San Francisco – In 2015, Jose Garcia Zarate made national headlines when he picked up a gun, the gun went off, and killed young Kate Steinle on a pier in San Francisco after she was struck in the back by a bullet.
Mr. Zarate was charged with murder, involuntary manslaughter, and assault with a firearm – but acquitted in a trial that drew national attention, being at the center of the debate over illegal immigration and the city’s Sanctuary City laws.
The only charge for which Mr. Zarate was convicted was being a felon in possession of a firearm. In a speech in Davis last November, his attorney, Public Defender Matt Gonzalez, believed that conviction was in error, believing that Mr. Zarate was never in constructive possession of the firearm and that the judge improperly instructed “the jury on the affirmative defense of momentary possession.”
The First District Court of Appeal agreed with the defense and reversed the November 2017 verdict.
The court notes the defense theory was “was that he was sitting in a swivel chair on the pier, bent over to pick up an object wrapped in rags, a gun fired accidentally, and he immediately threw the gun in the water to stop it from firing.”
The key evidence here is “proof that he did not know the object he picked up was a gun. “
In their review, the court found substantial evidence that was presented at trial that supports at least two reasonable inferences. The first is that the defendant knew he held a gun and did not possess it solely with an intent to dispose of it, or second, that he was unaware he held a gun until it fired, “at which time he threw it away to stop it from firing.”
The court writes, “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.”
On July 1, 2015, Kate Steinle was walking with her father and a family friend on Pier 14 near the Embarcadero in San Francisco.
later, Ms. Steinle is shot and falls to the ground, there is a splash in the water, and the defendant walks away from the pier.
The prosecution argued that Mr. Zarate was guilty of murder because he brought the gun to the pier and played his own version of Russian roulette, aiming at people and pulling the trigger, intending to kill someone.
Officer John Evans opined over defense objections that “a human being held a firearm, pointed it in the direction of Ms. Steinle, pulled the trigger, firing the weapon and killing the victim.”
Meanwhile, Gerald Smith, a criminalist in the police department, testified the gun had a number of safety features to prevent the gun from discharging accidentally and did not have a “hair trigger.”
On the other hand, the defense, represented by Matt Gonzalez of the San Francisco Public Defender’s office, argued that the defendant did not bring the gun to the pier, he then discovered an object wrapped in a rag or cloth by touching it with his foot. He picked it up not knowing it was a gun. When it fired by itself, he threw it in the water to stop it from firing.
In contrast to the prosecution, James Norris, a defense firearms expert, would testify that the gun lacked a safety mechanism and “could accidentally discharge if it were in single-action mode. Norris opined the gun likely fired while the defendant was seated, probably while he was bent over, and that “[i]t somehow discharged, ricocheted, [and] unfortunately struck the victim.”
According to Norris, the “weapon seemed to be pointed down towards the ground. It was near the ground and pointed down towards the ground. In that position, it would be extremely difficult for a person to aim . . . .”
A second defense expert in firearms and unintentional discharges, Alan Voth, testified that “if an operator of a firearm discharged a single bullet from a seated position, it struck the ground 12 feet away, the ground was concrete, and the bullet ricocheted from that location and traveled 78 feet before striking a person in the lower back, that would indicate an unintentional discharge.”
Most notable for the issue at stake here, the jury in deliberating over six days sent out a question asking for the definition of possession and the time required for possession to occur.
During the course of their out-of-jury discussion, defense counsel requested the court give the momentary possession portion of the jury instructions. The court denied the request, “because I don’t think there’s sufficient facts for it.”
The court notes of the defense theory, if believed by the jury (which seems plausible in light of the verdict), that “these facts describe an accidental discovery and abandonment that would support a momentary possession defense.”
Writes the court, “In this highly unusual circumstance, we conclude the momentary possession defense is available.”
They add that “there was sufficient evidence from which a jury could conclude defendant was not aware of the nature of the gun until it fired, possessed it for only a brief moment knowing it was a gun, reflexively abandoned it as soon as he realized it was a gun, and did not dispose of it to prevent law enforcement from seizing it. “
The court adds, “It is undisputed that defendant was holding the gun when it fired. But that fact alone does not establish he possessed the gun for more than a moment. To possess the gun, defendant had to know he was holding it.”
On the basis of the statement about the gun being wrapped in cloth, his intent to dispose of it to stop it from firing, surveillance video showing the gun landing in the water, and expert opinion about the gun accidentally being discharged, the court concludes that “substantial evidence supported a momentary possession defense.”
Meanwhile, Mr. Zarate still faces federal charges and potentially ten years in prison.
—David M. Greenwald reporting