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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

NIKKI KWON,

Defendant and Appellant.

 B303306

 (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 committed 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 

issuing an instruction supposedly suggesting she was responsible 

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 

evidence 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 Discussion, 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 at 
3

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 charging Kwon with one count of assault with a 

deadly weapon, in violation of Penal Code1 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, the trial 

court imposed a state prison term of eight years on count 1, and a 

concurrent 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 ended 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 to 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 onto 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 tried 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 individuals 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 arrived, 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 

about 5 feet 4 inches tall. 
5

Kwon yelled incoherent statements and claimed that she was the 

victim. Officers decided to detain Kwon and, although she

initially resisted their efforts 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 following 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 considered 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 determining if it tends to show a 

characteristic method, plan, or scheme in the 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 between 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 crime 
6

charged, or the crime charged is part of a larger continuing plan 

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 purpose.”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 frequently 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 more 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 several photographs of Kwon’s neck because Kwon had 

complained 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 standing outside the 

premises invited Kwon to come inside and stated that food was 

being served therein. Kwon suggested in her testimony that she

intended to go to the community center 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. that

after she finished 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. Kwon 

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 Kwon 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 onto 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. from 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 

prosecution 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 trial. 

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 to her body. [¶] 

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 defendant 

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 consider 

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. Nevertheless, 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 in 
10

their rebuttal argument: “[T]he defense photos of Ms. Kwon’s 

alleged injuries . . . . were not turned over to the People until 

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 complete her story [sic] . . . .”7

We need not decide whether the trial court committed 

instructional error because Kwon failed to demonstrate that she 

was prejudiced by any such error. 

The parties agree that the Watson8 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–

533; 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 not 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 urged 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 ibid.) 

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 evidence . . . 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 inferences, 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 injuries on that 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 depicted a bruise that K.K. had caused. Yet, 

later on 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] up” 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[en 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 one of the 

arresting officers testified that when 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 

bruise 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 that 
13

In sum, the evidence suggests that Kwon sustained the 

bruise on her left arm before her scuffle with K.K., and 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, and 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 

shortly 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 (1991) 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 intendments and presumptions in favor of 

the judgment, and ‘ “ ‘on matters as to which the record is 

silent, . . . error must be affirmatively shown.’ ” ’ [Citation.]” 

Italics added].)
14

19 Cal.4th at p. 177.) 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 intent,

motive, knowledge, or a common plan or design for the purposes 

of Evidence Code section 1101, subdivision (b). (See 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 

the 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. Kwon 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 legal 
15

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 trespass 

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 

reasonable 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 

showed 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, there is—at most—an “abstract possibility” 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 juror 
16

could easily disregard [Kwon’s] self defense argument since the 

photos were the 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, 

evidence 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 photographs 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 must 

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 

fails because Kwon does not provide any further 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.