SAN DIEGO -- A judge refused Monday to throw out a murder charge against a La Jolla man accused of punching a professional surfer during a fight last year, causing the victim to fall back and a suffer a fatal head injury.

Mary Ellen Attridge, the attorney for Seth Cravens, argued before Judge Melinda Lasater that her client shouldn't be charged with murder because he had no knowledge that punching 24-year-old Emery Kauanui would result in his death.

Attridge said it was a voluntary manslaughter case, at best.

The attorney argued that Kauanui got up after fighting with another man, Eric House, and came at Cravens before getting knocked out.

House, 21; Orlando Osuna, 23; and Matthew Yanke, 22, pleaded guilty to involuntary manslaughter on June 27 in connection with Kauanui's death and are scheduled to be sentenced Sept. 5.

Another man, 22-year-old Hank Hendricks, pleaded guilty to being an accessory after the fact for concealing Cravens from police.

Lasater questioned whether Kauanui may have been injured from the group beating before getting up and being one-punched by Cravens.

But Attridge countered that Kauanui was not injured during the first fracas with House and was not a "vulnerable victim."

The attorney told reporters that she intends to appeal Lasater's decision to the 4th District Court of Appeal.

Cravens, 22, is scheduled to go to trial on second-degree murder and other charges on Aug. 22. He could face up to 15 years to life in prison if convicted of second-degree murder.

Deputy District Attorney Sophia Roach said earlier that the May 24, 2007, assault on Kauanui was a group attack in which each defendant aided one another in order to ensure victory for their gang.

After a preliminary hearing in June, Judge John Einhorn ruled the defendants were not members of a criminal street gang called the Bird Rock Bandits.

Cravens is also charged with making a criminal threat, battery and assault causing great bodily injury in connection with a series of separate attacks dating back to 2004.