Filed 3/21/13 P. v. Moye
CA4/1
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD
MOYE,
Defendant and Appellant.
D061829
(Super. Ct.
No. SCD225582)
APPEAL
from a judgment of the Superior Court
of
County, Peter C. Deddeh, Judge. Affirmed.
In
this case, which we review under the procedures set forth in
Wende (1979) 25 Cal.3d 436 (Wende)
and Anders v. California (1967)
386 U.S. 738 (Anders),
we affirm the appellant's murder conviction.
FACTUAL
AND PROCEDURAL BACKGROUND
On March 18, 2003, defendant and
appellant Richard Moye, shot and killed M'shindi Ford during the course of
robbing Ford of three pounds of marijuana.
Moye was not apprehended until May 2010.
At Moye's
trial, the principal witness against him was his accomplice, Gerardo Soto. Moye and Soto were childhood friends, and
according to Soto, Moye always had a gash on one of his left front teeth.
Soto met the
victim, Ford, on the beach in San Diego
in 2000 and occasionally purchased marijuana from him. Soto usually bought two-pound quantities of
marijuana from Ford.
By 2003, Moye
and Soto were living in Yuma, Arizona. In March 2003, Moye and Soto decided to rob Ford
because Ford was not violent, and they thought he would be an easy target.
Soto contacted
Ford on his cell phone and made a number of calls to Ford on March 17 and March
18. Soto asked Ford if Soto could buy
two or three pounds of high quality marijuana.
Moye and a
second confederate, Andy, went to Ford's on March 17, but Ford was not able to
contact his source of supply.
On March 18,
Soto contacted Ford by cell phone again and very shortly thereafter, around 2:00 p.m., Soto dropped Moye at Ford's house. Moye was carrying a duffel bag for the
marijuana and $4,000 in cash. He was
armed with a nine-millimeter handgun and another handgun that Soto could not
identify. Moye returned to Soto's car
about 20 minutes later with the marijuana in the duffel bag and the cash.
Moye told Soto
he shot Ford, and then he vomited in Soto's car. They drove back to Yuma,
and along the way, Moye threw the guns in a dumpster.
Soto pled
guilty to voluntary manslaughter, vicarious arming and conspiracy to commit
robbery in exchange for an agreement in which he would receive a prison
sentence of between eight and 13 years.
A number of
other witnesses corroborated material portions of Soto's version of
events: One witness, a close friend of
Ford, stated that on the evening before the shooting he went to Ford's
apartment in South Mission
Beach and was introduced to an
African-American male in his twenties named Richard. The friend testified that a second White or
Hispanic male was also at Ford's apartment.
According to the friend, Richard had a rotten front tooth and was
similar in appearance to Moye.
A second
witness, another friend of Ford, testified that on the day of the shooting he
was smoking marijuana with Ford when they were approached by a young
African-American male who was wearing a hooded sweatshirt and carrying a black
duffel bag. Ford asked the friend to
leave because Ford had to take care of some business. The friend left and returned 30 minutes
later; he then discovered that Ford had been shot. At trial, the friend conceded that he was
high on marijuana and beer on the day of the shooting but nonetheless
identified Moye as the African-American male who had approached Ford earlier.
Ford's source
of supply and his former wife also testified.
They witnessed the robbery and the shooting and identified Moye as the
shooter, although not with complete certainty.
Later, during a
search of Moye's residence, investigators found a journal in which Moye had
written about "his crimes and being a fugitive," including having
robbed and killed.
Moye was found
guilty of first degree murder and a firearm enhancement was found true. (Pen. Code, §§ 187, subd. (a) &
12022.53, subd. (d).) Moye was sentenced
to a term of 50 years to life in prison.
DISCUSSION
Moye's appointed
appellate counsel has filed a brief setting forth the underlying facts and
procedural history and presenting no argument for reversal but asking this
court to review the record for error in accordance with Wende. Pursuant to Anders, counsel refers to
the following possible, but not arguable, issues: (1)
Did trial counsel render ineffective assistance of counsel in failing to
adequately present third party culpability evidence? (2)
Did trial counsel render ineffective assistance of counsel in failing to
move to suppress or otherwise object to evidence of Moye's journal
entries? (3) Was there sufficient evidence of first degree
murder?
We granted Moye
permission to file a brief on his own behalf and he responded. In addition to the issues raised by counsel,
Moye contends (a) the prosecutor knowingly presented perjured testimony; (b) he
was unduly prejudiced when he was escorted to the restroom by a bailiff while
in shackles; (c) his counsel failed to properly investigate the case, in
particular in failing to obtain evidence which would impeach Soto with respect
to a statement Soto made to detectives about a conversation between Moye and
his brother and in failing to obtain DNA evidence from the crime scene; (d) his
counsel failed to vigorously defend him at trial, in particular counsel failed
to make an opening statement, failed to call any witnesses on Moye's behalf and
failed to vigorously cross-examine one of the
inconsistent statements the witness gave police at the time of the shooting;
(e) the prosecutor violated his rights under Brady v. Maryland (1963) 373
U.S. 83; and (f) cumulative error.
We have
reviewed the entire record pursuant to Wende
and considered the possible issues referred to by counsel and Moye, and we find
no reasonably arguable appellate issue.
There is
nothing in the record that would suggest the existence of any third party
v. Hall (1986) 41 Cal.3d 826, 833; People v. Elliott (2012) 53
Cal.4th 535, 580 [direct or circumstantial evidence linking third party to
crime must be sufficient to raise reasonable doubt needed].) The record shows that investigators were eventually
able to connect Soto to the murder by way of reviewing cell phone records and
that Soto in turn cooperated with the investigators and identified Moye as the
shooter. Moye's journal was discovered
in a home owned by a third party; thus, although the record does not indicate
whether the journal was seized pursuant to a warrant, in any event Moye had no
reasonable expectation of privacy in that home.
(See People v. Ayala (2000) 23
Cal.4th 225, 255.) The contents of the
journal were admissible under Evidence Code section 1220 as the statements of a
party opponent.
There is
overwhelming evidence of Moye's guilt.
Soto's testimony against him was corroborated in all material respects
by the testimony of multiple unrelated eyewitnesses; in particular, we note the
cell phone records which support Soto's testimony that he was attempting to
obtain marijuana from Ford and the testimony of the source of supply and his
former wife that Ford was killed by an African-American male who was present to
buy marijuana from Ford.
There is no
evidence in the appellate record which supports Moye's contention that the
prosecutor presented perjured testimony or violated his rights under
to the jury was presumptively prejudicial, in light of the overwhelming
evidence of his guilt there is not probability that it effected the jury's
verdict. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1213 ["Even a
jury's brief observations of physical
restraints generally have been found nonprejudicial."].)
Counsel's
failure to investigate DNA evidence was reasonable in light of the fact that
the case against Moye was not based on DNA evidence, and there was little likelihood
Ford's killer would have left any DNA at the scene. Similarly, because evidence of what Soto's
brother may have told Soto was not likely to be admissible, Moye was not
prejudiced by counsel's failure to develop evidence impeaching Soto on that issue.
With respect to
Moye's argument that counsel was ineffective at trial, we note each area of
criticism was an arguable tactical decision by counsel and thus not a grounds
for disturbing Moye's conviction. (See
668, 689; In re Andrews (2002) 28
Cal.4th 1234, 1253.) Moreover, in light
of the strength of the prosecution's case, none of the matters Moye relies upon
was prejudicial either singularly or cumulatively.
We find Moye
was adequately represented by counsel on appeal.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN,
J.
IRION,
J.
