The undocumented immigrant who murdered Kate Steinle in San Francisco has had the only charge he was convicted of negated.
Jose Inez Garcia-Zarate, a seven time convicted felon who was previously deported, had his conviction overturned by a California appeals court on Friday.
In his first trial he was acquitted of first degree and second-degree murder, assault with a semi-automatic weapon and involuntary manslaughter.
But the charge that prosecutors got to stick was Garcia-Zarate was a felon in possession of a firearm, until yesterday, Fox News reported.
Jose Inez Garcia-Zarate, who was in the U.S. illegally and had been deported to his native Mexico five times, was acquitted in November 2017 of first- and second-degree murder, involuntary manslaughter, and assault with a semi-automatic weapon. He was convicted of one count of being a felon in possession of a firearm.
On Friday, the 1st District Court of Appeal in San Francisco overturned that conviction, saying the judge failed to give the jury the option of acquitting Garcia-Zarate on the theory he possessed the weapon for only a moment.
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 jury’s 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 said in the unanimous decision.
“The fact the jury asked whether there was a time requirement for possession suggests jurors were wrestling with how long [the] defendant had the gun,” she said.
“That kind of error causes reversals all the time. Then the prosecution has the prerogative of going again,” Garcia-Zarate’s attorney Tony Serra said.
“The state case is a heavier case because it’s a homicide and a gun. … It’s going to be a big potential decision on what they’re going to do,” he said.
Earlier this year, the 9th Circuit Court of Appeals upheld a lower court decision to dismiss a wrongful death lawsuit filed by Steinle’s parents against San Francisco. The lawsuit maintained that the city’s so-called sanctuary policy and San Francisco County Sheriff Ross Mirkarimi bore responsibility for Steinle’s death.
Three months before the killing, Garcia-Zarate was released from custody after a drug case against him was dropped. The sheriff’s office, which had ended contact between jail employees and immigration officials, ignored a request by federal authorities to hold Garcia-Zarate until they could assume custody and did not inform them that he was being released.
”Kate Steinle was tragically killed because San Francisco proudly proclaims itself a sanctuary city,” USCIS Acting Director Ken Cuccinelli said.
“How many more innocents will die b4 sanctuary cities stop harboring violent criminals? This defies common sense, public safety, & human decency. #NoJustice,” he said.
Kate Steinle was tragically killed because San Francisco proudly proclaims itself a sanctuary city. How many more innocents will die b4 sanctuary cities stop harboring violent criminals? This defies common sense, public safety, & human decency. #NoJustice https://t.co/rFeungS0wK
— USCIS Acting Director Ken Cuccinelli (@USCISCuccinelli) August 31, 2019
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