Isom v. MacCarthy CA2/4 ( 2023 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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, B315031
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MC025723)
v.
BRANDON T. MACCARTHY,
Defendant and Appellant.
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.
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.
2
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.
3
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
4
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?
5
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
6
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.
7
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.
8
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
9
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
10
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,
11
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
12
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
13
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.
14
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.
15
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
16
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
17
(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.”
18
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.
19
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.)
20
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
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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
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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
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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,
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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,
25
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
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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.
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