Attorney Mary Ellen Attridge made the motion before San Diego Superior Court Judge Melinda Lasater, saying in court documents that Cravens may have punched Kauanui only once and "death was not the natural result of the simple assault."
The punch caused Kauanui, 24, of La Jolla, to fall to the pavement, resulting in brain injuries and his death days later on May 28, 2007. Cravens, 22, of La Jolla, will stand trial for murder on Aug. 22 before a different judge. Four others with Cravens that night have pleaded guilty to involuntary manslaughter and accessory charges.
Attridge argued that there was no proof of malice shown and unsuccessfully urged the charge be lowered. She also said there was insufficient evidence to support the murder charge and unsuccessfully tried to have two other charges dropped involving other victims.
Deputy District Attorney Sophia Roach disagreed and said the charge "is plainly one for the jury" to decide. Roach said there is enough evidence to obtain a murder conviction.
"The law is clear that group beatings can constitute murder in the second degree," wrote Roach in court documents.
Criminal defendants get the chance to ask another judge for dismissal or reduction of charges before trial, though it is often denied by the other judge.
Attridge asked that an assault charge against Cravens be reduced to a misdemeanor involving an incident at Windansea Beach in August, 2006, when Chris Jarrett had a beer bottle broken on his shoulder, with glass embedded in his skin. Jarrett also suffered a broken rib and a split lip, and sand was rubbed on his face, according to court records.
Attridge said the crime, which also involved other victims and defendants, was not reported until after Kauanui's murder. Jarrett was walking with a woman, who was punched in the face, and several people yelled at them to "get off our beach."
The judge denied the motion.
Attridge also unsuccessfully sought the dismissal of a count alleging that Cravens made a criminal threat to a man in La Jolla who was outside his home on July 2, 2005. The victim told police that a driver of a car yelled he would return to "(expletive) kill you."
Sentencing is set for Sept. 5 for Eric House, 21, Orlando Osuna, 23, Matthew Yanke, 21, and Henri "Hank" Hendricks, 22, before San Diego Superior Court Judge John Einhorn. House, Osuna and Yanke pleaded guilty to involuntary manslaughter, while Hendricks pleaded guilty to being an accessory after the fact.
Osuna faces a maximum term of five years and six months in prison because he also pleaded guilty to other assaults allegedly committed by the Bird Rock Bandits. Yanke and House face terms of four years in prison, and Hendricks could receive a sentence of three years, though people convicted of being an accessory often get probation.
The four are free on high bond amounts posted by their families and they are banned from the beach because they might encounter surfers who knew Kauanui.
Cravens remains in the downtown central jail on $1.5 million bail.