The illegal immigrant who killed Kate Steinle in 2015 has been found mentally incompetent and therefore not able to stand trial on gun charges related to the case.

U.S. District Court Judge Vince Chhabria said in a court order that a psychiatric evaluator had concluded Jose Inez Garcia-Zarate was not competent to stand trial “because of mental illness that is not presently being treated.”

Chhabria said he would meet with lawyers from both sides next week to discuss the next steps. If either side objects to the findings, a hearing would likely be required to examine Garcia-Zarate’s competency. If neither side disputes the findings, the court will discuss whether the defendant should be treated locally for mental illness or sent to a federal facility outside California.

Zarate was acquitted of the murder of Steinle in 2017 but was convicted on a charge of being a felon in possession of a gun. An alternate juror explained after the trial that the murder charge seemed like a stretch to jurors because the bullet bounced off the pavement. In theory, Zarate could have been convicted of manslaughter, but for that to happen the killing had to take place in connection with an underlying crime. In Zarate’s case, prosecutors said the underlying crime was brandishing the gun before it went off. That fit with some of Zarate’s own statements prior to the trial, i.e. that he was pointing the gun at sea lions before it went off. But prosecutors apparently never offered any evidence at trial that Zarate was brandishing the gun. The alternate juror suggested that if prosecutors had simply chosen possession of a firearm by a felon as the underlying crime (the one charge Zarate was convicted on), he would have been convicted of manslaughter.

However, Zarate appealed the gun conviction last January on the grounds that the judge had failed to instruct the jury he could be found not guilty if he was only temporarily in possession of the gun. Last September he won the appeal and his conviction was overturned. Now Zarate’s attorney says he will seek a second opinion on his client’s mental state:

“We want a trial,” Serra said in an interview. “We’re against having him (found) incompetent. He could go away for an indefinite period” to a mental hospital, under government supervision…

But if the case goes to trial, he said, Garcia Zarate would be able to cooperate adequately with his attorneys because “I don’t need him much. We can do it all on evidence of the video” showing his brief possession of the gun before the shooting.

Even if Garcia Zarate were convicted, Serra said, he would get credit for the years he has spent behind bars since the shooting and “could be out very quickly” — possibly much sooner than he would be released from a mental hospital if found incompetent. In either event, he would face immediate deportation.

Zarate has been deported five times and each time has returned to the United States illegally. He served four years in prison for his fifth re-entry and was then sent to San Francisco on an old drug charge. San Francisco’s prosecutor dropped the drug charge and ICE sent the city a detainer asking that Zarate be held until they could pick him up (to begin his sixth deportation). Instead, San Francisco released Zarate under its sanctuary city policy. That was in mid-April 2015. Kate Steinle was killed less than three months later.