People v. Kwon CA2/1 ( 2021 )

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, B303306
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA478543)
v.
NIKKI KWON,
Defendant and Appellant.
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.
____________________________
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
2
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.
3
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.
4
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
5
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.
6
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.
5The remainder of this paragraph and the following four
paragraphs summarize pertinent aspects of Kwon’s testimony.
7
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.
8
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
9
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).
10
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.
11
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
12
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].)
13
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
14
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
15
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.)
16
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.
17