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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                         D061829

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD225582)

RICHARD MOYE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.



         In this case, which we review under the procedures set forth in People v. 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

                                             2
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.

                                                3
       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 corroborating witnesses with respect to inconsistent statements the witness gave

                                               4
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

culpability evidence. (See People 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.

                                               5
       There is no evidence in the appellate record which supports Moye's contention that

the prosecutor presented perjured testimony or violated his rights under Brady v.

Maryland. Although any inadvertent exposure of shackles 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 Strickland v. Washington (1984) 466 U.S. 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.




                                              6
                                 DISPOSITION

    The judgment is affirmed.




                                               BENKE, Acting P. J.

WE CONCUR:


                HUFFMAN, J.


                     IRION, J.




                                      7
