People v. Eichhorst CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD301504
- Trial judge
- Joan P. Weber
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- William S. Dato (author), O'Rourke, Julia C. Kelety
Analysis
The trial court convicted the defendant of vandalism, declared a mistrial on two other counts, and accepted a guilty plea to one of the mistrial counts. The appellate court affirmed the judgment after an independent Wende review found no arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of CALCRIM No. 3404 instruction“The identified issue does not rise to the level of arguable issues for reversal on appeal because the request for, and denial of, CALCRIM No. 3404 did not concern the vandalism charge—the only charge of which the jury convicted Eichhorst.” | unclear | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must independently review the record for reversible error when appointed to represent an indigent defendant on appeal.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel must file a brief identifying arguable issues to assist the court's independent review.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders framework by conducting an independent review and dismissing the single identified issue as non-arguable because it did not affect the conviction. The reasoning is sufficient for a Wende review where no other issues were raised.
How this analysis was made · dispute it
unusual dispositionAfter a jury convicted Markus Eichhorst of felony vandalism (Pen. Code, § 594) and hung on child abuse and aggravated assault counts, he pleaded guilty to the assault count and the trial court placed him on two years' formal probation with 180 days in jail and restitution; the court had earlier refused a defense request to instruct the jury with CALCRIM No. 3404 (accident). On appeal, appointed counsel filed a Wende brief, the defendant filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's refusal to instruct the jury with CALCRIM No. 3404 (accident defense), identified by appellate counsel as a potentially arguable issue under Anders“The identified issue does not rise to the level of arguable issues for reversal on appeal because the request for, and denial of, CALCRIM No. 3404 did not concern the vandalism charge—the only charge of which the jury convicted Eichhorst.” | unclear | correct | agree with court The court did not apply a conventional standard of review; it concluded the issue was not arguable because the accident instruction was requested for and denied as to counts 1 and 2, on which the jury hung and which were later resolved by a guilty plea and dismissal. Any instructional error on those counts could not have prejudiced the vandalism verdict, and the guilty plea to count 2 forecloses a challenge to trial instructions on that count. The facts recited (deliberately striking the car with pliers until the window broke) also show no evidentiary basis for an accident theory on vandalism. The conclusion is sound. |
Judgment of conviction and probationary sentence, reviewed independently under Wende/Anders for any arguable issue“We have independently reviewed the entire record as mandated by Wende and Anders and found no arguable issues.” | de novo | correct | agree with court The court followed the required Wende procedure: appointed counsel filed a no-issue brief with an Anders issue, the defendant was offered and declined the chance to file a supplemental brief, and the court conducted an independent record review and stated its result with a description of the facts and procedural history. Nothing in the opinion suggests an error in the vandalism conviction, the plea, or the probationary disposition. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacks merit may so advise the court and should identify anything in the record that might arguably support the appeal to assist the court's review.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure, explains why the only identified issue (refusal of CALCRIM No. 3404) could not support reversal because it did not bear on the sole count of conviction, and affirms after independent review. It does not separately note that the guilty plea to count 2 independently forecloses instructional challenges on that count, but that omission does not affect the result.
Opinion
Filed 8/4/25 P. v. Eichhorst 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, D084424
Plaintiff and Respondent, v. (Super. Ct. No. SCD301504)
MARKUS EICHHORST,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Lisa A. Kopelman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. Following a jury trial, Markus Eichhorst was convicted of vandalism causing more than $400 in damages. (Pen. Code,1 § 594, subds. (a) & (b)(1); count 3.) The jury was unable to reach a verdict on counts 1 and 2—charges of child abuse (§ 273a, subd. (a); count 1) and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2)—and the trial court declared a mistrial as to each count. Eichhorst subsequently pleaded guilty to count 2 in exchange for dismissal of count 1. The court sentenced him to two years formal probation with conditions that included 180 days in county jail and payment of direct restitution, along with other fines and fees. Eichhorst filed a timely notice of appeal. Appellate counsel asks this court to conduct an independent review of the record for reversible error under People v. Wende (1979) 25 Cal.3d 436. We offered Eichhorst the opportunity to file his own brief on appeal, but he did not respond. FACTUAL AND PROCEDURAL BACKGROUND The charges against Eichhorst arose out of what can be colloquially referred to as a “road rage” incident. To provide context for the charges at trial, the jury heard evidence that, following several miles of erratic driving, Eichhorst intentionally collided with another vehicle. Inside the other vehicle were Lance Tamyo and his 12-year-old son (the victim). After the accident, both vehicles pulled over and Tamyo called 911. While waiting for the police to arrive, Eichhorst approached Tamyo’s vehicle twice. He first went to confront Tamyo and became angry when Tamyo blamed him for the collision. When he returned to Tamyo’s vehicle a second time, Eichhorst tried to open the front passenger-side door, where the victim was sitting, while shouting and hitting the car with metal pliers. He eventually broke through the glass window and punched the victim before 1 Undesignated statutory references are to the Penal Code. 2 reaching into the car to grab him. Once the victim fled to the backseat, Eichhorst attempted to open the rear passenger-side door and continued hitting the vehicle with the pliers until he heard sirens approaching. Police arrived and detained Eichhorst. A police officer testified there was blood on both the broken car window and Eichhorst’s hands. DISCUSSION Appellate counsel filed a Wende brief, requesting the court independently review the record for error. In line with Anders v. California (1967) 386 U.S. 738, counsel identified a potentially arguable issue to assist with our review: Whether the trial court erred when it refused to instruct the jury with CALCRIM No. 3404. The identified issue does not rise to the level of arguable issues for reversal on appeal because the request for, and denial of, CALCRIM No. 3404 did not concern the vandalism charge—the only charge of which the jury convicted Eichhorst. We have independently reviewed the entire record as mandated by Wende and Anders and found no arguable issues. Competent counsel has represented Eichhorst on this appeal.
3 DISPOSITION The judgment is affirmed.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
KELETY, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12