P. v. Moye CA4/1

California Court of Appeal · D061829 · 2013-03-21 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD225582
Trial judge: Peter C. Deddeh
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), Richard D. Huffman, Sr., Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:57Z · confidence high

The trial court convicted Richard Moye of first-degree murder and a firearm enhancement, sentencing him to 50 years to life. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende, finding no reasonably arguable issues of error.

Ruling reviewed	Standard	The court	The model
Conviction for first-degree murder and firearm enhancement “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.”	de novo	correct	agree with court The court applied the Wende standard to review the entire record for any error. It found the evidence of guilt overwhelming, supported by accomplice testimony corroborated by multiple independent witnesses and physical evidence (cell phone records, journal). The court correctly identified that the evidence was sufficient to sustain the conviction beyond a reasonable doubt.
Admissibility of journal entries “The contents of the journal were admissible under Evidence Code section 1220 as the statements of a party opponent.”	de novo	correct	agree with court The court addressed the potential suppression issue by noting the lack of a reasonable expectation of privacy in a third-party home and the admissibility of the statements as party admissions. This correctly applies the Fourth Amendment and Evidence Code principles to the facts presented in the record.
Ineffective assistance of counsel (investigation and trial strategy) “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.”	de novo	correct	agree with court The court applied the Strickland standard, finding that counsel's strategic decisions (not investigating DNA, not calling witnesses, cross-examination choices) were reasonable tactical decisions. Given the strength of the prosecution's case, the court correctly concluded there was no prejudice.
Prejudice from shackles “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.”	de novo	correct	agree with court The court acknowledged the presumptive prejudice of shackles but applied the harmless error analysis. Citing People v. Slaughter, it correctly determined that the overwhelming evidence of guilt rendered any potential prejudice harmless beyond a reasonable doubt.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to review the record for error when no arguable issues are found.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to seek leave to withdraw, with the court conducting an independent review.
relied: People v. Hall (1986) 41 Cal.3d 826 — Standard for evaluating third-party culpability evidence in the context of ineffective assistance or sufficiency of evidence.
relied: People v. Elliott (2012) 53 Cal.4th 535 — Direct or circumstantial evidence linking a third party to the crime must be sufficient to raise a reasonable doubt.
relied: People v. Ayala (2000) 23 Cal.4th 225 — A defendant does not have a reasonable expectation of privacy in a home owned by a third party.
relied: People v. Slaughter (2002) 27 Cal.4th 1187 — Brief observations of physical restraints by a jury are generally found to be nonprejudicial, especially in the face of overwhelming evidence.
relied: Strickland v. Washington (1984) 466 U.S. 668 — The two-prong test for ineffective assistance of counsel: deficient performance and resulting prejudice.
relied: In re Andrews (2002) 28 Cal.4th 1234 — Counsel's strategic decisions are generally not grounds for disturbing a conviction if they are arguable tactical choices.

The appellate opinion: sound — The opinion is procedurally sound as a Wende review. It systematically addresses each potential issue raised by counsel and the appellant, applying the correct legal standards (Strickland, harmless error, sufficiency of evidence) and citing appropriate authorities. The conclusion that no reasonably arguable issues exist is supported by the record description provided in the opinion.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Richard Moye of first degree murder with a firearm enhancement for the 2003 robbery-killing of M'shindi Ford, and the trial court sentenced him to 50 years to life. On a Wende/Anders appeal in which counsel raised no arguable issues and Moye filed a supplemental brief, the Court of Appeal independently reviewed the record, rejected the suggested issues (ineffective assistance, journal admissibility, sufficiency, perjury/Brady, shackling, cumulative error), and affirmed.

Ruling reviewed	Standard	The court	The model
Judgment of conviction for first degree murder and firearm enhancement; sufficiency of the evidence “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”	substantial evidence	correct	agree with court Accomplice testimony was corroborated by cell phone records, two eyewitnesses to the shooting, two of the victim's friends who identified Moye, and Moye's own journal admitting robbery and killing. The felony-murder/robbery context and the accomplice corroboration requirement (Pen. Code, § 1111) are plainly satisfied on this record, so the court's conclusion is well supported.
Admission of Moye's journal entries without suppression motion or objection (possible ineffective assistance for failing to move to suppress) “The contents of the journal were admissible under Evidence Code section 1220 as the statements of a party opponent.”	unclear	correct	unsure The hearsay ruling under Evidence Code section 1220 is clearly right. The Fourth Amendment reasoning is weaker: the opinion earlier describes the journal as found 'during a search of Moye's residence,' yet concludes he had no reasonable expectation of privacy because the home was 'owned by a third party.' Ownership by another does not defeat a resident's or overnight guest's privacy interest, so People v. Ayala is a strained fit. The result is nonetheless defensible because the record is silent on whether a warrant issued, which independently defeats an ineffective-assistance claim on direct appeal (People v. Mendoza Tello), but the court did not say so.
Rejection of ineffective assistance of counsel claims (third party culpability, failure to investigate DNA and impeachment evidence, no opening statement, no defense witnesses, cross-examination) “we note each area of criticism was an arguable tactical decision by counsel and thus not a grounds for disturbing Moye's conviction.”	mixed	correct	agree with court Under Strickland and In re Andrews, tactical decisions are presumed reasonable, and on direct appeal the record shows no third party culpability evidence meeting the Hall/Elliott threshold. The court also found no prejudice given the strength of the case, which independently disposes of each claim. The opinion's recital misdescribes the impeachment issue (it refers to what 'Soto's brother' told Soto while Moye framed it as a conversation between Moye and his brother), but the prejudice analysis still controls.
Alleged prejudice from jury's exposure to Moye in shackles while escorted to the restroom “in light of the overwhelming evidence of his guilt there is not probability that it effected the jury's verdict.”	unclear	harmless error	agree with court People v. Slaughter and the Duran line hold that brief, inadvertent observations of restraints are generally nonprejudicial. The court's statement that such exposure is 'presumptively prejudicial' overstates the law in the defendant's favor, but it then correctly finds no reasonable probability of effect on the verdict, so the outcome is correct.
Rejection of claims that the prosecutor knowingly presented perjured testimony and violated Brady v. Maryland “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.”	unclear	correct	agree with court Claims of perjury and suppressed evidence depend on facts outside the appellate record; on direct appeal, with nothing in the record supporting them, the court correctly found no arguable issue. Such claims, if any, belong in a habeas petition.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel files a no-issue brief, the Court of Appeal must independently review the entire record for arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel may refer the court to possible but not arguable issues in a no-merit brief.
relied: People v. Hall (1986) 41 Cal.3d 826 — Third party culpability evidence is admissible only if it is capable of raising a reasonable doubt as to defendant's guilt.
relied: People v. Elliott (2012) 53 Cal.4th 535 — Direct or circumstantial evidence linking a third party to the crime must be sufficient to raise a reasonable doubt.
misapplied: People v. Ayala (2000) 23 Cal.4th 225 — A defendant may challenge a search only where he had a legitimate expectation of privacy in the place searched; it does not hold that a defendant lacks such an expectation in his own residence merely because a third party owns it.
relied: People v. Slaughter (2002) 27 Cal.4th 1187 — A jury's brief observation of a defendant's physical restraints is generally nonprejudicial.
relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance requires deficient performance and prejudice, with strong deference to counsel's tactical choices.
relied: In re Andrews (2002) 28 Cal.4th 1234 — Reasonable tactical decisions by counsel do not establish ineffective assistance.
relied: Brady v. Maryland (1963) 373 U.S. 83 — Prosecution's suppression of material exculpatory evidence violates due process.
missed: People v. Mendoza Tello (1997) 15 Cal.4th 264 — An ineffective assistance claim based on failure to move to suppress cannot be resolved on direct appeal where the record does not show the circumstances of the search or the reasons for counsel's omission; such claims belong on habeas.

The appellate opinion: sound with gaps — The court properly conducted independent Wende review, addressed each issue counsel and Moye identified, and correctly concluded the overwhelming, corroborated evidence left no arguable claim of prejudice. It stumbled, however, in reasoning that Moye lacked a privacy interest in a home the opinion itself called his residence, a point better resolved by the silent record under Mendoza Tello, and it slightly misstated the shackling presumption, though neither gap affects the result.

How this analysis was made · dispute it

inconsistent with cited authority

Opinion

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.

Cites, in this corpus

People v. Elliott S027094 · 2012-02-02
In Re Andrews S017657 · 2002-08-26
People v. Slaughter S024116 · 2002-05-30
People v. Ayala S009108 · 2000-06-08
People v. Hall Crim. 24565 · 1986-05-22
People v. Wende Crim. 20851 · 1979-10-12