Jose Inez Garcia-Zarate shot Kate Steinle on a San Francisco pier in 2015. In November 2017, he was found not guilty of all but one count of felony possession of a firearm. Now his attorneys are attempting to have that conviction overturned. From ABC News:

A Mexican national who touched off a fierce immigration debate over his role in the shooting death of a woman walking on a San Francisco pier is seeking to overturn his felony gun possession conviction. It was the only charge he was found guilty of after a jury acquitted him of murder.

Jose Inez Garcia-Zarate had been deported five times at the time of the shooting and was wanted for a sixth deportation proceeding.

Lawyers for Garcia-Zarate filed the expected appeal last week in state court. He contends he didn’t know a gun was in his hands because it was wrapped in a T-shirt when it fired and he dropped it almost immediately after picking it up. He argues in court papers that he can’t be convicted of illegal gun possession.

CBS San Francisco has a bit more on what Zarate is claiming in an attempt to overturn the conviction:

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 was released from prison with no attempt to hold him for ICE so he could be deported again because of San Francisco’s sanctuary city policy. As for the shooting itself, there was evidence that Zarate didn’t intend to shoot Steinle. Specifically, the bullet bounced off the pavement only about 12 feet from where he was sitting on a bench. The murder charges brought by prosecutors were a stretch.

The jury chose not to convict Zarate of manslaughter, according to one alternate juror, for a couple of reasons. First, manslaughter would have required that a crime was being committed when the gun went off. Prosecutors claimed that crime was brandishing a weapon, but Zarate claimed the gun was wrapped in a t-shirt and that he didn’t know what it was when he picked it up. He had told a local news reporter he was aiming the weapon at some sea lions, which suggests he knew what it was, but the alternate juror who spoke to Politico said the prosecutors never made the case he’d been brandishing prior to the shooting.

The involuntary manslaughter charge that the jury was read included two key requirements: 1) A crime was committed in the act that caused death; 2) The defendant acted with “criminal negligence”—he did something than an ordinary person would have known was likely to lead to someone’s death.

The jury members were not free to select the crime for part (1)—they had to use the one chosen by the prosecution, and the prosecution chose that crime to be the “brandishing,” or waving with menace, of a weapon. As a juror, I found this choice puzzling, because the prosecutor presented absolutely zero evidence of brandishing during the trial. I don’t think we even heard the word “brandishing” until it was read as part of the charge during the jury instructions at the trial’s end. No witnesses ever saw the defendant holding a gun, much less brandishing it. Given that baffling choice by the prosecution, the manslaughter charge was a nonstarter for the jury. Had a different precursor crime been chosen—for instance, the unlawful possession of a firearm by a felon—the outcome might have been different.

The gun itself was stolen from a car belonging to a Bureau of Land Management ranger. Zarate claimed he didn’t steal it but just found it under a bench on the pier, wrapped in a t-shirt. That may or may not be true but there’s no proof either way so it was another element of reasonable doubt about his intent.

Zarate was sentenced to time served on the gun possession charge. He had spent about 30 months in jail during the trial. He is now facing two federal charges related to gun possession but his case has been put on hold until the Supreme Court rules on a similar case from Alabama.