The judge also found the remaining evidence presented to the grand jury was insufficient, requiring dismissal of both charges. The court let stand a third count of felony possession of a weapon in jail.
Police said Elarms on June 9, 2010, laid in wait for Lewis at San Mateo General Hospital, where Lewis worked, and followed him to the shopping center, where he confronted him and shot him once.
Lewis was a well-known community activist who helped found the Free At Last drug-rehabilitation program in East Palo Alto and who was instrumental in starting the successful parolee-reentry program. The two knew each other as youths in East Palo Alto.
The killing stumped police for six months until Elarms met with investigators claiming he had information about the crime. He allegedly made statements to police that implicated himself in the crime.
Judge Mark Forcum found Elarms incompetent to stand trial, and in July 2011, ordered him hospitalized. The court later ruled he could be treated by the mental hospital involuntarily if necessary.
Atascadero State Hospital doctors found Elarms competent in May. Judge Lisa Novak ruled on Aug. 22 that he was competent to stand trial with the aid of medication. Elarms tried to fire his attorney, McDougall, who had argued in August that Elarms was still not competent. The court did not allow the change of attorney.
San Mateo County District Attorney Steve Wagstaffe's office said the defense did not raise the issue of insufficient evidence to the grand jury in its dismissal motion, and it was not argued during arguments on Monday. The prosecution objected to the dismissal of charges.
The case was continued to Nov. 13 for further proceedings on the remaining weapons charge. The judge did not allow the prosecution's request to discharge the more than 100 prospective jurors returning Tuesday morning. Prosecutors had asked to dismiss the jurors since a questionnaire informed jurors that the defendant was charged with murder.
A defense motion for bail was also denied, and Elarms remains in custody on no bail status.
Prosecutors have not decided if they will appeal the court's ruling. McDougall could not be reached for comment.
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