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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

MICHAEL R. ISOM,

Plaintiff and Respondent,

v.

BRANDON T. MACCARTHY,

Defendant and Appellant.

 B315031

 (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. 

At trial, MacCarthy attempted to show that Isom chose to 

ride in a vehicle with a driver who he knew was intoxicated. 

The jury returned a verdict in Isom’s favor, finding 

MacCarthy caused Isom’s damages. The jury also found 

Isom was negligent, allocating 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 prejudicial 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 and 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 them by their first names. 
4

influence 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 action 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 crash. 

Additionally, nine photographs of Isom’s injuries, including

pictures of him in the hospital, 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 the 
5

photographs under Evidence Code section 352 and to others 

as cumulative. 

MacCarthy’s motion in limine No. 3 sought to exclude 

“golden rule” and “reptile theory” arguments, which he 

identified as “any questioning, testimony, argument, and 

evidence that jurors should base their verdict on damages in 

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 Dannye as a 

witness. Dannye testified regarding the night’s events and 

MacCarthy’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. During 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 that night, Dannye testified that “[t]here 

may have been a couple 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 know, 

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 following 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 was, “[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 subsequent 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 the effect of a nolo contendere 
7

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 injuries,” 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 accountability.” Later the 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 displayed to the jury, 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 criminal 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 blamed 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 

stated, “[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. MacCarthy has 

accepted that.” MacCarthy’s counsel later added, “[i]n the 

criminal arena, we already know 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. [¶] But 

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.’ And 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,

“we’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 that has already been 

taken care of in criminal court, okay? This 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 assigned 25 

percent of responsibility to Isom for his injuries. Isom was 

awarded special and general damages totaling 

$20,636,313.44. 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.4th 
10

83, 132.) The trial court also has discretion to exclude 

otherwise admissible evidence if its probative value is 

substantially outweighed 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 rulings 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 “reasonably 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), citing 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 Isom’s 

injuries on the grounds that they were irrelevant, 

cumulative, and prejudicial to MacCarthy. Additionally, 

MacCarthy argues that the court allowed an excessive 
11

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, 1480–1481.) “‘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) 149 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 photographs 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 [“Evidence 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, 

there are five black and white photographs in total. While 

they show tubes and wires placed on Isom from different 

angles, they 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 recovery from his facial injuries. The photographs were 

relevant to show the extent of Isom’s injuries, and thus, they 

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 [autopsy 

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 the first photo on the ground 

that it was cumulative. The trial court admitted 14 

photographs depicting Isom smiling beside his wife or 
13

family, for example, at a restaurant, and at the beach. 

Although MacCarthy argues that the only motivation for 

introducing 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 

markings, 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 graphic 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 a 
14

The trial court reasonably could have found that the 

evidence was relevant as to the force of the collision and 

impact, which would be indicative 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].) Furthermore, they were probative to illustrate

the CHP sergeant’s testimony about the crash. 

On this record, we cannot conclude that the court 

abused its discretion in admitting the photographs. Even 

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 Asked 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 

photograph 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 prejudicial 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 drugs could be and about 

MacCarthy’s consumption of unspecified drugs. The record, 

however, does not show that MacCarthy 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 alleged 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 were 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 witnesses.” (Id. at p. 636, italics added.) During a 

criminal trial, the court permitted jurors to ask some

witnesses questions themselves in open court. (Id. at 

pp. 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 counsel prior to their 

submission to the witness.” (Id. at p. 644.) It was 

unnecessary for counsel to object 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 McAlister, 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 is 
17

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 witnesses. 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 their 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, 79
18

(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 record. We will 

not now read such a requirement into the Rule. (Moniz, 

supra, 72 Cal.App.5th at p. 79.) 

Although MacCarthy argues 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 questions 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 Furthermore, 

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 the 

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. “Where the record is 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. Prior to the juror question 

being asked, Isom’s counsel read an excerpt from Dannye’s 

deposition 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. The jury already 

heard about the specter of unspecified drugs being used in 

the residence, in addition to regular alcohol consumption by 

the home’s residents. Under the circumstances, it 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 Properly Refused 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 abstract 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.’ [Citation.]” (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 the 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 there 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

Admonitions 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 not
22

object to the alleged misconduct. Because MacCarthy did

not object, he is precluded 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 

admonition 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 also 
23

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 incurable 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 pp. 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 also 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 

intoxicated 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 complaints 
24

about Isom’s closing argument, 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 purported 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 

court . . .”].) 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 pp. 1411–1412.) Otherwise, trial attorneys 

could deliberately refrain 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 accusing 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 train accidents, and that the railroad preferred

older victims of train accidents because the damage awards

were lower. (Id. at pp. 351–352.) Plaintiffs’ counsel

encouraged the jury to award compensatory damages so

large that they would be punitive in nature. (Id. at

pp. 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.” 

(Ibid.) 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 exclude 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 for 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 object. 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 has 
27

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 his 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.

COLLINS, J.