SAN DIEGO -- Five young men accused in the beating death of a professional surfer in La Jolla last year are not members of a street gang but still must stand trial for murder, a judge ruled Thursday.

After an eight-day preliminary hearing, Superior Court Judge John Einhorn found that Deputy District Attorney Sophia Roach failed to meet her burden of proving that Seth Cravens, Orlando Osuna, Hank Hendricks, Matthew Yanke and Eric House -- part of a group called the Bird Rock Bandits -- were members of a gang.

Einhorn ruled, however, that the defendants should stand trial for the murder of 24-year-old Emery Kauanui.

The judge said he wasn't satisfied that he had "a clear, factual, resulting picture of what happened" the night the victim was seriously injured, but probable cause existed that the crime had been committed.

The judge also ordered Cravens to trial on charges of making a criminal threat, battery and assault causing great bodily injury in connection with a series of attacks dating back to 2004.

Einhorn also found that Osuna, Yanke and Hendricks should stand trial in connection with previous assaults.

Cravens, 22; Osuna, 23; Yanke, 21; House, 21; and Hendricks, 22, all face a maximum of 15 years to life in prison if convicted of second-degree murder. They will be back in court June 10 for arraignment and to get a trial date.

Mary Ellen Attridge, attorney for Cravens, told reporters the gang allegation, if proven, could have changed misdemeanor charges into felonies.

"I think the gang part of it was a fiction to begin with," Attridge said. "I think that is was ridiculous. I think that it is a way to try to bootstrap poor evidence into something greater. I think it was a result of public outcry and a result of a political reaction."

Roach told reporters that prosecutors will look at the judge's ruling and decide what to do next.

"We evaluated this case, we believe that there was sufficient cause for us to add the gang enhancement," Roach said. "We are disappointed but respect the court's ruling in that respect.

"At this point we will have to take the matter under submission," the prosecutor said. "We will look at all the evidence that was produced at the hearing and make a determination after careful consideration as to whether any enhancements or charges should be re-filed."

Einhorn said he was bothered by the fact that the case was initially issued as a murder case against Cravens, Osuna, Yanke and House, but the additional assault charges were added after witnesses told authorities that the defendants were part of a gang called the Bird Rock Bandits.

Hendricks, a former La Jolla High and University of New Hampshire quarterback, was charged several months later after he told police what he saw the night of the fight.

Einhorn said the defendants had known each other since elementary school and shared a social and athletic bond rather than a bond to take over Bird Rock.

Despite their "questionable adult views" to drink, crash parties and get into fights, the defendants were not part of a gang, Einhorn said.

"It just doesn't fit," the judge said of the gang allegation.

Richard Gates, the attorney for Hendricks, said he was "bitterly disappointed" that his client was bound over for trial on the murder charge.

"To put his life in the same position as Mr. Cravens' life isn't really fair to Mr. Hendricks," Gates told reporters. "And the only reason he's here is he cooperated with authorities on two occasions, was led to believe he could get on with his life, got on with his life, and then came back here voluntarily to face these charges. The only evidence that was presented against him were his own statements."

Hendricks told police that Kauanui's ex-girlfriend, Jennifer Grosso, came upon the fight scene and started kicking House -- who was on top of the victim -- and tried to pull House off Kauanui.

Hendricks said he pulled Grosso off the pile and told her she didn't know what was going on.

"He did nothing ... he did nothing to contribute to what ultimately happened to Emery," Gates said.

Roach said the assault on Kauanui was a group attack in which each defendant aided one another in order to ensure victory for their gang.

Kauanui was beaten on May 24, 2007, at the direction of Cravens, who encouraged House to fight Kauanui after the victim spilled or poured a drink on House at a nearby bar, Roach said.

Prosecutors theorize that once House and Kauanui squared off in a one-on-one fight, Cravens, Yanke, Osuna and Hendricks joined in hitting and kicking the victim while he was on the ground.

Defense attorneys said none of their clients kicked or beat Kauanui after he was on the ground, as alleged by prosecutors.

The prosecution alleges Cravens sucker-punched Kauanui in the chin when he got up, knocking him out and causing him to fall back and hit his head on the pavement.

Kauanui was placed on life-support and died four days later at a hospital from brain injuries.