A judge ordered five men to stand trial for second-degree murder in the slaying of professional surfer Emery Kauanui Jr., but the judge also dismissed allegations the defendants worked as a criminal street gang known as the Bird Rock Bandits.
Following nine days of testimony and arguments, San Diego Superior Court Judge John Einhorn told attorneys Thursday, May 22, he did not feel the slaying of Kauanui, 24, was first-degree murder but felt there was enough evidence against all five to face a jury on a second-degree murder charge. Kauanui was beaten outside his mother’s home in La Jolla on May 24, 2007, and died four days later on Memorial Day from a skull fracture and brain injuries.
Einhorn said the group known as the Bird Rock Bandits didn’t fit the legal definition of a gang under state law. One prosecution witness, a gang expert, said it was law enforcement, and not gang members, who determine who is a gang member. All San Diego police officers and investigators who testified during the long preliminary hearing said they had never heard of the Bird Rock Bandits until after Kauanui was killed.
The judge also said that the group wasn’t formed specifically to commit crimes. It was only after Kauanui died that charges were filed involving assaults against other victims going back to 2005.
District Attorney spokesman Paul Levikow said afterwards that a decision to refile the gang allegations has not been made.
Defense attorney Mary Ellen Attridge, who represents Seth Cravens, said afterward the gang allegations “were ridiculous.” All five defense attorneys had attacked the gang allegations, which could have led to increased sentences if the men are convicted.
As a result, several felony assault charges were reduced to misdemeanor battery crimes by the judge after he threw out the gang allegations. The other charges involve unrelated victims who said Cravens and other co-defendants assaulted them after they crashed parties where alcohol was served.
The judge ordered Cravens, 22, Orlando Osuna, 23, Eric House, 21, Henri Quinn-William Hendricks, 22, and Matthew Yanke, 21, to be arraigned on the charges on June 10, when a trial date may be set.
One irony with the nickname of the Bird Rock Bandits is that none of the charges involves theft. Attridge and other defense attorneys asked each witness if they ever saw anyone in the group display a gang sign or challenge or see gang graffiti. None of the witnesses said they had ever seen such a thing.
With the gang issue thrown out, it means the trial could be shorter since the prosecution would not be presenting witnesses to prove they were in a gang.
Einhorn dismissed one charge against Cravens of dissuading a witness from testifying in a July 8, 2005, incident at a house in La Jolla. A police officer testified a witness thought someone was following him after someone yelled at him from a truck that passed him following an earlier incident with Cravens. The judge did order Cravens to stand trial on a charge of making a criminal threat.
Cravens was ordered to stand trial on 10 other assault charges involving previous incidents. Osuna was ordered to stand trial in six assaults and one misdemeanor battery. Yanke and Hendricks were ordered to stand trial on three assaults and one battery that occurred on Dec. 31, 2006, when they crashed a party in La Jolla with Cravens.
Assault charges involving two women and two men who were allegedly punched in the face by Cravens and others were all reduced to a misdemeanor battery after the gang allegation was thrown out. One charge in the New Year’s Eve party case was dropped by the prosecutor.
Cravens is the only one who has not been able to post bail, and he remains in the George F. Bailey Detention Facility on $1.5 million bail. The other four are free on high bail figures, ranging from $1 million to $500,000, and bond conditions bar them from frequenting area beaches where they might run into other surfers.