BAKERSFIELD, Calif. (KGET) — Court documents say Fredi Rivera used a homophobic slur just minutes before shooting LGBTQ+ advocate Daniel Landeros, but the prosecutor on the case says Rivera won’t be charged with a hate crime, and one local defense attorney says free speech could be the reason.

It’s been 35 days and you can still see caution tape where Landeros was shot and killed at Yokuts Park on his birthday, Sept. 18. He just turned 43.

Landeros’ friends say he was a fierce advocate who gave a voice to victims until he became the victim.

“If this happened to anybody else in the community, there’s no doubt in my mind that Daniel would be right here doing the exact same thing I’m doing,” said Robert Petersen, one of the late advocate’s friends.

BPD detectives arrested 27-year-old Rivera of Delano for the murder.

Court documents say Rivera shouted a homophobic slur at Landeros and his friend as they were taking a birthday stroll through Beech Park and Yokuts Park. After the slur, Landeros started to argue with Rivera.

Minutes later, a shot rang out in the dark. Landeros was pronounced dead at the scene at 11:18 p.m.

Investigators say Rivera was at a park known for its high volume of homosexual activity, in a black H3 Hummer, wearing a black hat, black shirt and black shorts. However, the prosecutor on the case says he won’t be charged with a hate crime.

In a statement to 17 News, Deputy District Attorney Samantha Allen said, “We filed the charges based on the evidence submitted. The defendant is presumed innocent until proven guilty beyond a reasonable doubt.”

Local Defense Attorney David Torres says reasonable doubt is the key, and that it’s tough to prove hate crimes because free speech is protected.

“This term that they’re using, this hate term — was that the single primary motivation behind the actual homicide itself?” said Torres.

More details show Rivera has a violent past. According to documents, Rivera was arrested for grand theft after stealing from a Lowe’s Department Store in August.

Rivera’s ex-girlfriend and mother of his child also filed a restraining order against him for violence.

Court documents say the H3 Hummer Rivera was driving was found completely burned by an orchard near the Grapevine just nine hours after the murder of Landeros.

Torres said the prosecution is looking for these kinds of facts that will end in a conviction.

“We can show that this person was a vicious person,” said Torres. “That this person just hated individuals. He had a propensity to commit violence and we’ve got prior evidence to show that, then they’re going to show that. They’re going to show their best chess piece so to speak.”

A preliminary hearing for Rivera is scheduled in December. Rivera is charged with second degree murder, and if convicted, he could face 15 years to life in prison.