Moments before attorneys were to argue the merits of a hate crime charge against a Marine, who is accused of strangling a gay man, the prosecutor asked a Superior Court judge to dismiss the hate crime charge, and the judge granted his request.

James Alexander Hardy, 20, will still stand trial in Superior Court on June 4 for the murder of Raymund Catolico, 39, whose nude body police found stuffed under the bathroom sink in his Little Italy apartment on Feb. 9, 2006, with an oven bag over his head.

With the removal of the hate crime charge, neither anti-gay bias nor motivation will need to be proved. Hardy’s potential sentence will also change. With the hate crime charge, a first-degree murder conviction would have earned him life in prison without parole. Without the hate crime charge, Hardy faces 25-years-to-life if convicted of first-degree murder, or 15-years-to-life if convicted of second-degree murder.

Deputy District Attorney Dan Link asked San Diego Superior Court Judge Bernard Revak on April 26 to dismiss the hate crime allegation “in furtherance of justice” just before Hardy’s lawyers were to argue that it should be dismissed. Revak did so.

Asked by a reporter why he sought the dismissal of the hate crime charge he earlier supported, Link said, “Upon further investigation, it may be better to go forward without it.” Link later repeated that the reason for dismissing the hate crime allegation came from “further investigation,” but he didn’t elaborate.

Hardy’s lawyers had repeatedly argued there was no evidence that Hardy hated gay people and no one had ever heard him utter anti-gay epithets. “No history of bigotry exists,” wrote defense attorney Troy Britt. “Not a single piece of evidence … was presented to the court which would suggest that Mr. Hardy hated homosexuals.”

Hardy told police he strangled Catolico after he made repeated and unwanted sexual advances toward him. He said Catolico met him at the Greyhound bus depot downtown and invited him to his apartment. Hardy told police they drank and he turned down Catolico’s offer to sleep with him. Hardy slept on the couch, and Catolico drove him back to the bus depot the next day, so he could visit his brother in New Mexico.

Ten days later, Hardy returned to San Diego and called Catolico, who picked him up. Hardy’s attorneys argued there was no bias against gays since Hardy assumed Catolico was gay after his first visit with him.

Britt faulted the judge who conducted the preliminary hearing and said he should not have ordered Hardy to stand trial on the hate crime charge, saying the prosecution failed to prove it. Britt noted in Hardy’s statements to police that he agreed to a back massage from Catolico on his bed and took off his shirt.

Hardy also said Catolico orally copulated him, and after he ejaculated, he strangled him with his arm, according to a statement made by Hardy to police officers.

Hardy lived in Catolico’s apartment for two days after the murder and was later seen using his credit cards. After police found Catolico’s body, Hardy’s name was found on a Greyhound bus ticket stub in Catolico’s apartment. Hardy went AWOL following the slaying, and was arrested by U.S. Marine officials two days later. He is in county jail on $1 million bail.