San Diego Superior Court has dismissed the felony case against Judah McBreairty, 25, who allegedly assaulted a transgender person in Balboa Park.

The Court dropped the deadly weapon charge on April 3 and released McBreairty from county jail, because the victim, Christopher Espitia, 20, was unable to testify against him.

Espitia, who is often homeless, had been arrested on a misdemeanor charge of sleeping in public and could not, therefore, appear in court.

District Attorney Bonnie Dumanis can re-file the case against McBreairty if Espitia, whom officials cannot locate, is found. “The district attorney will review the case and decide whether to re-file it,” said the office’s spokesperson, Steve Walker, on April 5.

Espitia had four citations for illegal lodging, which involved him sleeping in public places. The City Attorney’s Office filed four separate misdemeanor cases against Espitia, and he was arrested on a $5,000 warrant for not appearing in court for any of them.

Espitia pleaded no contest to one illegal lodging charge and the others were dismissed by San Diego Superior Court Commissioner Sandra Berry on April 3. He was given credit for spending three days in jail, fined $170 and placed on three-years probation. Because he is indigent, he was not ordered to pay anything for his court-appointed attorney, according to court records.

Berry ordered Espitia to stay away from Balboa Park where he had received three citations for sleeping under a bridge at Highway 163 and Upas Street. That was where McBreairty was living when he was arrested Jan. 26 for allegedly beating Espitia over the head four to five times with a foot-long flashlight. The victim received three gashes, including one under one eye, and was taken to a hospital.

While in jail, McBreairty’s mental state was evaluated after his attorney thought he did not understand court proceedings. A judge found he was mentally competent after reading a psychological evaluation.