Filed 3/21/13 P. v. Moye CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Superi or 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 PROCEDUR AL BACKGROUND On March 18, 2003, defenda nt and appellant Richar d Moye, shot and killed M'shindi Ford during the course of robbing Fo rd of three pounds of marijuana. Moye was not apprehended until May 2010.2 At Moye's trial, the principal witness against him was his accomplice, Gerardo Soto. Moye and Soto were ch ildhood 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 wa s 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 droppe d Moye at Ford's house. Mo ye 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 Fo rd, and then he vomited in So to's car. They drove back to Yuma, and along the way, Moye threw the guns in a dumpster. Soto pled guilty to voluntary manslaughte r, vicarious arming and conspiracy to3 commit robbery in exchange for an agreem ent 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 Fo rd, stated that on th e evening before the shooting he went to Ford's apartment in S outh Mission Beach and was introduced to an African-American male in his twenties named Ri chard. 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 si milar 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 appr oached by a young AfricanAmerican male who was weari ng a hooded sweatshirt and ca rrying 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 th en 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 wi fe 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 bein g a fugitive," includi ng having robbed and killed.4 Moye was found guilty of first degree murder and a firearm enhancement was found true. (Pen. Code, §§ 18 7, subd. (a) & 12022.53, subd. (d).) Moye was sentenced to a term of 50 year s to life in prison.
DISCUSSION Moye's appointed appellate counsel has f iled 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 argu able, issues: (1) Did trial counsel render ineffective assistance of counsel in failing to adequately present third party culpability evidence? (2) Did trial counsel render ineffe ctive assistance of counsel in failing to move to suppress or otherwise object to evid ence of Moye's journal entries? (3) Was there sufficient evidence of first degree murder? We granted Moye permission to file a brie f on his own behalf and he responded. In addition to the issues rais ed by counsel, Moye contends (a) the prosecutor knowingly presented perjured testimony; (b) he was undu ly prejudiced when he was escorted to the restroom by a bailiff while in shackles; (c) hi s counsel failed to properly investigate the case, in particular in failing to obtain evidence which would impeach Soto w ith 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 gave5 police at the time of the shooting; (e) th e prosecutor violated his rights under Brady v. Maryland (1963) 373 U.S. 83; an d (f) cumulative error. We have reviewed the en tire record pursuant to Wende and considered the possible issues referred to by coun sel and Moye, and we find no reasonably arguable appellate issue. There is nothing in the record that woul d suggest the existence of any third party culpability evid ence. (See People v. Hall (1986) 41 Cal. 3d 826, 833; People v. Elliott (2012) 53 Cal.4th 535, 580 [direct or circum stantial evidence linking third party to crime must be sufficient to raise reasonable d oubt 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 inve stigators and identified Moye as the shooter. Moye's journal was discovere d in a home owned by a third party; thus, although the record does not indicate whet her the journal was seized pursuant to a warrant, in any event Moye had no reasonable e xpectation 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 respect s by the testimony of multiple unrelated eyewitnesses; in particular, we note th e 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.6 There is no evidence in the appellate reco rd which supports Moye's contention that the prosecutor presented perjured te stimony or violated his rights under Brady v. Maryland . Although any inadvertent exposure of shackles to th e 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 physic al restraints generally have been found nonprejudicial."].) Counsel's failure to investigate DNA eviden ce was reasonable in light of the fact that the case against Moye was not base d 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 to ld Soto was not likel y to be admissible, Moye was not prejudiced by counsel's failure to develop evidence impeaching Soto on that issue. With respect to Moye's argum ent that counsel was ineffec tive at trial, we note each area of criticism was an arguable tactical de cision 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.) Moreov er, 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 repr esented by counsel on appeal.7 DISPOSITION The judgment is affirmed.

BENKE, Acting P. J.
WE CONCUR:

HUFFMAN, J.

IRION, J.