OAKLAND (CBS SF) — The defense lawyer for a 16-year-old boy accused of setting a skirt-wearing teen on fire on an AC Transit bus three weeks ago said Tuesday that he will seek to have the boy prosecuted in juvenile court instead of in adult court.

William DuBois, the attorney for Richard Thomas, said the Nov. 4 incident in which Thomas is accused of setting 18-year-old Luke “Sasha” Fleischman on fire on a bus in Oakland was only “a prank” and “wasn’t adult-type conduct.”

Thomas currently is being prosecuted as an adult on charges of aggravated mayhem and felony assault as well as hate crime clauses. However, he’s being housed at Alameda County Juvenile Hall in San Leandro and wore a blue and white juvenile hall sweatshirt in court Tuesday.

Fleischman, a student at Maybeck High School in Berkeley, suffered severe second- and third-degree burns after the teen’s clothing was lit on fire as Fleischman slept in the back of an AC Transit bus as it traveled near MacArthur Boulevard and Ardley Avenue around 5:20 p.m. on Nov. 4.

Thomas was scheduled to enter a plea Tuesday but Alameda County Superior Court Judge Gordon Baranco agreed to delay Thomas’ plea entry and instead set a hearing for Dec. 20 on DuBois’ motion to have Thomas’ case sent to juvenile court.

After the hearing, DuBois said security footage from the AC Transit bus makes it clear that Thomas is the person who set Fleischman on fire but the question is what the circumstances were and what Thomas’ state of mind was.

The defense attorney said Thomas thought there would only be “a little puff of smoke and everyone would laugh” and Thomas was “mortified” when Fleischman became engulfed in flames.

Thomas is “very remorseful” and didn’t intend to seriously harm Fleischman, DuBois said.

Thomas “made a horrible mistake that he may never be able to make up for,” he said.

Oakland police Officer Anawawn Jones said in a probable cause statement that Thomas told investigators that he set Fleischman on fire because he’s “homophobic.”

But DuBois said he doesn’t think Thomas used that term and he doesn’t think Thomas is homophobic because he has a cousin who is transgender.

DuBois said that in addition to facing a lighter penalty, Thomas will have a better chance of getting rehabilitated if he’s prosecuted in juvenile court instead of adult court.

(Copyright 2013 by CBS San Francisco and Bay City News Service. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)

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