Prosecutors said they will retry McInerney, 17, on the murder charge with the special allegation of lying in wait, but will not include the hate crime charge. McInerney's previous trial ended in a mistrial in September when seven jurors said he was guilty of voluntary manslaughter, five that he was guilty of murder. He was charged with murder and a hate crime for the 2008 death of Larry King, 15, in an Oxnard classroom. McInerney was 14 at the time of the crime.
Ventura County Chief Deputy District Attorney Mike Frawley declined to comment on why his office chose not to pursue the hate crime charge. He said it will come out in court.
McInerney shot his 15-year-old classmate twice in the head at point-blank range in an Oxnard classroom in February 2008. More than 30 students witnessed the shooting. Witnesses have testified that King's "feminine attire" and gender identity was upsetting some students and faculty at E.O. Green Junior High in Oxnard. The defense has portrayed King as sexually "aggressive" and suggested that McInerney was "provoked."
In a series of post-trial interviews, a number of jurors took issue with the adult charges. None were convinced it was a hate crime.