Zarate appeals gun conviction, argues key jury instruction was lacking

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SAN FRANCISCO (BCN) An undocumented Mexican citizen who was convicted of possessing the gun that killed Kate Steinle on a San Francisco pier in 2015 has appealed his conviction, claiming that the trial judge failed to give a key jury instruction.

Jose Ines Garcia Zarate was convicted in San Francisco Superior Court in 2017 of being an ex-felon in possession of a gun. The jury acquitted him of the murder of Steinle, who was killed on July 1, 2015, by a ricocheting bullet from a gun held by Zarate.

Zarate was sentenced in January 2018 to three years in prison.

In an appeal filed last week with the state Court of Appeal in San Francisco, Zarate argues that his rights were violated when trial judge Samuel Feng failed to give the jury an instruction on the theory of momentary possession.

That instruction advises jurors that gun possession is not illegal if the possession was for only "a momentary or transitory period" and for the purpose of disposing of the firearm.

Zarate contends that he picked up a package wrapped in rags under a swivel chair he was sitting on at the pier, did not know he had a gun until it fired accidentally, and then immediately threw the gun into the bay to stop it from firing.

Zarate's appeal attorney, Cliff Gardner, wrote that because that claim "was the central theory of defense, the trial court was required to instruct on the defense of transitory possession."

The appeal asks for reversal of his conviction and a new trial.

A hearing on the appeal has not yet been set. The next step in the case will be the filing of a prosecution response.

The gun held by Zarate had been stolen from the car of a U.S. Bureau of Land Management law enforcement officer.

Separately, Zarate faces two federal charges of being an ex-felon and an undocumented person in possession of a gun.

He claims that a federal trial on those charges would amount to unconstitutional double jeopardy, or being tried twice for the same crime. U.S. District Judge Vince Chhabria of San Francisco has postponed the federal trial until the U.S. Supreme Court rules on a similar case from Alabama 
concerning double jeopardy.