Filed 7/28/23 Isom v. MacCarthy CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MICHAEL R. ISOM

,
Plaintiff and Respondent,

v.

BRANDON T. M AC CARTHY,

Defendant and Appellant

. B 315031

(Los Angeles County Super. Ct. No. MC025723 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan Bryant

- Deason , Judge. Affirmed

. McCormick, Barstow, Sheppard, Wayte & Carruth, James P. Wagoner and Timothy J. Buchanan

, for Defendant and Appellant

. Kuzyk Law and Robert Ryan

, for Plaintiff and Respondent.2 Respondent Michael R. Isom (Isom) brought this action against appellant Brandon T. MacCarthy (MacCarthy) for injuries allegedly sustained in a motor vehicle accident. Isom alleged he was a passenger in MacCarthy ’s motor
vehicle and that MacCarthy negligently collided into a concrete culvert while driving under the influence of alcohol

. A t trial, MacCarthy attempted to show that Isom chose to
ride in a vehicle with a driver who he knew was intoxicated.

T he jury returned a verdict in Isom’s favor

, finding MacCarthy caused Isom’s damages. Th e jury also found
Isom was negligent

, allocat ing 25 percent of the fault to him. On appeal from the judgment entered on the verdict, MacCarthy argues : (1) that the trial court erred by denying MacCarthy’s motion in limine to exclude or limit the introduction of photographs, including pictures of the
accident scene and of Isom in the hospital, (2) the trial court erred by improperly reading a question from a juror to a
witness about drugs at MacCarthy’s residence, (3) the trial court erred by refusing MacCarthy’s proposed jury instruction explaining the meaning of a nolo contendere plea , (4) that Isom’s trial counsel engaged in misconduct during his closing argument , and (5) that the cumulative
effect of the asserted errors prejudiced MacCarthy

. We conclude that MacCarthy has forfeited many of his
contentions , and to the extent he has preserved others, he has failed to show pre judicial error. Accordingly, we affirm.3

FACTUAL AND PROCEDURAL BACKGROUND
A

. The June 3, 2014, Accident Isom and MacCarthy were co

- workers and members of
the International Brotherhood of Electrical Workers Union.
On June 3, 2014

, Isom and MacCarthy left work together in MacCarthy’s vehicle to go to a restaurant in Palmdale. Isom and MacCarthy stopped at a liquor store to purchase whiskey and were drinking it on the way to the restaurant, where they continued drinking alcoholic beverages

. They
then went to McCarthy’s residence

, where Isom was also temporarily staying. Two other residents of the home,
Shane Ciaccio (Shane) and Dannye Milam (Dannye)

, 1 were there when Isom and MacCarthy arrived. Shane and Dannye noticed that Isom and MacCarthy appeared to be
“buzzed ” from the alcoholic drinks. After discovering that Isom left his cell phone at the
restaurant, Isom a nd MacCarthy returned to retrieve it

. They then returned to the residence , and later set out in MacCarthy’s vehicle

, intending to go to a gentlemen’s club in
Victorville

. While driving with Isom as his passenger

, MacCarthy ran a stop sign, crashed through a chain link
fence into a concrete wash

, and directly hit a culvert

. Blood drawn at the hospital revealed that MacCarthy’s blood
alcohol level was 0. 22 , and Isom’s was 0. 19. MacCarthy was subsequently charged with felony driving under the

1 The parties provide that Dannye and Shane were married after the incident , and so Dannye was named Dannye Ciaccio at the time of trial. We will refer to the m by their first names.4

in fluence of alcohol and causing injury, to which MacCarthy entered a nolo contendere plea.
Isom sustained multiple injuries from the accident, including a traumatic brain injury, multiple facial fractures, a collapsed lung, loss of sight in his left eye, and a fractured right foot and ankle. He was hospitalized for approximately
one month before being transferred to a rehabilitation center
for more than six months

. Isom filed his complaint against MacCarthy asserting a single cause of a ction for negligence. Trial commenced on May 4, 2021 , and continued for 14 court days.

B. Trial Evidence and Motions in Limine
Isom and MacCarthy filed numerous motions in limine prior to trial

. As relevant to the appeal , MacCarthy’s motion

in limine No. 7 sought to exclude all photographs of the accident scene and of Isom’s injuries on the grounds that they were irrelevant, cumulative, and prejudicial to MacCarthy

. The motion was denied. At trial

, 176 photographs of the area of the accident taken by the California Highway Patrol (CHP) were admitted into
evidence during a CHP sergeant’s testimony about the c rash

. Additionally, nine photographs of Isom’s injuries, including pictures of him in the hos pital, were displayed during the testimony of one of Isom’s treating physicians along with an

x

- ray image of his facial injuries

. Isom further introduced 14 photographs of him and his family post

- accident during his wife’s testimony. At trial, MacCarthy objected to some of the5

photographs under Evidence Code section 352 and to others
as cumulative. MacCarthy’s motion i n limine No. 3 sought to exclude “golden rule” and “repti le theory” arguments , which he identified as “any questioning, testimony, argument, and evidence that jurors should base their verdict on damages i n an amount that the jurors’ [sic] would charge to endure similar injuries or that a verdict for the plaintiff will somehow make the community a safer and better place to
live and work.” The motion was denied.
Once the trial began

, MacCarthy called Dan nye as a witness. Dannye testified regarding the night’s events and
MacCart hy’s alcohol consumption. Dannye testified that the
home’s residents would share a “six

- pack” during the week and a bottle of whiskey every weekend. D uring her direct examination by MacCarthy’s counsel, Dannye stated that she “smoked a bowl of marijuana” the night of the incident. Further, in describing the interactions of Isom, MacCarthy, Shane, and herself th at night , Dannye testified that “[t]here may have been a co uple of casual games of beer pong

. ” Further, during Dannye’s cross

- examination, Isom’s counsel read the following from Dannye’s deposition transcript about how Dannye , at some point, came into possession of MacCarthy’s car keys:

“‘ Question: How did you come to have the keys? Who gave them to you?6 Answer: I

- I really don’t remember. I think I might have gotten them from [MacCarthy] and I remember looking at both of them and, you kn ow, you guys shouldn’t drive and why do you want to go out to the strip club and then da, da, da. And I remember saying, “Let’s get drugs and just wait
here.” And I can ’ t

-- I can ’ t remember the whole thing .’”

Shortly f ollowing this exchange, an off the record discussion took place at the bench between counsel for the parties and the court

. The court then noted that the jury
had a few questions for Dannye , which the court read to her

. One of the juror questions read wa s, “[w]as there ever any other type of drug besides alcohol and weed at the house?” Dannye responded, “Yes.” After the juror questions concluded, Isom’s counsel asked Dannye in redirect what other drugs would be at the house, to which an objection by MacCarthy’s counsel was sustained.

C. Jury Instruction MacCarthy proposed a jury instruction regarding his nolo contendere plea, Special Instruction No. 8, which read, “a party in a subsequ ent civil action may contest the truth of any matters admitted to a prior guilty plea [sic] present all facts surrounding the same including the nature of the plea.”
The trial court refused the instruction because there was no
evidence introduced about th e effect of a nolo contendere7

plea or whether it would be treated like a guilty plea at trial. MacCarthy argued the instruction was necessary to clarify that “the defense in this particular case is that Mr. Isom’s negligence was the cause of his own injur ies,” as the main issue was “showing the comparative negligence of Mr. Isom.” The trial court, however, determined that this theory was covered by the comparative fault instruction it gave the jury based on California Civil Jury Instruction (CACI) No. 405

.

D. Closing Arguments Throughout trial, the parties commented on MacCarthy’s criminal conviction arising from the accident. During his opening argument, MacCarthy’s counsel asserted, “[w]hat we know following the accident is that Mr. MacCarthy was sentenced to 180 days in jail. He was released early. He ’ ll tell you the reasons why, the facts and circumstances why he was released early. I think that ’ s somewhat compelling. It tells you a little bit about who he is
and his accountabil ity.” Later t he trial court admitted into evidence a copy of MacCarthy’s judgment of conviction for felony driving under the influence during Isom’s counsel’s direct examination of MacCarthy

. The court stated it was
not to be display ed to the jur y, but Isom’s counsel was permitted to question MacCarthy about it

. Isom’s counsel
asked MacCarthy about the specifics of the judgment, including about his jail sentence, number of days served , and
the restitution order imposed by the criminal court

.8 Regarding MacCarthy’s criminal conviction , Isom’s
counsel asserted in closing argument that there was no evidence that MacCarthy had done anything to take responsibility for his “criminal conduct ,” as MacCarthy did not pay the full restitution amount the c riminal court ordered him to pay

. Isom’s counsel averred that MacCarthy
refused to take sufficient responsibility and was continuing to do so by arguing that Isom was 100 percent responsible for his injuries. Isom’s counsel contended that MacCarthy owed a duty to Isom as a passenger in his vehicle and argued
that Isom should not be blame d for his injuries the same way

a victim of other crimes would not be blamed for what happened to them

. MacCarthy’s counsel did not object to
these statements. During MacCarthy’s closing argument, his counsel

sta ted

, “[s] o I fully understand and I’m aware that Mr. MacCarthy was convicted of drunk driving, and it is a felony.
I understand that. I ’ ve accepted that. Mr. Mac C arthy has accepted that. ” MacCarthy’s counsel later added, “ [i] n the criminal arena, we already kno w Mr. MacCarthy’s already taken responsibility for that. He ’ s already said, ‘ yep, I did it.
I'll do the time. ’ He did it. Paid the fine. He did it. [¶] B ut in this arena, well, he ’ s able to fight for himself and he ’ s able
to say, ‘ I did it, but guess what, look what that guy did. He ’ s the reason that we ’ re here. ’ A nd that ’ s what we ’ re doing. ” MacCarthy’s counsel then asked the jury to find Isom 100 percent responsible for his own injuries.9 During Isom’s closing rebuttal argument, the court
instructed the jury

, although no objection had been made,
“w e’re not here punishing the crime, okay? He admitted that he did it. You all already know that. You heard it from his mouth and you heard the plea. But tha t has already been taken care of in criminal court, okay ? T his is civil. This is damages. This is all the things you ’ ve been hearing. No question that he got convicted. No question about any of
that. You ’ ve got it, okay? But this is only about the civil damages. ”

E. Verdict On May 27, 2021, the jury returned its special verdict, finding that MacCarthy was negligent in causing injury to Isom, and that MacCarthy’s negligence was a substantial factor in causing Isom ’s harm. Further, the jury a ssigned 25 percent of responsibility to Isom for his injuries. Isom was awarded special and general damages totaling $2 0,636,313.44

. After reducing the award by 25 percent for Isom’s comparative negligence, the trial court entered judgment in the net amount of $15 ,477,235.08 for him

. MacCarthy timely appealed the judgment.

DISCUSSION
A. Asserted Evidentiary Errors

1. Standard of Review The trial court has broad discretion in determining the
relevance of evidence. ( People v. Crittenden (1994) 9 Cal.4th10

83, 132.) The trial court also has discretion to exclude otherwise admissible evidence if its probative value is substantially outweighe d by the probability that its admission will (a) necessitate undue consumption of time; or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)
We review a trial court ’ s evidentiary ru lings for abuse of discretion. ( Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281 .) “ ‘Under this standard, a trial court ’ s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’” ( Employers Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 919 .) A “miscarriage of justice” is shown where it appears “re asonably probable” that the appellant would have
achieved a more favorable result in the absence of error. ( Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780 , 800 ( Cassim ) , citin g People v. Watson (1956) 46 Cal.2d 818, 836 .)

2

. Trial Court Did Not Abuse its Discretion in Admitting Photographs MacCarthy contends that the trial court abused its discretion by denying MacCarthy’s motion in limine No. 7 to
exclude all photographs of the accident scene and of Iso m’s injuries on the grounds that t hey were irrelevant, cumulative, and prejudicial to MacCarthy. Additionally, MacCarthy argues that the court allowed an excessive11

number of photographs of Isom and his wife. We conclude
the trial court did not abuse its discretion.
“A motion in limine is made to exclude evidence before it is offered at trial on the ground that the evidence is either irrelevant or subject to discretionary exclusion as unduly prejudicial.” ( Ceja v. Department of Transportation (2011) 201 Cal.App.4th 1475, 1480

– 148 1.) “‘The purpose of [ such ] a motion

. . . is “to avoid attempt [ ing ] to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury.”’” ( Condon

– Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist. (2007) 14 9 Cal.App.4th 1384, 1392 .) “We review a trial court’s ruling on a motion in
limine to exclude evidence for an abuse of discretion.” ( McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295

– 296.)

“‘ The admission of allegedly gruesome photograph s is basically a question of relevance over which the trial court
has broad discretion. [Citation.] “ A trial court ’ s decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. ”’ [Citation.]” ( People v. Hinton (2006) 37 Cal. 4th 839, 896.)
The trial court’s discretion extends to the exclusion of cumulative evidence. ( Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371, citing Evid. Code, § 352.) However, evidence is not irrelevant solely because it is cumulative of other evidence. ( People v. Smithey (1999) 20 Cal.4th 936, 974; see also In re Romeo C. (1995) 33 Cal.App.4th 1838,12

1843 [“Eviden ce may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence Code section 352”] .) Regarding the photographs of Isom in the hospital,
the re are five black and white photographs in total

. W hile they show tubes and wires placed on Isom from different angles , t hey are not unnecessarily gruesome or inflammatory but show his condition in the hospital. Four additional photographs focused on Isom’s face, also in black and white, were admitted at trial. Three of the photographs depict bruises, cuts, or swelling on Isom’s face, but they are

not unduly graphic

. The fourth photograph appears to show
his rec overy from his facial injuries

. T he photographs were relevant to show the extent of Isom’s injuries , and thus, t he y were probative to the issues at trial

. In addition to the hospital photographs, there is an

x

- ray of Isom’s skull that one of Isom’s treating physicians used to corroborate testimony concerning Isom’s facial injuries. Visual images “are not cumulative simply because they illustrate facts otherwise presented through testimony.” ( People v. Farnam (2002) 28 Cal.4th 107, 185

– 186 [a utopsy photographs were relevant and aided medical examiner’s testimony].) Moreover, the x

- ray itself is not gruesome or likely to inflame the passions of a jury needlessly

. Concerning the photographs of Isom and his family, MacCarthy objected only to th e first photo on the ground
that it was cumulative. The trial court admitted 14 photographs depicting Isom smiling beside his wife or13

family, for example, at a restaurant

, and at the beach. Although MacCarthy argues that the only motivation for
introduci ng the photographs was to stir the jury’s emotions and sympathies, it is not reasonably probable the jury would have reached a result more favorable to MacCarthy had these family photographs of Isom apparently enjoying his
post

- accident life been excluded. ( Cassim

, supra , 33 Cal.4th at p. 800.) Next, MacCarthy asserts that the 176 photos taken by
CHP of the accident scene were excessive and unduly prejudicial. To the extent that MacCarthy argues that the
“sheer volume ” of photographs admitted at trial was prejudicial, MacCarthy does not cite to any authority holding that the number of photographs automatically creates prejudice. The photographs were all taken at night

. Consequently, they are very dark and do not show details visible in better light. The majority show roadway signs and marking s, such as a stop sign, and the surrounding area
where the crash occurred. While they provide information about the location of the crash, they are not at all gruesome

. The photographs depicting MacCarthy’s vehicle show damage from various angles , and although they show extensive damage, they are not grap hic or inflammatory

. 2

2 MacCarthy cites to Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391 ( Hartt ), in arguing that accident photographs may be unduly prejudicial in some circumstances. In Hartt , it was determined that the trial court acted within its discretion by finding that certain photographs would be prejudicial because of blood, police cars, and misleading perspective. ( Id

. at p. 1401.) The trial court allowed a14

T he trial court reasonably could have found that the
evidence was relevant as to the force of the collision and impact , which would be indic ative of Isom’s injuries . ( Christ
v. Schwartz (2016) 2 Cal.App.5th 440, 449 [ photographs of vehicles involved in accident probative to show force of collision] .) Further more , they were probative to illustrat e the CHP sergeant’s testimony about the crash

. On this record, we cannot conclude that the court abused its discretion in admitting the photographs

. E ven assuming error, we conclude the admission of the accident scene photographs and photographs of Isom’s injuries and family did not result in a miscarriage of justice. (Evid. Code, § 353, subd. (b).)

3. The Trial Court Properly Ask ed a Witness a Question Submitted by a Juror

a. MacCarthy Did Not Object to the Juror Question McCarthy argues that the trial court abused its
discretion and prejudiced him when it read Dannye the juror question asking

, “was .

. . ever any type of drug besides

p hotograph of a trail where the subject accident occurred with prejudicial material digitally removed. ( Ibid. ) The plaintiffs “ha[d] not articulated any convincing reason to admit the ‘unaltered’ forms of the photos that would outweigh the unduly prejudic ial effect of showing blood, the twisted carcass of [the plaintiff’s] bicycle, a sheet used at the scene, and the police car situated diagonally across the trail.” ( Ibid. ) Unlike in Hartt , MacCarthy does not establish that the accident scene photographs in this case contain comparable prejudicial material , such as blood or a sheet used at the scene

.15

alcohol and weed at the house?” MacCarthy asserts that by reading this question and allowing Dannye to answer, the court created a scenario where the jury was permitted to speculate what the other drug s could be and about MacCarthy ’s consumption of unspecified drugs. The record, however, does not show that MacCa rthy objected to the juror question. “‘An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.’ [Citation.] It is unfair to the trial judge and to the adverse party to take advantage of an alleg ed error on appeal where it could easily
have been corrected at trial. [Citations

. ]” ( Children ’ s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776

– 777 ( Children’s Hospital ) ; see also Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1020 [“The failure to object or move to strike evidence at trial forfeits any challenge to the evidence on appeal”].)
After MacCarthy’s redirect examination of Dannye, the trial court read numerous questions from the jury to her

, including the question of whether there w ere drugs other than marijuana or alcohol at the residence. Prior to reading the juror questions, the record shows that an unreported
bench conference was held. There is no record that MacCarthy objected to the subject juror question about other drugs, nor did he move to strike Dannye’s response

.16 MacCarthy cites to People v. McAlister (1985) 167 Cal.App.3d 633 ( McAlister ) , for the proposition that the lack of an objection to a juror question does not forfeit the issue for purposes of appeal. In McAlister , “[t]he sole issue raised on appeal [was] whether the trial court committed prejudicial error in permitting jurors to directly question
defense wi tnesses.” ( Id . at p. 636, italics added.) During a criminal trial, the court permitted jurors to ask some witness es questions themselves in open court. ( Id. at

p p. 638

– 642 .) “ In a proper case there may be a real benefit from allowing jurors to submit questions under proper control by the court . However, in order to permit the court to exercise its discretion and maintain control of the trial, the correct procedure is to have the juror write the questions for consideration by the court and couns el prior to their
submission to the witness. ” ( Id. at p. 644.) I t was unnecessary for counsel to ob ject to improper questions by a juror in order to preserve the right on appeal

. ( Ibid. ) Given that the jurors were asking the questions themselves, “the risk of prejudice [was] too great to require counsel to be put to the choice of offending a juror by an objection or of letting improper or prejudicial testimony go in without the right to later review.” ( Ibid. )
In contrast to McAliste r , there is no suggestion that the question about other drugs in this case was asked directly by a juror. Rather, MacCarthy admits “[t]he court properly required juror questions to be submitted to the court in writing before they were read. ” Thus, McAlister is17

inapposite. (

In re Marriage of Cornejo (1996) 13 Cal.4th 381,

388 [ “‘It is axiomatic that cases are not authority for propositions not considered.’” ].) If MacCarthy had any objection to the juror question, he forfeited it by failing to
show that he objected

. ( Children’s Hospital

, 97 Cal.App.4th at pp. 776

– 777 .)

b. MacCarthy Does Not Establish the Trial Court Violated California Rules of Court,
rule 2.1033 MacCarthy further argues that the trial court violated
California Rules of Court, rule 2.1033 by not allowing MacCarthy to object on the record to the question outside the jury’s presence. We disagree. California Rules of Court, rule 2.1033 states, “[a] trial judge should allow jurors to submit written questions
directed to wi tnesses. An opportunity must be given to counsel to object to such questions out of the presence of the jury.” “ ‘ [T]he words of a statute are generally the most reliable indicator of legislative intent. [Citations.] We give
the words of the statute the ir ordinary and usual meaning and view them in their statutory context. [Citation.]

. . . “ If
the statute ’ s text evinces an unmistakable plain meaning, we need go no further. ”’” ( DeNike v. Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 384, citing In re C. H. (2011)

53 Cal.4th 94, 100.) Furthermore, “we will not read a requirement into a statute that does not appear therein.” ( Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 7918

( Moniz ) .) Here, California Rules of Court, rule 2.1033’s plain language provides that counsel must be given an opportunity to object , out of the presence of the jury

, to written juror questions for witnesses. The Rule, however, does not contain any language stating that the opportunity to object must be
on the record. Moreover , MacCarthy does not cite any authority stating that the Rule must be interpreted to require the opportunity to object to be on the reco rd. We will not now read such a requirement into the Rule. ( Moniz

, supra , 72 Cal.App.5th at p. 79 .) Although MacCarthy argue s that the court did not give
him an opportunity to object to the juror question outside the presence of the jury, MacCarthy fails to acknowledge that he had that opportunity during the bench conference that occurred before the question s were asked. Indeed, statements made by the court indicate that the court generally took written questions from the jury and reviewed them with counsel before they were read. 3 Further more ,

3 The record shows the court gave the jury the following instructions after the examination of a different witness that testified before Dannye: “Ladies and gentlemen, always, as I think I told you, at the end of a witness’s testimony

-- and if I didn’t tell you this, I’m telling you now

-- if you have any questions that you would like to ask [the witness], you have your notepad, go to the back page, write th e question down, give it to [the Courtroom Assistant], she’ll bring it to me and we’ll review it and ask [them].” The court also told the jury prior to the parties’ closing arguments: “If during the trial any of you had a question that you believed should be asked of a witness, you were instructed to write out the question and provide it to me through my courtroom staff. I shared your questions with the attorneys, after which I decided whether the question could be asked.”19

MacCarthy offers no explanation for why he did not ask to have the court reporter record any objection he had during
that conference

. “ W here the record i s silent we must presume the court correctly ruled based on what occurred in the unreported proceedings. [Citation.] ” ( Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 429.) Based on the foregoing, MacCarthy
does not show that the trial court violated California Rules of Court, rule 2.1033. In any event, any error in permitting the juror question about other drugs was harmless. P rior to the juror question being asked

, Isom’ s counsel read an excerpt from Dannye’s depos ition transcript during her cross

- examination concerning how she obtained MacCarthy’s car keys . This
included reading a statement where Dannye allegedly told MacCarthy and Isom they should not drive, and instead they should get drugs and wait at the residence

. T he jury already heard about the specter of unspecified drugs being used in
the residence , in addition to regular alcohol consumption by
the home’s resi dents

. Under the circumstances, i t is not reasonably probable that a result more favorable to MacCarthy would have resulted in the absence of the subject juror question.20

B. The Trial Court P roperly Refuse d a Proposed
Defense Instruction on the Meaning of a Nolo
Contendere Plea MacCarthy next claims that the trial court committed prejudicial error by refusing his proposed jury instruction on the effect of a nolo contendere plea. We find the court properly refused the instruction.
“The legal adequacy of jury instructions is a legal issue subject to the de novo standard of appellate review.” ( Isip v. Mercedes

- Benz USA, LLC (2007) 155 Cal.App.4th 19, 24.) “A
party is entitled upon request to correct, nonargumentative
instructions on every theory of the case advanced by him
which is supported by substantial evidence. The trial court

may not force the litigant to rely on abs tract generalities, but

must instruct in specific terms that relate the party ’ s theory

to the particular case.” ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 ( Soule ) .) “A judgment may not be
reversed for instructional error in a civil case ‘unless, after

an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of
has resulted in a miscarriage of justice.’ [C itation.]” ( Soule

, supra , at p. 580.) 4

4 Generally, to determine whether instructional error was prejudicial, we evaluate “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.” ( Soule

, supra , 8 Cal.4th at pp. 580

– 581.) In this regard, the evidence is viewed in the light most favorable to the party claiming error. ( Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 223.)21 The instruction MacCarthy sought was not necessary
to his case

. MacCarthy admitted that he was driving under
the influence when Isom was injured. At no time did MacCarthy explain, or was he questioned as to, why he
entered into the nolo contendere plea. The only references to

a nolo contendere plea appear in MacCarthy’s judgment of
conviction

, but th e term was not mentioned during trial. ( Barry v. Raskov (1991) 232 Cal.App.3d 447, 458 [trial court
under no obligation to give jury instruction if evidence is
minimal and unsubstantial].) MacCarthy argued the instruction was necessary to clarify his defense that Isom was the cause of his own injuries

. However, this theory was adequately covered by the comparative fault instruction the court gave the jury
based on CACI No. 405. There is no indication that jury was
misled by receiving this instruction

, instead of MacCarthy’s proposed instruction

, or that th ere was a miscarriage of justice

. Indeed, the jury found that Isom was 25 percent at fault for his injuries, making clear that they understood that MacCarthy’s plea did not require them to find MacCarthy 100 percent at fault

.

C. MacCarthy Forfeited Attorney Misconduct
Claims by Failing to Object and Request
Admonition s at Trial MacCarthy contends that Isom’s trial counsel engaged
in multiple instances of misconduct during Isom’s closing
argument

. However, MacCarthy admits that he did not22

object to the alleged misconduct

. Because MacCarthy did

not object

, he is preclude d from raising the issue of
misconduct on appeal.

“ In conducting closing argument, attorneys for both
sides have wide latitude to discuss the case. ‘“‘ “ The right of
counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his
views as to what the evidence shows, and as to the
conclusions to be fairly drawn therefrom. The adverse party

cannot complain if the reasoning be faulty and the
deductions illogical, as such matters are ultimately for the
consideration of the jury. ”’” [Citations.] ’ ” ( Cassim

, supra , 33 Cal.4th at p. 795.) “ An attorney who exceeds this wide
latitude commits misconduct. ” ( Id. at p. 796.) The reviewing

court independently determines “whether it is reasonably probable [that the appellant] would have achieved a more favorable result in the absence of that portion of [ the ] closing
argument now challenged.” ( Id

. at p. 802.) “A party ordinarily cannot complain on appeal of attorney misconduct at trial unless the party timely objected
to the misconduct and requested that the jury be admonished. [Citation.] The purpose of these requirements is to allow the trial court an opportunity to remedy the misconduct and avoid the necessity of a retrial; a timely objection may prevent further misconduct, and an
admon ition to the jury to disregard the offending matter may eliminate the potential prejudice.” ( Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411

– 1412 ( Rayii ) ; see also23

Cassim

, supra , 33 Cal.4th at p. 794. [“ In addition to objecting, a litigant faced with opposing counsel ’ s misconduct
must also ‘move for a mistrial or seek a curative
admonition

. . . ’”] .) “The failure to timely object and request
an admonition waives a claim of error unless the misconduct was so prejudicial that it could not be cured by an admonition [citations], an objection or request for admonition would have been futile [citation] or the court promptly overruled an objection and the objecting party had no opportunity to request an admonition [citation]. Attorney
misconduct is incu rable only in extreme cases.” ( Rayii

, supra , 218 Cal.App. 4th at p. 1412

. ) Because MacCarthy did not object to the complained of statements made by Isom’s counsel, or request an admonition or move for a mistrial, MacCarthy forfeited this issue. ( Rayii

, supra , 218 Cal.App.4th at p p . 1411

– 1412.) As to MacCarthy’s claim that it was improper for Isom’s counsel to extensively question him about the details of his criminal conviction and use the evidence to support Isom’s closing argument, MacCarthy al so did not object to any of the relevant questions . To the contrary, MacCarthy’s counsel highlighted his criminal conviction during opening and closing arguments. MacCarthy’s theory of the case asked jurors to find that although MacCarthy was obviously
i ntoxicated and drove under the influence, Isom should have known not to get into the vehicle with him. Thus, the decision to not object to the details of his conviction may have been strategic. Consequently, as with his complaints24

about Isom’s closing ar gument, MacCarthy forfeited this claim. ( Id. at p. 1412.)

In asserting that his claims should still be reviewed on the merits, MacCarthy argues that there were flagrant and repeated instances of misconduct. However, MacCarthy “has

not shown that the pu rported misconduct was so persistent

or egregious as to justify the conclusion that it was incurable.” (See Rayii

, supra , 218 Cal.App.4th at p. 1412.) Nothing in the record suggests that objections would have been futile. (See People v. Fuiava (2012) 53 Cal.4th 622, 680 [defendant forfeited claims of prosecutorial misconduct by failing to object in trial court, where “the record d[id] not establish that properly framed objections would have been in vain or provoked any ‘wrath’ on the part of the trial

co urt .

. .”].) Counsel cannot silently sit at trial, denying the

court an opportunity to stop or remedy misconduct, and then
seek a reversal on appeal. (See Rayii

, supra , 218 Cal.App.4th at p p . 1411

– 1412.) Otherwise, trial attorneys could deliberately re frain from objecting to evidence that supports their theory of the case, and if the theory does not result in the desired verdict, seek to overturn it on the basis of the objections never made.
The conduct of the counsel in the case on which MacCarthy primarily relies

, Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341 ( Simmons ), is distinguishable. Simmons involved repeated instances of
misconduct from the plaintiffs ’ counsel who “from the very beginning of the trial embarked on a campaign of hate,25

vilification and subterfuge for the sole purpose of prejudicing
the jury against [the defendant] .” ( Id. at p. 351.) Plaintiffs ’
counsel abused defense witnesses by accusin g them of wrongful conduct with no factual basis. Counsel also told
the jury that the defendant railroad would lie, cheat, steal,
elicit perjury during trial, that the railroad believed pedestrians should be damned when it came to protecting
them from tra in accidents, and that the railroad preferred
older victims of train accidents because the damage awards

were lower. (

Id. at pp. 351

– 352.) Plaintiffs’ c ounsel encouraged the jury to award compensatory damages so large that they would be punitive in nature. ( Id. at

p p. 354

- 355.) Defense counsel “objected to much of plaintiffs’
counsel’s actions and in some cases asked for admonitions.” ( Id. at p. 355.) However, the record made it clear that
further objections “ would have overemphasized the objectionable material and would have alienated the jury .” ( I bi d .) Here, MacCarthy complains of several discrete

statements made in Isom’s closing argument
, to which no objections were made

. This case does not present the flagrant and repeated instances of misconduct in Simmons

. In addition

, MacCarthy argues his misconduct claims

were not forfeited as to the golden rule arguments and appeals to community safety because he filed a motion in
limine seeking to preclude these arguments

. The motion in limine did not specify any particular evidence or argument to
be excluded. “ A motion in limine to exclu de evidence is not a sufficient objection unless it was directed to a particular,26

identifiable body of evidence and was made at a time when
the trial court could determine the evidentiary question in
its appropriate context.” ( Boeken v. Philip Morris, Inc. (2005) 127 Cal.App. 4th 1640, 1675.) Here, the court was

unaware of what statements would be made in closing
argument when MacCarthy filed the motion in limine. Therefore, MacCarthy ’s motion in limine did not preserve
the misconduct issues fo r appeal. ( Ibid. ; see also Summers v.
A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1184 [“if the evidence presented during trial is substantially different from that presented at the hearing on the motion in limine or included in an offer of proof, it is incumbent on the party who made the motion to renew the objection to the evidence”] .) MacCarthy also did not request curative admonitions for the allegedly improper arguments after they
were made. Lastly, MacCarthy argues that the trial court had an affirmative duty to counteract the alleged misconduct, even though MacCarthy did not o bject. However, MacCarthy does

not cite any binding authority holding that the trial court
had a sua sponte duty to cure what McCarthy perceives as misconduct during closing argument. (See People v. Carrera (1989) 49 Cal.3d 291, 321 [“[A] trial court has no sua sponte duty to control prosecutorial misconduct

. . .”].)

D. There is No Cumulative Error MacCarthy lastly contends that cumulative error requires reversal. As explained above, MacCarthy has27

forfeited many of his contentions, and to the extent he preserved others, he fails to show prejudicial error. ( People
v. Williams (2015) 61 Cal.4th 1244, 1291 [“We have either found no error or, in those instances where error has
been .

. . assumed, no prejudice”].) For the same reasons, we reject h is claim that he was prejudiced by the cumulative
effect of the asserted errors.

DISPOSITION
The judgment is affirmed

. Respondent is awarded

costs on appeal

. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Mori , J. We concur:

CURREY , P. J.

C OLLINS , J.