Filed 3/21/13 P. v. Moye CA4/1 

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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 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. 
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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 
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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 AfricanAmerican 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. 
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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 
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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. 
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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. 
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DISPOSITION 

The judgment is affirmed. 

BENKE, Acting P. J. 

WE CONCUR: 

 HUFFMAN, J. 

 IRION, J.