it in the water because he was scared.

During deliberations, Gonzalez said, jurors asked Judge Samuel Feng about brief possession of the gun.

“We suspect the conviction on the gun charge is based on (Garcia Zarate’s actions) after the gun went off and he realized it was a gun and dumped it,” said Tamara Aparton, a spokeswoman for the Public Defender’s Office. “If it’s based on that, the jury did not get proper instruction on momentary possession.”

Jurors did not explain their verdict publicly after handing it down, and in general they cannot be asked to explain deliberations to settle conflicts during appeals.

If an appeals court agrees with the defense argument and overturns the conviction, Garcia Zarate could be retried for that charge alone.

Showing an error was made during jury instructions isn’t necessarily enough to get a new trial. On appeal, the defense additionally has to show that the error affected the outcome, said Andrea Roth, an assistant professor of the UC Berkeley School of Law and a former appellate attorney for the Public Defender Service in Washington, D.C.

“You have to show the error mattered — that it wasn’t harmless,” she said.

In previous cases on appeal, Roth said, she’s argued an error wasn’t harmless by pointing to inconsistency in verdicts and suggesting the jury may have compromised — violating their instructions.

It’s unclear how the dispute could affect the fate of Garcia Zarate, who remains in San Francisco jail. He faces up to three years in state prison on the gun-possession charge, but he has likely already satisfied that term since his arrest shortly after the shooting. Federal authorities on Friday unsealed a warrant for his arrest, and they plan to deport him for a sixth time.

Garcia Zarate has pending federal charges of violating the terms of his 2015 release from prison, where he had served 46 months for felony re-entry to the United States after deportation. He will be turned over to the U.S. Marshals Service when he is eligible for release in the Pier 14 case, Sheriff’s Department officials said.

The .40-caliber Sig Sauer pistol that Garcia Zarate allegedly possessed had been stolen four days earlier from a U.S. Bureau of Land Management ranger’s car after he drove into the city and parked along the Embarcadero. No one has been arrested in the burglary.

Garcia Zarate’s acquittal on the most serious charges shocked many observers and was called “disgraceful” and a “complete travesty of justice” by President Trump.

Before the shooting, Garcia Zarate had been on track for deportation, but his course changed when he was transferred from federal custody to San Francisco County Jail in March 2015 on an old warrant alleging he fled marijuana charges in 1995.

When city prosecutors discharged the case, the Sheriff’s Department released Garcia Zarate despite a federal request to hold him for deportation. Then-Sheriff Ross Mirkarimi cited the city’s sanctuary policies, which limit local cooperation with immigration enforcement and seek to encourage undocumented people to feel comfortable having a relationship with city agencies.

Evan Sernoffsky and Bob Egelko are San Francisco Chronicle staff writers. Email: esernoffsky@sfchronicle.com, begelko@sfchronicle.com Twitter: @EvanSernoffsky, @Egelko