Yakima County Superior Court Judge Kevin Naught on Tuesday dropped one of two charges that a Norteño gang member was facing in a jailhouse killing more than two years ago.

Naught granted a motion Tuesday by Felipe Luis Jr.’s attorney to dismiss a first-degree murder charge, noting that he found prosecutors failed to demonstrate that Luis and two other co-defendants put other people in danger during an attack on a fellow gang member.

But Naught let stand the most serious charge against Luis — aggravated first-degree murder — finding that there is enough evidence between the crime and the gang membership between Jacob Ozuna and his accused attackers for jurors to consider the charge.

Luis, 21, of Yakima was originally charged with aggravated first-degree murder and, as an alternative, first-degree murder in the death of Ozuna, 36, following a brutal attack in the Yakima County jail on Dec. 9, 2018.

Prosecutors say Luis, Deryk Alexander Donato and Julian Luis Gonzalez kicked and stomped Ozuna to death for violating one of the Norteño gang’s “14 Bonds,” a code of conduct for gang members that, among other things, forbids killing fellow gang members without authorization.

At the start of the defense’s case, attorney Rick Smith moved to have both charges dismissed, arguing that the state had failed to provide evidence to back them up.

On the aggravated murder charge, Smith argued that the state failed to demonstrate that Ozuna’s killing either furthered the interests of the gang or advanced Luis’ standing in the gang.

As for the first-degree murder charge, Smith said the state didn’t show that anyone other than Ozuna was at risk in the attack, negating the element of the crime that Luis and his co-defendants created “a grave risk of death to any person” when they attacked Ozuna.

“There is no evidence that there was any other target of the attack from Mr. Ozuna,” Smith said.

Deputy Yakima County Prosecuting Attorney Sam Chen said anyone who had come to Ozuna’s aid during the 13-minute attack could have been attacked themselves.

But Naught said that, after watching videos of the attack, most of the assault occurred in the unit’s upper tier, where the inmates were still locked in their cells and not at any risk.

Smith also tried to argue that prosecutors failed to demonstrate that Ozuna’s killing was to advance the gang or the participants’ standing in the gang. He said gang experts who testified at the trial did not provide evidence a juror could use to prove the killing was gang-related.

But Naught said prosecutors presented evidence that the four were all documented Norteño gang members, that they were housed in a gang-segregated housing unit without objection, that Dario Alvarado, whom Ozuna was accused of killing in Toppenish, was also a gang member and was wearing gang attire the last time he was booked into the county jail, and that killing another gang member violated the Norteños’ code of conduct.

“Membership in groups such as churches, social clubs, community groups and associations with a gang is protected by our First Amendment right of association,” Naught said, denying Smith’s motion and allowing the jury to consider the charge. “Therefore, before evidence of street-gang affiliation can be admitted, there must be a nexus ... between the crime and the association before the charge can go forward. I find for both the aggravator and the evidence, there was a connection between the gang’s purposes and values as well as the crime committed.”

If convicted, Luis would receive a mandatory life-without-parole sentence.

Prosecutors say Luis, Donato and Gonzalez jumped Ozuna, who was awaiting trial for killing Alvarado, as he talked to other inmates in the upper tier of the housing unit. In security video of the attack, the men are seen punching and kicking Ozuna, who runs to the far end of the tier before he’s dragged unconscious by his feet down the stairs, where the beating resumes.

Jurors again watched video footage from the jail, this time focusing on the time before the attack. Smith is arguing that there was no intent to kill Ozuna in the attack.

Gonzalez, 23, of Toppenish entered an Alford plea to first-degree murder in March, and was sentenced to 24 years in prison. His plea allows him to maintain his innocence while acknowledging that prosecutors had enough evidence to have convicted him.

Donato, 27, of White Swan, is undergoing a mental competency review.

The trial is in its third week.