SAN FRANCISCO (CBS SF) – An undocumented Mexican citizen who held the gun that killed a woman on a San Francisco pier in 2015 was ordered by a U.S. judge Wednesday to participate in a psychological evaluation to determine whether he is competent to stand trial on federal gun charges.

Kate Steinle, 32, was struck and killed by a ricocheting bullet from a gun held by Jose Inez Garcia Zarate on Pier 14 on July 1, 2015.

Zarate, 47, who contends the shooting was an accident, was acquitted of murder and manslaughter charges in San Francisco Superior Court in 2017.

But he faces two federal criminal charges of being an ex-felon and an undocumented person in possession of a gun. He was scheduled to go on trial this week in the court of U.S. District Judge Vince Chhabria in San Francisco, but the judge postponed the trial because of concerns about Zarate’s mental competence.

Jose Ines Garcia Zarate (CBS)

After Zarate declined to participate in an evaluation by a psychologist on Monday, Chhabria ordered him brought to court on Wednesday so that Chhabria could personally order him to cooperate in the assessment, now rescheduled for Jan. 23.

Zarate, who is being held in pretrial custody, appeared in court in red Alameda County jail clothing. His hair was closely shaven.

“As I have indicated, I have concerns about whether you have a mental health condition that would prevent you from being able to go to trial,” Chhabria told Zarate through a translator.

“I have ordered you to undergo an evaluation by a mental health professional. I want to make clear that I am ordering you to participate,” he said.

Chhabria told Zarate that a trial can’t take place until there is an evaluation and said a refusal to cooperate would mean that he would remain in custody for the time being.

Outside of court, defense attorney Tony Serra said the judge became concerned after he asked Zarate in a previous hearing what the charges against him were, and Zarate twice responded “illegal entry.”

Serra said he believes Zarate is competent to go to trial and that Zarate is eager to do so in hopes of being acquitted and released.

The attorney said he doesn’t plan to call Zarate to testify at trial and instead will rely on a surveillance video to support Zarate’s claim that he didn’t know the wrapped object he found under his chair was a loaded gun. He threw it in the water as soon as it fired.

Later on Wednesday, Serra said he met with Zarate after the court hearing and that his client was “equivocal” about whether to participate in the evaluation.

“He didn’t say he would not cooperate and didn’t say he would. He was very emphatic that he doesn’t have a mental problem,” Serra said.

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