Filed 5/20/21 P. v. Kwon CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

NI KKI KWON,

Defendant and Appellant. B 303306

(Los Angeles County Super. Ct. No. BA478543 )

APPEAL from a judgment of the Superior Court of
Los Angeles County, Craig Elliott Veals , Judge. Affirmed.
Katharine Eileen Greenebaum , under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta , Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and
Theresa A. Patterson , Deputy Attorneys General, for Plaintiff and Respondent.

____________________________2 Defendant Nikki Kwon was convicted of one count of
assault with a deadly weapon

, and one count of trespass and refusing to leave private property . The trial court sentenced
Kwon to an eight

- year prison term on the assault conviction, and

a concurrent six

- month jail term for the trespass

. At trial, the People maintained that Kwon co mmitted the
instant offenses when she attacked a security guard at a church community center after the guard had asked her to leave the premises. On appeal, Kwon claims the trial court erred in
is suing an instruction supposedly suggesting she was responsi ble
for her trial counsel’s belated disclosure to the People of photographs purportedly depicting a bruise she sustained during the incident in question

. Kwon asserts that the instruction prejudiced her by diminishing the value of the photographic
evidenc e supporting her self

- defense theory

. She further argues the lower court erroneously admitted evidence of a prior uncharged trespass at a different church

. Kwon also contends
that the cumulative effect of these alleged errors warrants reversal.
We conclude that any purported instructional error was harmless because Kwon fails to demonstrate that absent this error, it was likely that the outcome of the trial would have been
more favorable to her. As set forth in our Dis cussion, Kwon’s
self

- defense evidence was weak relative to the evidence that the photographs depicted a preexisting injury

, as bolstered by her own contradictory testimony that she did not know whether the security guard caused her to sustain the bruise

. In addition, Kwon fails to make an affirmative showing that

, had evidence of the prior uncharged trespass been excluded, there is a reasonable probability she would have obtained a more favorable result at3

trial. Lastly, Kwon fails to support her claim of cumulative error.
We thus affirm.

PROCEDURAL BACKGROUND

On October 3, 2019 , the People filed a second amended
information c harging Kwon with one count of assault with a deadly weapon , in violati on of Penal Code 1 section 245, subdivision (a)(1 ) (count 1) ; and one count of trespass and refusing to leave private property , in violation of section 602, subdivision (o ) (count 2)

. On October 10, 2019, the jury found Kwon guilty on both counts. On December 26, 2019, th e trial court imposed a state prison term of eight years on count 1, and a

concur rent six

- month jail term on count 2. Kwon timely appealed the judgment of conviction.

FACTUAL BACKGROUND
We summarize only those facts relevant to this appeal.

1. The People’s Evidence

A. The instant offenses
On June 9, 2019, a small children’s carnival was held in the parking lot of St. Basil Korean Catholic Church ’s community

center

. At approximately 10:30 a.m., a longtime member of the
church saw Kwon in the community center’s dining room; Kwon
was not a member of the church. The event end ed at around

noon. Church members started cleaning up the event at around 1:30 p.m.

1 Undesignated statutory citations are to the Penal Code.4 Shortly after 2:00 p.m., a 77

- year

- old security guard, K.K., approached Kwon in the dining room and asked her to leave.
K.K. carried a metal baton as he approached Kwon , which he did
not raise or use in a threatening manner. Although Kwon stated that she could not leave because she had leg pain, K.K. did not see any injury t o Kwon’s leg and had seen her walking around earlier that day. After K.K. offered to help Kwon walk, Kwon initially cooperated by placing her palm above K.K.’s forearm and following him into another room on the premises.
Kwon then sat in a chair. K.K. placed the baton on to a table and asked Kwon to leave. Kwon tilted back and forth, and
she started to fall out of the chair. K.K. put his baton on the floor
and tr ied to catch Kwon. Because K.K. did not have enough strength to hold Kwon, the two of them fell to the ground , and
K.K. landed on Kwon

. 2
Kwon cursed at K.K., grabbed his baton, and hit K.K. twice in the right temple area of his head. K.K. felt “dazed” and started bleeding. Kwon did not move and continued to swear at
K.K. Two individual s entered the room and helped K.K. walk
outside. One of the individuals called an ambulance , whereas the other called the police. K.K. later went to the hospital and did not stop bleeding until he received five stitches on his head

. When the police arr ived, Kwon ’s clothes were covered in blood, and she appeared to be disgruntled and confused. She was uncooperative and refused to answer the officers’ questions.

2 K.K. testified that he weighed about 145 pounds on the day of the incident, and the parties stipulated that he is 5 feet 6 inches tall. An officer who later arrested Kwon testified that on June 9, 2019, Kwon weighed approximately 140 pounds and was abou t 5 feet 4 inches tall.5

Kwon yelled incoherent statements and claimed that she was the
victim. Officers decided to detain Kwon and, a lthough she initially resisted their e fforts to handcuff her, Kwon was ultimately handcuffed. Despite Kwon’s claims that the blood on her was her own, paramedics found no injury on her. The police ultimately arrested Kwon and transported her to a hospital

. The hospital
staff examined Kwon and found a scab on her head. After Kwon’s examination at the hospital, she was cleared for booking.

B. Kwon’s prior trespass
Before the People introduced evidence of Kwon’s prior trespass, the trial court issued the fol lowing instruction to the jury: “ Evidence will be introduced for the purpose of showing the
defendant committed a crime other than that for which she is on
trial. This evidence, if believed, may not be consi dered by you to

prove that the defendant is a person of bad character or that she has a disposition to commit crimes. It may be considered by you only for the limited purpose of d etermining if it tends to show a characteristic method, plan, or scheme in t he commission of criminal acts similar to the method, plan, or scheme used in the
commission of the offense in this case which would further tend
to show the existence of the intent which is a necessary element
of the crime charged or a clear connection be tween the other
offense and the one of which the defendant is accused , that it may be inferred, that if the defendant committed the other offense

, the defendant also committed the crime charged in this case. [¶] The
existence of the intent which is a necessary element of the crime charged, a motive for the commission of the crime charged, the defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime6

charged, or the crime charged is part of a larger continuing pla n or scheme. [¶] For the limited purpose for which you may
consider such evidence, you must weigh it in the same manner as you do all other evidence in this case. You are not permitted to consider such evidence for any other purpos e.” 3 On the morning of October 12, 2018, Kwon arrived at
Onesimus Ministries

. Kwon , who was not a member of that church, asked one of the pastors for assistance. Kwon appeared to be confused and was acting erratically ; she paced back and forth, and fre quently walked into and out of the restroom

. While Kwon was in the restroom, an assistant pastor could hear that Kwon was opening and closing cabinets. After the pastor asked Kwon to leave, she seemed
frustrated and acted as if she had no intention of leaving. The pastor asked Kwon to leave several mo re times. The assistant pastor told Kwon that if she did not leave, then she was trespassing. The assistant pastor thereafter called the police,
and an officer arrived within five minutes.
The officer repeatedly asked Kwon to leave the premises

, but she refused to do so. The officer then tried to put restraints
on her. Kwon resisted by pulling away from the officer. The
officer then “took her to the ground

, ” and Kwon continued to
resist by attempting to pull away from him. The officer acted in a “professional” manner throughout the entire incident.

2. The Defense’s Evidence
An attorney who represented Kwon at her arraignment on June 12, 2019 (arraignment attorney) claimed that on the date of

3 The trial court issued a substantially similar version of this instruction shortly before submitting the matter to the jury.7

that hearing

, the attorney took pictures of Kwon’s alleged injuries. According to the arraignment attorney , she took pictures of a bruise on Kwon’s left arm that was about 3 inches long and 2 and a half to 3 inches wide

. Counsel stated that she
took s everal photographs of Kwon’ s neck because Kwon had complai ned of pain in that area. The arraignment attorney further testified that she could not recall whether she had seen any bruising or abrasions on Kwon’s neck. 4
Kwon testified in her own defense. 5 As she walked by the community center on June 9, 2019, a woman s tanding outside the premises invited Kwon to come inside and stated that food was being served therein. Kwo n suggested in her testimony that she intended to go to the community ce nter that day to ask for help in protecting her from her abusive boyfriend.
Kwon later began eating a meal in the dining area

. K .K.
shook his baton as he approached Kwon. K.K. then “flipped ” Kwon’s soup as he “pulled out” her chair. Kwon told K.K. tha t after she fin i shed her meal, she intended to have a conversation
with the woman who had invited her in , and K.K. responded, “Is that right?” and backed away. Later, the woman who had ushered Kwon onto the premises went outside with Kwon, and Kwon asked the woman whether the church had any domestic violence programs

. K won telephoned a friend to pick her up , and then sat in a chair and
waited

.

4 The photographs of Kwon’s purported injuries are not in the record before us.

5 The remainder of this paragraph and the following four paragraphs summarize pertinent aspects of Kwon’s testimony.8 K.K

. thereafter took out his baton and struck Kw on on her

arm. Kwon screamed because the blow was quite painful. 6 K.K.
then struck Kwon in the back of her neck and on her head. K.K. twisted Kwon’s arm and pushed her up against a table. K.K. then pulled Kwon backward, twisted Kwon’s other arm , and pulled Kwon on to her feet

. K.K. pushed Kwon’s shoulders, causing her to fall backwards and hit her head. While Kwon was on her back, K.K. put his knee on her
stomach and choked Kwon with both hands. K.K. then began to choke Kwon with one hand, and Kwon believed that K.K.
intended to use his other hand to grab his baton and hit her again. To prevent K.K. fro m doing so, Kwon grabbed the baton
and hit him “once or so.” At some point while K.K. was on top of Kwon, he gradually lifted Kwon’s skirt. When a man who was nearby eventually told K.K. to stop choking Kwon, K.K. “all of a sudden stood up and then went outside.”

DISCUSSION

I. Kwon Fails to Establish the Trial Court Committed Reversible Error in Providing CALJIC No. 2.28 to the Jury
Before submitting the matter to the jury, the trial court
issued a version of CALJIC No. 2.28 that read as follows: “The

pro secution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the tria l.

6 Kwon testified that although K.K. attacked her, he did not explicitly tell her to leave the premises.9

Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non

- complying party’s evidence. [¶] Disclosure of evidence is required to be made at least thirty days in advance of trial. Any new evidence discovered within thirty days of trial must be disclosed immediately. In this case, the defendant failed timely to disclose the following evidence: photographs of defendant’s purported injuries t o her bo dy. [¶] Although the failure by the defense timely to disclose evidence was without lawful justification, the court has nonetheless permitted the production of this evidence during the trial. [¶] If you find that the delayed disclosure was by the defen dant personally, or was authorized by or done at the direction and control of the defendant and relates to a fact of importance rather than to something trivial and does not relate to subject matter already established by other credible evidence, you may c onsider the delayed disclosure as evidence tending to show the defendant’s consciousness of guilt or defendant’s consciousness of the lack of believability of the evidence presented in violation of the duty to make disclosure. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” Kwon concedes that her trial counsel failed to provide the People with the arraignment attorney’s photographs at least
30 days before trial. Neverthel ess, Kwon contends the trial court
erred in instructing the jury pursuant to CALJIC No. 2.28 because there was no evidence that the People were prejudiced by the delayed disclosure of the photographs or that Kwon personally caused the delay. Kwon also argues the People exacerbated the trial court’s error by stating the following in10

their rebuttal argument: “ [ T ] he defense photos of Ms. Kwon’s alleged injuries . . . . were not turned over to the People u ntil
October 3rd, the day jury selection began. And why is that? Because the defendant’s last ditch effort to stick any kind of evidence that they have to comple te her story [ sic ] . . . .” 7
We need not decide whether the trial court committed
instructi onal error because Kwon failed to demonstrate that she was prejudiced by any such error

. The parties agree that the Watson 8 standard of prejudice applies to Kwon’s claim of instructional error. “Under this standard, the [defendant] bears the burden to make an ‘affirmative showing’ ” that “ ‘ “it is reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” [Citation.] ’ ” (See Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532

– 5 33 ; ibid. [noting that this harmless error standard “applies in both criminal and civil cases”]; People v. Breverman (1998)

19 Cal.4th 142, 178 ( Breverman ).) “ ‘ “[A] ‘probability’ in this context does not mean more likely than not, but merely a
reasonable chance

, more than an abstract possibility. ” [Citation.]’ [Citation.]” (See Conservatorship of Maria B. , at p. 532.) Further, “ [a] ppellate review under Watson

. . . . focuses no t on what a reasonable jury could do, but what such a jury is likely to

7 Kwon does not argue that this passage from the People’s rebuttal argument amounts to prosecutorial misconduct. Instead, it seems that Kwon is offering this statement to show the People had u rged the jury to interpret the instruction as suggesting that Kwon was personally responsible for the delay in disclosing the photographs.

8 People v. Watson (1956) 46 Cal.2d 818 ( Watson )

.11

have done in the absence of the error under consideration.” ( Breverman , at p. 177.) “[We] may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability
the error of which the defendant complains affected the result.” ( See i bid. ) Kwon contends that the jury instruction “dramatically reduced the value” of the photographs by allowing the jury to infer that the delayed disclosure tended to show Kwon’s consciousness of guilt or her consciousness of the lack of believability of this evidence. She further claims the photographs “substantiated her testimony that she hit [K.K.] in self defense only after he had hit her and was on top of her,” and that, without them, “there was no ev idence . . . which supported her testimony.”
We conclude that even if , for argument’s sake, the trial

court should not have instructed the jury pursuant to CALJIC
No. 2.28, particularly its adverse inference s , Kwon ’s appellate
claim fails because she has not established a reasonable probability that the jury would have found that the photographs
substantiated her self

- defense theory . As discussed in greater detail below, the evidence connecting the incident at the church

to the pictures of the bruise on Kwon’s left arm was weak. 9

9 Although Kwon claims that the arraignment attorney “took another picture of [Kwon’s] neck because [Kwon] complained of pain in that area,” Kwon concedes the attorney “stated that she could not recall seeing a bruise there.” Further, Kwon does not claim that the photographs of her neck revealed

any injuri es on t hat part of her body.12

Rather, the trial evidence suggests that the photographs depicted a preexisting injury.
On cross

- examination, Kwon initially testified that one of the photographs depicte d a bruise that K.K. had caused

. Yet,
later o n during her cross

- examination, Kwon indicated that she
was unsure whether the bruise was from K.K

. Further, a transcript of the audio recording from an arresting officer’s body camera video shows that Kwon told the officer that Kwon had been “beat[en] u p” by her boyfriend, and
that , shortly before Kwon made that assertion, she told the officer to “look at [her] arm.” 10 Similarly, Kwon testified that prior to her altercation with K.K., she had “injuries on [her] head because [Kwon’s boyfriend had ] beat [e n her] up in [her] sleep ”; this testimony is consistent with the conclusion that her boyfriend

— and not K.K

. — had caused the bruise on her left arm. Additionally, Kwon testified that she thought she asked for Tylenol before the church event began, and thus before K.K. had allegedly assaulted her

. This is significant because o ne of the arresting officers testified that w hen Kwon told him she took Tylenol, she looked at a bruise on her left arm , thus carrying the implication that the bruise predated Kwon’s encounter with
K.K

. 11 The arresting officer also testified that Kwon told the medical staff she was taking Tylenol for her bruise injury.

10 The body camera video footage is not in the record before us. The transcript of the audio recording for that footage, however, is in the clerk’s transcript.

11 The arresting officer testified that Kwon stared at the bru ise shown in People’s exhibit 23B (another exhibit that is not in the record before us) when Kwon stated that she took Tylenol. Although Kwon intimated at one point during her testimony that13 In sum, the evidence suggests that Kwon sustained the
bruise on her left arm before her scuffle with K.K. , a nd that the injury may have been inflicted by Kwon’s abusive boyfriend. Conversely, it appears the only evidence potentially linking the bruise to the incident is the fact that Kwon’s photographs showed she had the bruise three days after the incident, an d Kwon’s (later retracted) testimony that K.K. caused the injury. Given these facts, it is reasonable to infer that “the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (See Breverman

, supra ,

People’s exhibit 23B depicted a bruise on her right arm, she sho rtly thereafter suggested that she misspoke and was actually referring to a bruise on her left arm. Further, Kwon does not dispute the Attorney General’s assertions that: Kwon conceded at trial that People’s exhibit 23B shows the same bruise depicted in Defense exhibit A, and the bruise shown in Defense exhibit A was on Kwon’s left arm. Under these circumstances, we presume that Kwon was looking at her left arm when she told the arresting officer she was taking Tylenol. (See Reygoza v. Superior Court (1 991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in which the Court of Appeal assumed that an assertion made by the respondent was correct because the “defendant did not dispute respondent’s claim in his reply”]; Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89

– 90 [concluding that the appellants made an implicit concession by “failing to respond in their reply brief to the [respondent’s] argument on th[at] point”] ; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139 [“We must presume all inte ndments and presumptions in favor of the judgment , and ‘ “ ‘on matters as to which the record is silent,

. . . error must be affirmatively shown

. ’ ” ’ [Citation.] ” I talics added].)14

19 Cal.4th at p. 17 7 .) Because Kwon has not made an “affirmative showing” to the contrary , we reject her claim that
the trial court’ s instruction requires reversal of her convictions

. (See Conservatorship of Maria B.

, supra , 218 Cal.App.4th at

pp. 532

– 533.)

II. Kwon Fails to Demonstrate the Trial Court Committed Reversible Error in Admitting Evidence
of Her Prior Trespass
Kwon claims the trial court erred in admitting the evidence of her prior trespass at Onesimus Ministries . Although Kwon’s argument in this regard is not altogether clear, she seems to
contend that this evidence was not relevant to establish inten t, motive

, knowledge, or a common plan or design for the purposes of Evidence Code section 1101, s ubdivision (b). (S ee also
Evid. Code, § 1101, subd. (b) [“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident

. . . ) other than his or her disposition to commit such an act.”].) Assuming arguendo

t he trial court should have excluded this evidence, Kwon does not
demonstrate that this error was prejudicial

. Kwon and the Attorney General agree that the Watson standard of prejudice applies to this claim of error. Kwon fails to satisfy that standard. K won does not even argue, let alone establish, there is a reasonable probability the jury would not
have convicted her of the trespass charge if the trial court had
excluded evidence of the incident at Onesimus Ministries

. Thus,

we need not address this issue further. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal15

argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]”].) Second, Kwon contends that “the trial court[ ] fail[ed] to clearly inform the jury that it could only consider the uncharged trespass incident [in connection with] the current t respass charge,” thereby “invit[ing] the jury to consider it when determining whether [Kwon] was guilty of assault with a deadly weapon.” Kwon does not even argue, as she must under Watson

, that absent this purported instructional error, there was a

reaso nable probability that, had the jury not heard evidence of her prior trespass, she would not have been convicted of assault with a deadly weapon

. Nor is it apparent that evidence of the prior trespass “tipped the scales in favor” of the People such that, “but for the error, [Kwon] would have stood a reasonable chance of obtaining a more favorable verdict.” (See Downing v. Barrett Mobile Home Transp. (1974) 38 Cal.App.3d 519, 525 [discussing
the Watson standard].) According to Kwon, the trial evidence
sho wed that at Onesimus Ministries , “[an] officer tried to put restraints on her[, Kwon] resisted[,] and the officer took her to the ground.” Although this evidence reflects poorly on Kwon, it does not demonstrate she has a propensity to perpetrate assaults. Thus, th ere is

— at most

— an “ abstract possi bility ” that Kwon
would have secured a more favorable outcome if the trial court had excluded evidence of the prior trespass

. (See Conservatorship of Maria B.

, supra , 218 Cal.App. 4th at p. 532.) Lastly , Kwon argues that “a juror could reasonably have concluded that the warnings in CALJIC 2.28 not only applied to the trespass charge but also to the assault charge,” and “a juror16

could easily disregard [Kwon’s] self defense argument since the photos were t he only evidence to substantiate her claim that she acted, in fact, in self defense only after being assaulted herself.” (Italics added.) To the extent this argument is comprehensible,

e vidence of Kwon’s prior trespass has no apparent connection
with the delayed discovery instruction found in CALJIC No. 2.28 or the photographs of Kwon’s bruise , and Kwon does not further
elaborate on her asserted relationship between the incident at
Onesimus Ministries on the one hand

, and CALJIC No. 2.28 and the photograp hs on the other. We thus do not address this argument further . (See People v. Evans (2011) 200 Cal.App.4th 735, 756, fn. 12 ( Evans ) [declining to address an argument that a party failed to support adequately].) For the foregoing reasons, we conclude that even if the trial court erred in admitting evidence of Kwon’s previous uncharged trespass, any such error was harmless.

III. Kwon’s Cumulative Error Claim Fails
In passing, Kwon argues vaguely that her convictions mus t be reversed because “the two [aforementioned alleged] errors taken together permitted the prosecution to paint [Kwon] in a negative manner that would not have been possible without the
errors.” (See also People v. Rivas (2013) 214 Cal.App. 4th 1410

, 1436 [“ A claim of cumulative error is in essence a due process claim and is often presented as such [citations]. ‘The “litmus
test” for cumulative error “ is whether defendant received due process and a fair trial. ” ’ [Citation.] ” ].) This appellate claim
fai ls because Kwon does not provide any fur ther analysis to support it. (See Evans

, supra , 200 Cal.App.4th at p. 756, fn. 12

. )17 DISPOSITION

The judgment is affirmed

. NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

FEDERMAN, J. *

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.