OAKLAND (CBS SF) — A judge Monday dismissed a murder charge against one of two young Oakland men who were charged in the brutal beating death of a 55-year-old man in a West Oakland park about a year ago.

At the end of a preliminary hearing for Jabari Jones, 20, and Breshawn Clark, 19, in connection with the Feb. 22, 2017, death of Phillip Fai Low, a homeless man who sold meat on the street, Alameda County Superior Court Judge Morris Jacobson said prosecutors didn’t present enough evidence to have Clark stand trial.

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Jacobson said, “I might not be right on this” and told prosecutor Chris Cavagnaro that he could re-file the murder charge against Clark if more evidence against him is developed.

But Jacobson ordered Jones to stand trial on a murder charge, since a 15-year-old boy who was with Jones and Clark at the time of the beating death told police that he saw Jones kick Low about 15 times.

The 15-year-old boy testified on the first day of the preliminary hearing last week that Jones was angry at Low because he thought Low had been “snitching” on him.

The boy said Low didn’t deserve to be killed because “that man didn’t do nothing to anybody.”

Oakland police Officer Jose Barocio wrote in a probable cause statement last year that witnesses saw Jones punch Low with a closed fist and stomp on him multiple times at Lowell Park in the 1000 block of 12th Street early on Feb. 22.

Jones and Clark left the area but returned and Jones stomped on Low some more while Clark stole $1.14 from him, Barocio wrote.

Jones and Clark left again but returned for a third time while Low was still lying on the ground and not moving and Jones assaulted him once more, according to Barocio.

At one point, Jones and Clark placed Low inside a shopping cart and threw him into water, Barocio wrote.

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Eventually a 12-year-old child who was walking to school saw Low lying motionless in the park and called 911, according to Barocio.

Paramedics were summoned to the park but Low was pronounced dead at the scene, Barocio wrote.

Oakland police Officer Michael Jaeger wrote that officers found Low lying face down on a wet sidewalk the morning of Feb. 22.

Officers who interviewed Jones noticed that he had a cuts on one of his fingers and on his knuckles and there were red marks on his shoes that appeared to be blood, Jaeger wrote.

Cavagnaro argued that Clark should be ordered to stand trial on a murder charge for being an accomplice to Low’s beating death because he took money from Low and helped Jones move Low’s body.

But Jacobson said he thinks it would be a stretch to have Clark stand trial for murder under the felony murder rule, in which a person can stand trial if they participate in a dangerous crime even if they didn’t have an intent to kill, because Clark and Jones aren’t charged with robbery.

Jacobson said he thinks that the intent of Jones and Clark was to “humiliate” Low, not necessarily to rob him.

Jones is scheduled to return to court on Feb. 20 to have his trial date set. Clark faces minor charges in other cases but could be released from custody soon.

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