State v. Donato

• Docket Number: 38621-0-III
• Decision Date: 28 December 2023
• Parties: STATE OF WASHINGTON, Respondent, v. DERYK ALEXANDER DONATO, Appellant.
• Court: Washington Court of Appeals

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STATE OF WASHINGTON, Respondent,
v.
DERYK ALEXANDER DONATO, Appellant.

No. 38621-0-III

Court of Appeals of Washington, Division 3

December 28, 2023

UNPUBLISHED OPINION

PENNELL, J.

Deryk Donato appeals his conviction for second degree murder, with a special finding of a gang aggravator. We affirm.

FACTS

On December 9, 2018, Deryk A. Donato was housed in the Yakima County jail's Norteno gang unit, along with Julian Gonzales, Felipe Luis Jr., and Jacob Ozuna. Mr. Donato and Mr. Ozuna were roommates at the time. At around 11:30 p.m., a corrections officer looked into the unit and saw an inmate on the ground, surrounded by other inmates. After calling for backup, several officers and medical staff entered the unit and found Mr. Ozuna on the floor unconscious, but still alive, and with extreme blunt force injuries. Officers observed pools of blood, as well as blood streaked on the walls, floor, and stairway, and on the hands of Mr. Donato, Mr. Luis, and Mr. Gonzales. Mr. Ozuna was transported to the hospital where he died shortly after.

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Description of the incident

The attack on Mr. Ozuna was captured by nonaudio surveillance cameras. Video footage showed Mr. Ozuna on the second floor of the unit talking to another inmate. Mr. Donato, Mr. Luis, and Mr. Gonzales were downstairs and can be seen talking and shaking hands. Mr. Donato and the two other men then went upstairs, approached Mr. Ozuna from behind, and initiated an attack. For 12 minutes, the three men continuously punched, kicked, and stomped on Mr. Ozuna. When Mr. Ozuna tried to get away, he was cornered and taken to the ground. When Mr. Ozuna appeared to lose consciousness, the beating did not stop; the three assailants kept punching and kicking Mr. Ozuna's body, including his face. Mr. Donato, Mr. Luis, and Mr. Gonzales briefly took a break to drag Mr. Ozuna along the upstairs hallway to the top of the stairs. When Mr. Ozuna started to move again, the beating resumed until Mr. Ozuna became nonresponsive. The three men then dragged Mr. Ozuna by his feet down the stairs of the unit, causing him to hit his head on each stair on the way down. Once at the bottom of the stairs, Mr. Ozuna appeared to move his arm. In response, Mr. Donato and his companions repeatedly kicked Mr. Ozuna in the face until he stopped moving.

During the attack, another inmate, Lindsey Albright, took items from Mr. Ozuna's cell and brought them back to his own. When officers later asked for the things he took,

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Mr. Albright handed them a group of items, including a document of the "14 bonds" of the Norteno gang, books, and other pieces of paper, that were a mixture of both Mr. Ozuna and Mr. Donato's belongings. 2 Rep. of Proc. (RP) (Oct. 25, 2021) at 935, 939-40, 950.

Mr. Ozuna's autopsy revealed swelling around his head and face, bleeding in his nose and mouth, minor injuries to his hand and wrist, bruising on his neck, bruising on his chest, bruising and abrasions on his upper extremities, bruising on his right abdomen and pelvic areas, broken ribs, a liter of blood in his chest cavity, a bruise to his heart lining, contusions to his lungs, a hemorrhage near his kidneys, a one and one-half inch laceration on his scalp, and bruising and impact injuries on his skull. Although he had no skull fractures or major vessels torn, the beating caused Mr. Ozuna's brain to move around inside his skull and swell to the point where it cut off its own blood supply. Mr. Ozuna's official cause of death was rapid swelling of the brain resulting in respiratory failure. His official manner of death was homicide.

Charges

The State ultimately charged Mr. Donato in a two-count information. Count 1 charged aggravated first degree premeditated murder. One of the alleged aggravating circumstances was a gang aggravator under RCW 10.95.020(6). This aggravator alleged

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the murder was committed "to obtain or maintain [Mr. Donato's] membership or to advance [his] position in the hierarchy of an organization, association, or identifiable group." Clerk's Papers (CP) at 70. Count 2 charged Mr. Donato with second degree murder. This count alleged a gang enhancement under RCW 9.94A.535(3)(aa). The enhancement alleged Mr. Donato "committed the current offense with intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for [a] criminal street gang as defined [in] RCW 9.94A.030, its reputation, influence, or membership." Id. at 71.

Motion in limine and Knapstad^[1] motion

In a motion in limine, the State moved to admit gang evidence pertaining to Mr. Donato, Mr. Ozuna and other individuals. As alleged in the information, the State claimed Mr. Ozuna's murder was gang related.

The State's investigation revealed Mr. Ozuna was in custody for the alleged murder of Dario Alvarado. Both Mr. Ozuna and Mr. Alvarado were members of the Norteno gang. According to the State's witnesses, the Nortenos...