State v. Ayala

Brown, J.

Jose Ayala, convicted in Benton County of *482first degree kidnapping, argues the trial court erred by (A) ruling RCW 9A.40.010(1) makes irrelevant evidence of the alleged acquiescence of a 14-year-old victim, and (B) limiting his cross-examination on the victim’s acquiescence, thus violating confrontation principles. We disagree. First, RCW 9A.40.010(1) precludes the defense of victim acquiescence in the case of victims under 16 years old, making such evidence irrelevant. Second, a defendant’s right to confrontation does not include cross-examination on irrelevant matters. Accordingly, we affirm.

FACTS

One evening in September 1997, Gregorio Valencia, Jr., age 14, and his cousin, Jose Valencia (Mr. Valencia), age 22, were walking home from a store when Mr. Ayala stopped them to ask directions. Mr. Ayala asked if Gregorio and Mr. Valencia would get into a car driven by Jose Meraz to show them the way to a bowling alley. Mr. Ayala and Gregorio got into the backseat. Mr. Valencia rode in the front.

Instead of following directions, Mr. Meraz turned onto a road leading to Pasco. As they drove, Mr. Ayala told Gregorio he wanted money and was going to tie Gregorio’s hands and tape his eyes. Gregorio later testified his hands were not tied, but Mr. Ayala did put tape over his eyes as the vehicle drove over a bridge into Pasco.

The vehicle stopped at a securely fenced and gated storage facility. Gregorio was taken to a motor home within the fence where he remained with Mr. Meraz until police rescued him the next afternoon. Mr. Ayala and Mr. Valencia left to make ransom calls to Gregorio’s parents. Despite warnings, the police were notified. After tracing the calls, police arrested Mr. Ayala and Mr. Valencia near a telephone booth in Kennewick. Both were questioned at the Kennewick Police Department.

Mr. Ayala led police officers to the Pasco storage facility where they found Gregorio unharmed. Mr. Ayala’s written confession implicated Mr. Meraz and Mr. Valencia. Mr. *483Ayala was charged in Benton County with first degree kidnapping.

At his jury trial, Mr. Ayala unsuccessfully attempted to show a four-person conspiracy, including Mr. Meraz, Mr. Valencia, and Gregorio, to commit extortion rather than kidnapping. Mr. Ayala named Mr. Valencia as the mastermind. Mr. Valencia allegedly told Mr. Ayala it would be easy to get Gregorio’s father to pay a large sum of money to get his son back by making Gregorio’s father think the kidnapping was connected to a drug debt. Mr. Ayala made an offer of proof that he had reason to believe Gregorio was cooperating; while in jail he learned Gregorio was in on the plan and was to receive a ransom share. The State successfully moved to exclude this evidence on the ground that the kidnapping statutes made irrelevant evidence of any purported acquiescence by a victim less than 16 years old. The trial court later refused Mr. Ayala’s proposed instructions on first degree extortion as an uncharged alternative to kidnapping.

The jury found Mr. Ayala guilty as charged. Mr. Ayala appealed. In May 1999, a court commissioner granted the State’s motion on the merits. In May 2000, Mr. Ayala successfully filed a motion to recall the mandate. We granted Mr. Ayala’s motion for discretionary review, treating it as a motion to modify the commissioner’s ruling.

ISSUES

A. Did the trial court err by interpreting RCW 9A.40.010(1) to preclude the defense of victim acquiescence when considering 14-year-old Gregorio’s abduction under the definition of “restrain” and concluding evidence of Gregorio’s alleged acquiescence to his abduction was irrelevant? B. Did the trial court violate confrontation principles by limiting cross-examination of Gregorio on the subject of acquiescence?

*484ANALYSIS

A. Statutory Interpretation

Review is de novo for the choice, interpretation, and application of a statute to particular facts. State v. Johnson, 96 Wn. App. 813, 816, 981 P.2d 25 (1999). Mr. Ayala was charged pursuant to RCW 9A.40.020(1), which provides “[a] person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent: (a) [t]o hold him for ransom or reward,... or (d) [t]o inflict extreme mental distress on him or a third person . . . .” Abduct is defined as “restrain [ing] a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force . . . .” RCW 9A-.40.010(2). The term “restrain” means to:

restrict a person’s movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is “without consent” if it is accomplished by (a) physical force, intimidation, or deception, or (b) any means including acquiescence of the victim, if he is a child less than sixteen years old . . . and if the parent, guardian, or other person or institution having lawful control or custody of him has not acquiesced.

RCW 9A.40.010(1) (emphasis added).

Mr. Ayala contends the kidnapping statute does not apply here because Gregorio was actually a coconspirator in an attempted extortion of Gregorio’s father. Mr. Ayala offered first degree extortion instructions as an alternative to the charged kidnapping. Without clearly articulating the basis for his claim, Mr. Ayala urges an equal protection violation in the charging decision. But, prosecutors have wide discretion when determining whether to charge a particular offense so long as the charge is not based on an unjustifiable standard such as race, religion, or other arbitrary standard or classification. State v. Pittman, 59 Wn. App. 825, 833, 801 P.2d 999 (1990). Both the United States Supreme Court and the Washington Supreme Court favor a *485prosecutor’s charging discretion, subject to constitutional constraints focused on unequal standards of prosecution. State v. Talley, 122 Wn.2d 192, 214-15, 858 P.2d 217 (1993). But, where two crimes have different elements, the focus is on the elements that can be proved. Id. at 215.

Here, Mr. Ayala mainly complains the prosecution did not plea bargain with him as was done with Mr. Valencia and Mr. Meraz. In reply, the State notes different participation by Mr. Ayala as compared to the others leading to pleas to reduced kidnapping charges. Because the State has wide charging discretion and shows a nonarbitrary standard or classification, Mr. Ayala cannot substantiate an equal protection violation. Moreover, chapter 9A.40 RCW clearly applies to these facts. Mr. Ayala cannot and does not argue extortion is a lesser or inferior crime of kidnapping. Equal protection in our context is generally not violated when crimes have different elements. See Talley, 122 Wn.2d at 215. Further, Mr. Ayala does not specifically argue a violation of general or specific statute principles. See State v. Hodgson, 44 Wn. App. 592, 597-98, 722 P.2d 1336 (1986) (discussing general versus special statute principles). Additionally, Mr. Ayala did not assign error to the trial court’s denial of his extortion instructions.

Finally, Mr. Ayala incorrectly casts our issue as one of evidence and abuse of discretion, not one of statutory interpretation and law. Even so, the trial court correctly excluded irrelevant evidence regarding Gregorio’s alleged acquiescence because RCW 9A.40.010(1) clearly strips away a 14-year-old victim’s acquiescence as a defense. The presentation of relevant evidence and the scope of the cross-examination of a particular witness lie within the trial court’s sound discretion. We review these decisions for a manifest abuse of discretion. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). We conclude none occurred here.

B. Confrontation

Next, Mr. Ayala contends the trial court’s limits on *486cross-examination of Gregorio to show he cooperated and was a willing victim violated his Sixth Amendment right to confront witnesses. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). However, Mr. Ayala has no constitutional right to have irrelevant evidence admitted as part of his defense. Id. at 15; see also State v. Buss, 76 Wn. App. 780, 788-89, 887 P.2d 920 (1995) (noting defendant’s right to cross-examine essential State witness as to relevant matters). Further, cross-examination is generally limited to the scope of direct testimony. ER 611(b). Here, the State limited its direct examination to kidnapping elements; thus denying cross-examination on Mr. Ayala’s irrelevant extortion theory was not an abuse of discretion. See State v. Lord, 117 Wn.2d 829, 870, 822 P.2d 177 (1991).

Moreover, a close review of the record indicates cross-examination was permitted on whether Gregorio was abducted in the context of whether he voluntarily cooperated and if he could have left at any time. Further, Mr. Meraz in cross-examination related Gregorio’s and Mr. Valencia’s cooperation and characterized certain actions as done voluntarily. In closing, Mr. Ayala’s counsel vigorously argued Gregorio was not abducted or kidnapped and went along consensually and voluntarily. Defense counsel implied Mr. Ayala was improperly charged. Thus, contrary to Mr. Ayala’s argument, he was permitted to elicit evidence supporting his theory of the case and argue that theory to the jury. Given the above, Mr. Ayala was not deprived of his constitutional right to present a defense consisting of relevant evidence, in other words, evidence not otherwise inadmissible. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). Accordingly, the trial court did not err in its evidence rulings.

CONCLUSION

We hold the trial court did not err when choosing, interpreting, or applying the first degree kidnapping provisions of chapter 9A.40 RCW. Further, the trial court did not *487violate confrontation principles in the challenged evidence rulings.

Affirmed.

Kurtz, C.J., concurs.