The man acquitted in the 2015 shooting death of Kate Steinle could be granted a new trial Friday on his weapon possession conviction.
Jose Garcia Zarate, a Mexican immigrant who was found not guilty of murder and manslaughter charges after firing the shot that killed Steinle on San Francisco's Pier 14 in July 2015, will be in court Friday with a defense that disputes he had possession of the firearm.
Garcia Zarate's attorneys contend the jury in the lengthy November murder trial wasn’t told about transitory possession, the idea that Garcia Zarate held the weapon briefly, but not long enough to constitute possession.
"I think a properly instructed jury, whether in state court or federal court, is going to find Mr. Zarate not guilty," defense attorney Matt Gonzalez said of the possession charge three weeks ago.
Prosecutors say a retrial would be bogus. They filed a motion this week, contending a momentary possession instruction also requires substantial evidence that the defendant did not intend to prevent law enforcement officials from seizing a firearm.
Garcia Zarate, by his own admission, tossed the weapon that killed Steinle into the water.
Legal experts say both sides are relying on theory. NBC legal analyst Dean Johnson says Judge Samuel Feng is likely to keep the weapon possession conviction in place.
"What the prosecution has is a theory, and if this trial proves anything, it’s that both the prosecution and the defense both had very powerful theories," Johnson said.
But Johnson added he expects the arguments over jury instructions to drag on.
"I think that there’s a real possibility that there was an instructional error in this case," he said. "And based on that, a new trial may be granted. More likely, the new trial would be denied, but this lays the groundwork for a very strong appeal."
A juror in the murder trial said last month the instructions regarding possession were, in fact, confusing.
"What do they mean by possession? Means like you had the thing for a long time? Like if you touched it, that means you possessed the gun?" the juror said.
Should the conviction stand, the maximum sentence Garcia Zarate could receive Friday is three years, and he's likely fulfilled it with time served.
Garcia Zarate also is facing federal charges and eventually will go into federal custody. He’ll be in the sheriff’s department custody until then.