Court tosses migrant’s gun conviction

SAN FRANCISCO — A California appeals court on Friday threw out the sole gun-related conviction against a migrant whom authorities accused of fatally shooting a woman on the San Francisco waterfront in 2015 in a case that sparked a national immigration debate.

Jose Inez Garcia-Zarate was acquitted of murder in the killing of Kate Steinle, who was walking on a pier with her father when she was struck in the back by a bullet in July 2015. The appeals court overturned a single conviction on a charge of being a felon in possession of a gun.

The case against Garcia-Zarate, who was not authorized to be in the country and who had been deported five times, was a regular talking point in President Donald Trump’s 2016 campaign stump speeches.

The 1st District Court of Appeal overturned the gun conviction because the judge failed to give the jury the option of acquitting Garcia-Zarate on the argument that he only possessed the weapon for a moment.

The ruling means prosecutors have the option of retrying him in San Francisco Superior Court on the single count, but it may have little real effect because Garcia-Zarate remains in custody facing related federal charges.

Garcia-Zarate said he unwittingly picked up the gun wrapped in a T-shirt and that it fired accidentally. The bullet ricocheted off a concrete walkway and struck Steinle, who was with her father and a family friend.

Defense lawyers argued on appeal that because Garcia-Zarate held the gun for such a short time, he couldn’t be convicted of illegal gun possession.

Prosecutors argued that the jury-instruction lapse was harmless because Garcia-Zarate admitted firing the gun and experts said he couldn’t do so without pulling the trigger.

The court disagreed, saying the jurors’ verdict showed they rejected the prosecution theory that the shooting was intentional or even negligent, and they had asked the judge to define possession and whether there was a time requirement for possession.

“These questions go to the heart of the momentary possession defense,” Justice Sandra Margulies wrote in the 3-0 decision. “The fact the jury asked whether there was a time requirement for possession suggests jurors were wrestling with how long defendant had the gun.”

Public Defender Matt Gonzalez, who argued the case before the jury, said the improper instruction meant that Garcia-Zarate did not get a fair trial.

Garcia-Zarate, who was facing deportation proceedings at the time of his arrest in the killing, had been released by county jail officials three months before Steinle’s death.

Immigration and Customs Enforcement officials had requested that the sheriff’s office inform them of his release date and hold him until they could pick him up. But San Francisco’s sanctuary city policy barred local law enforcement officials from cooperating with most federal immigration investigations.

On the campaign trail, Trump referred to the shooting as he criticized sanctuary cities and argued for tougher immigration policies.

Garcia-Zarate was sentenced to three years in prison on the gun charge, but he ended up serving no additional time because of time he spent behind bars while awaiting trial.

He was taken into custody, however, on federal gun-possession charges, and he awaits trial Jan. 13.