Filed 1/21/14 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. VO NGHIA SY, Defendant and Appellant. D061858

(Super. Ct. No. SCD228655)

THE PEOPLE, Plaintiff and Respondent,

v. JACQUELINE DUENAS SY, Defendant and Appellant. D062163

(Super. Ct. No. SCD228655)

CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego County, Edward P. Allard III and Leo Valentine, Jr., Judges. Affirmed.2 John L. Staley, under appointment by th e Court of Appeal, for Defendant and Appellant Vo Nghia Sy. Jill M. Klein, under appointment by th e Court of Appeal, for Defendant and Appellant Jacqueline Duenas Sy. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Er ic Swenson, Melissa Mandel and Charles C. Ragland, Deputy Attorney s General for Plaintiff and Respondent.

INTRODUCTION Separate juries convicted Jac queline Duenas Sy and Vo Nghia Sy 1 of selling or possessing counterfeit marks and fo und true allegations they sold or possessed 1,000 or more articles, or articles valued at more than $400, displaying or containing a counterfeit mark (Pen. Code, 2 § 350, subd. (a)(2)). 3 The court placed Jacqueline and Vo on summary probation for three years. The court granted Vo's motion to reduce his conviction to a misdemeanor (§ 17, subd. (b)). However, the court (a different judge) denied Jacqueline's motion to reduce her conviction to a misdemeanor, indicating it

1 When referring to the Sys individually , we use their first names for clarity. 2 Further statutory references are also to the Penal Code unless otherwise stated. 3 The Sys were initially tried together. Th e first jury convicted Jacqueline, but was unable to reach a verdict on the charge against Vo and the court declared a mistrial as to him.3 would reconsider the motion at a later time after ensuring Jacque line complied with the terms of her probation and di d not continue selling counte rfeit goods. The court later ordered Jacqueline and Vo to pay al most $43,000 in victim restitution. On appeal, Jacqueline and Vo both cont end there was insuffi cient evidence to support their convictions, the court committ ed instructional error, section 350 is unconstitutionally vague, and the court's victim restitution or der was infirm in multiple respects. Vo separately contends the court er red by refusing to consider the merits of his motion to disqualify the prosecut ion, or alternatively, by re fusing to continue the motion so it could be heard on the me rits. Jacqueline separately contends the court erred by denying her motion to reduce he r conviction to a misdemeanor. We conclude there is no merit to any of these contentions and affirm the judgment.
BACKGROUND 4
Prosecution Evidence–Both Trials The Sys had a business selling handbags, clothing, and jewelry. The merchandise bore the names and logos of such designer brands as Chanel, Coach, Gucci, Louis Vuitton, Rock & Republic, Tiffany & Co. (Tiffa ny), and True Religion. These brands are registered trademarks. The Sys' merchandise was not au thentic and they were not authorized retailers of the brands.

4 The Sys each filed motions requesting we take judicial notice of documents in the record of the other's appeal. As we have consolidated the appeals for decision, the motions are moot.4 An investigator for a private investig ative company specializing in trademark, copyright, and patent infringem ent investigations went to a trade show in March 2010. Vo manned a booth there and the investig ator saw two customers looking at purses underneath a table in the booth. The investig ator inquired about purchasing some of the items. Vo gave him Jacqueline's business ca rd and cell phone numb er. Vo told the investigator to call the number to arrange to purchase mercha ndise out of the Sys' hotel room. The investigator called the phone number and left a message, but never received a call back. In April 2010 the investigator went to the Sys' store in San Diego. Jacqueline sold the investigator eight counterfeit items: one Coach handbag for $10, another Coach handbag for $15, a pair of True Religion jean s for $25, a pair of Rock & Republic jeans for $25, a Louis Vuitton wallet for $35, a Co ach wallet for $10, an d two Ed Hardy belts for $5 each. Vo walked into the store as the investigator was leav ing with his purchases. They discussed watches Vo had for sale. Vo had a case with watches bearing the brand names Chanel, TAG Heuer, Rolex, and Hublot. Vo opened the case and took out one of the watches. As he held it, he talked to the investigator about the quality and prices of the watches, which ranged from $150 to $200. He said he had better quality watches than Santee Alley, an area in Los Angeles wher e vendors and merchants are known to sell knockoff merchandise. He also said he di d not have much merchandise at the time because "it was hard to get stuff from China," and custom s had confiscated 35 cases of5 True Religion jeans. Two weeks later, the i nvestigator returned to the store and bought another pair of counterfeit True Religion jeans for $25. Law enforcement officers s ubsequently searched the stor e. With assistance from the investigative company's empl oyees, the officers seized over 13,000 counterfeit items. Additional Prosecution Evidence–Vo's Trial At the Las Vegas trade show, Vo kept ce rtain purses under a table covered by a tablecloth. He pulled up the tablecloth to s how the purses to customers and invited them to his hotel room for an "after-hours sale ," where they could buy knockoff purses, clothes, and jewelry. A customer saw a Chanel branded watch displayed at Vo's booth. The Chanel
word mark 5 appeared on both the face and back of the wa tch, which to the customer meant the watch "reflects the brand of Chanel." The customer ordered one of the watches and picked it up at the Sys' store in San Diego. She paid $175 for it. A genuine Chanel watch of the same design woul d range in price from $5,250 to over $19,000, depending on the number of diamonds on it. No one told the customer the watch was genuine and she did not believe it wa s genuine because its ba ck had a sticker rather than an engraved insignia. Instead, she though t she was buying "[s]omething that looked like a Chanel watch but was not actually a Chanel watch." The customer also purchased other items from the Sys. She associated a ll of the items with the brands they represented because of

5 A word mark is a registered trad emark consisting of a name or a word.6 their look and feel and because they had ve ry similar logos, but sh e did not believe the items were genuine. Jacqueline told the investigator one of the purses he bought was a Coach purse. However, she did not say it was authentic a nd the investigator did not believe it was authentic. Another customer bought a Chanel bra nded purse, a Coach br anded purse, and a Tiffany branded neck lace from Jacqueline. Th e customer paid $45 for the Coach purse. She knew it was not real because of the pric e and quality. She knew the Chanel purse and the Tiffany necklace were not real for similar reasons. She acknowledged, however, the logo on the Tiffany necklace was consistent with the logo Tiffany uses. The customer also arranged for the Sys to sell branded ite ms at school fundraiser s. She knew these items were fake as well. Jacqueline was convicted of possessing or selling counterfeit goods. The Sys paid Coach $8,000 for using Coach's trademark without authorization. Defense Evidence

 Jacqueline's Trial A family friend testified Jacqueline had a very good reputation in the community for being honest and she was a person whom he trusted. In addition, he testified he had purchased merchandise from Jacqueline and knew from the price and appearance the items were not real "except fo r the logos," which "looked like they were the real thing." Jacqueline also told him th e merchandise was not real. The family friend's wife testified she ha d purchased purses from Jacqueline on at least four occasions. Although the purses had brand names on them, she was never7 confused about th eir authenticity. A third customer of the Sys testified she purchased items from Jacqueline at a farmer's market and at the Sys' store. Although the items looked like branded merchandise, the customer was never confused about their authentic ity because of their prices and "they looked a little cheaper." Jacquelin e never told the customer the merchandise was real. She also never told th e customer the merchandise was counterfeit. Regardless, the customer never be lieved the merchandise was real. A fellow vendor at one of the farmer 's markets where Jacqueline sold her merchandise testified she never saw Jacqueli ne sell branded items. When shown one of Jacqueline's counterfeit Louis Vuitton wallets, the vendor said she was not familiar with the brand and did not know what kind of wa llet it was. When show n one of Jacqueline's counterfeit Tiffany items, the vendor stated sh e would not know off-hand whether it was actually a Tiffany item. However, she also stat ed, "I'm pretty sure, if it says 'Tiffany' engraved in it, I believe it's a Tiffany ite m." The vendor later explained, "I don't recognize brand name items ju st off the cuff. But once I saw the names and how they're written on them, I know those are brand items." The manager of the farmer's market te stified Jacqueline sold purses, clothes, jewelry and makeup at the market. Some of the purses had the Coach brand name on them. The manager was never confused about the authenticity of the purses because they did not look like genuine Coach purses and J acqueline sold them for far less than what a genuine purse would cost.8 Defense Evidence

 Vo's Trial Several people who dealt with the Sys testified Jacqueline never represented her items were genuine and they neve r believed her items were genuine. DISCUSSION I Insufficient Evidence Claims A The Sys contend there was insufficient evidence to support their convictions because Jacqueline's customers were not confused about the authenticity of her merchandise. " 'On appeal we review the whol e record in the light most favorable to the judgment to determine whether it discloses s ubstantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty bey ond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the Pe ople rely mainly on circumst antial evidence. [Citation.] "Although it is the duty of th e jury to acquit a de fendant if it finds that circumstantial evidence is susceptible of tw o interpretations, one of whic h suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable do ubt. ' "If the circ umstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be re conciled with a cont rary finding does not warrant a reversal of the judgment." ' [Cit ations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "tha t upon no hypothesis whatever is there9 sufficient substantial ev idence to support [the conviction]." ' " ( People v. Cravens (2012) 53 Cal.4th 500, 507-508.) Section 350, subdivision (a), prohibits a person from willfully manufacturing, intentionally selling counterfeit marks, or knowingly possessing counterfeit marks for sale. A "counterfeit mark" is "a spurious ma rk that is identical with, or confusingly similar to, a registered mark and is used, or in tended to be used, on or in connection with the same type of goods or services for which the genuine mark is registered." (§ 350, subd. (e)(3).) The mark does no t have to be displayed on th e outside of an article. ( Ibid. ) A " 'spurious mark' includes genuine marks us ed on or in connection with spurious articles and includes identical articles contai ning identical marks, where the goods or marks were reproduced without authorizati on of, or in excess of any authorization granted by, the registrant." ( Ibid. ) " 'Knowingly possess ' means that the person possessing an article knew or ha d reason to believe that it was spurious, or that it was used on or in connection with spurious ar ticles, or that it wa s reproduced without authorization of, or in excess of any auth orization granted by, the registrant." ( Id. , subd. (e)(4).) Here, the evidence shows Jacqueline, as a principal, and Vo, as an aider and abettor, sold counterfeit items to numerous people at various venues. The items bore the word marks of such co mpanies as Coach, Louis Vuitton, an d Chanel. The evidence also shows law enforcement officers seized over 13,000 of thes e items from the Sys' San Diego store. Accordingly, there is ample evidence the Sys both in tentionally sold and knowingly possessed counterfeit marks.10 The fact the Sys' customers may not have been confused abou t the authenticity of the Sys' merchandise does not alter our conclu sion. The statute proscribes the sale or possession for sale of either identical or confusingly similar marks. (§ 350, subds. (a) & (e)(3).) In this case, the evidence, including a comparis on of certified copies of registered trademarks with the marks on th e Sys' merchandise, sh ows the Sys' were selling and possessing for sale identical marks. The prosecutor, therefore, did not have to establish the marks were confusingly similar. 6 The federal authorities relied upon by the Sy s do not persuade us to the contrary. Federal law expressly requires a counterfeit ma rk to be likely to cause confusion or mistake, or to deceive. (15 U.S.C., § 1114, subd. (1) [civ il]; 18 U.S.C., § 2320, subd. (f)(1)(A)(iv) [criminal].) Although California civil law contains the same requirement (Bus. & Prof. Code, § 14245, subd. (a)), sect ion 350 does not. The Sys have not provided us with any authority indicating this distin ction was other than purposeful. Thus, the federal authorities relied upon by the Sys offer us with no guidance in this matter. B The Sys also contend there is insufficient evidence to support their convictions because there was no evidence they ever intend ed to defraud or deceive anyone. Section 350, subdivision (a), pr oscribes the willful manufacturing, intentional selling, or knowing possession of counterfeit marks. Wh ile these mental states may suggest or

6 Although we do not rest our decision on this point, we note in Jacqueline's case there was some evidence the marks were confus ingly similar as a fellow farmer's market vendor testified she believed one of the Sys' fake Tiffany items was actually from Tiffany because it had the Tiffa ny brand name on it.11 encompass intent to defraud, intent to defraud is not an element of the offense. (See People v. Dieguez (2001) 89 Cal.App.4t h 266, 279-280 [finding intent to defraud was " 'built into' " statutory langua ge of Ins. Code § 1871.4, su bd. (a)(1) because the specified mental states necessarily in volved intent to defraud, ma king a separate element or instruction for intent to defraud unnecessary].) Rodriguez-Valencia v. Holder (9th Cir. 2011) 652 F.3d 1157 and Tall v. Mukasey (9th Cir. 2008) 517 F.3d 1115 do not hold to the contrary. Rather, these cases hold that, for federal immigration law purposes, a violati on of section 350, subdivision (a)(2), is an inherently fraudulent crime because the conduc t of willfully manufacturing, intentionally selling, or knowingly possessing a counterfeit mark results in e ither an innocent purchaser being tricked into b uying a fake item or the owner of the mark being deprived of its value. ( Rodriguez-Valencia v. Holder, supra , 652 F.3d at p. 1160; Tall v. Mukasey , supra , 517 F.3d at pp. 1119-1120.) These case s do not discuss and, therefore, have no bearing on whether the prosecution must prove intent to defraud as an element of section 350. C Jacqueline separately contends there wa s insufficient eviden ce to support her conviction because the prosecut or did not prove she knew the marks on her items were counterfeit or, more particularly , that she knew the marks on her items were identical to or confusingly similar to registered marks. However, as Jacqueline repeatedly points out, all of her customers knew she was selling kno ckoffs. In addition, a family friend and customer of Jacqueline's testified the logos on Jacqueline's items "l ooked like they were12 the real thing." Further, among the items law enforcement officers seized from the Sys' store were bins of metal plates engraved wi th designer logos that could be affixed to generic purses or wallets. A jury could r easonably infer from th is evidence Jacqueline knew full well her items were identical to or confusingly similar to registered marks. D Jacqueline also separately contends ther e was insufficient evid ence to support her conviction because the jury did not have any genuine ma rks to compare with the marks on her merchandise. Specifically, she conte nds the prosecution wa s not permitted to use certified copies of registered trademarks to prove its case and instea d had to provide the jury with authentic merchandise bearing the registered trademarks for comparison. However, section 3 50 contains no such requirement and United States v. Chong Lam (4th Cir. 2012) 677 F.3d 190 ( Lam ), which Jacqueline cites to su pport her point, does not persuade us we must impl y such a requirement. In Lam , the prosecution sought to prove defe ndants were trafficking in counterfeit Burberry goods. ( Lam , supra , 677 F.3d at p. 194.) The pr osecution introduced evidence Burberry had registered its signature plaid pattern as a mark. The prosecution also introduced into ev idence authentic handbags displaying this mark as well as samples of the allegedly counterfeit items, which displayed a similar, but not identical, plaid pattern. Consequently, before reaching its guilty verdict, the jury was able to make a side-by-side comparison of the authentic a nd allegedly counterfeit items. ( Id. at pp. 195-197.) In concluding there was sufficient evidence to uphold defendants' convictions on appeal, the court pointed to and approved of the jury's side-by-side comparison, but the court never13 considered whether a side-by-side comparison was required in that or any other case. ( Id. at p. 200.) An opinion is not authority for a proposition not considered in it. ( Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Moreover, the Lam case is not factually analogous to this case because the jury in Lam was tasked with determining whether two different plaid patterns were substantially indistinguishable from one another. ( Lam , supra , 677 F.3d at pp. 195-196.) It is not difficult to fathom why the jury may have need ed to compare the actual plaid patterns to make this determination. In contrast, the ju ry in this case was ta sked with determining whether the Sys' merchandise bore word mark s identical to regist ered word marks. Jacqueline has not persua ded us the jury was unable to e ffectively accomplish this task by comparing the word marks on the Sys' merchandi se to certified copies of the registered word marks. II Instructional Error Claims A There is no pattern jury instruction fo r a section 350 viola tion and the courts overseeing the Sys' trials crafted somewhat different instructions. In both cases, the courts instructed the juries th at to establish a section 350 violation, the People had to prove the defendant intentiona lly sold or knowingly posse ssed a counterfeit mark. The courts also instructed the juries on the definitions of "knowingl y possess," "counterfeit mark," and other terms not direc tly at issue in this appeal.14 The court in Jacqueline's case further inst ructed the jury, "In order for a counterfeit mark to be identical to, or confusingly si milar to, a registered mark, it does not matter that the specific persons who purchased th e goods may not have been confused or deceived. The test is whet her the defendant's use of the mark was likely to cause confusion, mistake, or deceptio n to the public in general. In this regard, you should determine whether an average consumer wo uld be deceived into believing that the product was made by the genuine trademark owne r." The court in Vo's case instructed the jury, " 'Confusingly simila r' is to be measured by the standard of a reasonable consumer." Vo's defense counsel crafted his own subs tantially different instruction, which he requested the court give. Among its differe nces, the requested instruction included the factors used by the Ninth Circuit to aid a jury in determining whether a defendant's use of a trademark was likely to cause confusion ab out the source of the goods. The court declined to give the in struction, finding it did not accura tely state the applicable law and the court's own instruction was adequate. B 1 Vo contends the court erred in failing to give his requested instruction because it pinpointed his theory of defens e. " ' "[T]he trial court norm ally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a ri ght to an instruction that pinpoints the theory of the15 defense . . . ." ' [Citation.] The court, however, 'may properly re fuse an instruction offered by the defendant if it in correctly states the law, is argumentative, duplicative, or potentially confusing [citation] , or if it is not supporte d by substantial evidence [citation].' " ( People v. Bivert (2011) 52 Cal.4th 96, 120.) As we previously explained, while federal law and California civil law spec ifically require a counterfeit mark to be likely to cause confusion or mistake, or to deceive, California criminal law does not. (Compare 15 U.S.C., § 1114, subd. (1); 18 U.S.C., § 2320 , subd. (f)(1)(A)(iv); & Bus. & Prof. Code, § 14245, subd. (a) with § 350.) Therefore, the cour t properly declined to give Vo's instruction as it misstate d the law and would have potentia lly confused the jury. 2

a The Sys both contend the cour ts' instructions were defici ent in multiple respects. " '[A] claim that a court failed to properly inst ruct on the applicable principles of law is reviewed de novo. [Citation.] In conducting this review, we first ascertain the relevant law and then "determine the mean ing of the instructions in th is regard." [Citation.] [¶] The proper test for judging the adequacy of instructions is to decide whether the trial court "fully and fairly instructed on the applicable law . . . ." [Citation.] " 'In determining whether error has been committe d in giving or not giving ju ry instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of unders tanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to16 support the judgment rather th an defeat it if they are re asonably susceptible to such interpretation." ' " ( People v. Mathson (2012) 210 Cal.App.4th 1297, 1311-1312.) Jacqueline contends the court's instructi on in her case was prejudicially deficient because it failed to inform th e jury the prosecution had to prove Jacqueline's use of counterfeit marks was likely to cause confusion. Several of Vo's claimed instructional deficiencies are similarly premised on the a ssertion the likelihood of confusion, mistake, or deception is an implied element of a section 350 violation. As we have rejected this assertion, we must necessarily rej ect any claims premised on it. b Vo also contends the court erred by failin g to instruct the ju ry the prosecutor had to prove Vo possessed or sold a counterfeit mark with the intent to defraud the mark holder or an innocent purchaser. Jacqueline rais es substantially the same claim. As we have rejected the contention that intent to defraud is an element of a section 350 violation, we must necessarily reject any co ntention the court was required to instruct the jury on this element.

c Vo further contends the court prejudicia lly erred by instruc ting the jury Vo was charged with the "sale or po ssession for sale of counterfeit goods in violation of [section 350, subdivision (a)(2)]," (italics added) inst ead of the sale or possession of counterfeit marks . We disagree. While the court may have misdescribed the charge agains t Vo, it accurately informed the jury the charge required the People to pr ove Vo intentionally sold a17 counterfeit mark or knowingly possessed a counterfeit mark for sale and Vo knew the mark was counterfeit. The court also defined the term "counterfeit mark " for the jury. Consequently, Vo has not es tablished there was a reasonable likelihood the jury misconstrued or misapplied the instru ction in the manner claimed. ( People v. Mathson , supra , 210 Cal.App.4th at p. 1312.) III Vagueness Claim The Sys contend section 350 is unco nstitutionally vague because it does not require an intent to defraud or a likelihood the use of the mark created confusion, mistake, or deception about th e origin of the product. We conclude otherwise. "A penal statute must define the offens e with sufficient precision that 'ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discri minatory enforcemen t.' [Citations.] 'The constitutional interest implicated in questions of statutor y vagueness is that no person be deprived of "life, liberty, or property without due proc ess of law," as assured by both the federal Constitution (U.S. Const., Ame nds. V, XIV) and the Califor nia Constitution (Cal. Const., art. I, § 7).' [Citation.] "To satisfy the constitutional command, a statute must meet two basic requirements: (1) the statute must be suffici ently definite to provide adequate notice of the conduct proscribed; and (2) the statute mu st provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminato ry enforcement. [Citations.] Only a reasonable degree of certainty is re quired, however. [Citation.] The analysis18 begins with 'the strong pres umption that legislative enact ments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so th at a person may know what is prohibited thereby and what may be done without viola ting its provisions, but it cannot be held void for uncertainty if any reasonable and prac tical construction can be given to its language." ' " ( Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107.) Section 350's applicat ion is limited to the willful manufacturing, knowing possession, or intentional selling of a counterfeit mark. (§ 350, subd. (a).) "Counterfeit mark" is limited to a mark that is identical with or confusingly similar to a registered mark and is used or is intended to be used on or in connection w ith the same type of goods or services as the registered mark. (§ 350, subd. (e)(3).) Section 350's limited reach and explicit scienter re quirements provide both adequate notice of the proscribed conduct and protection against arbitrary and discriminatory enforcement. ( People v. Superior Court ( Caswell ) (1988) 46 Cal.3d 3 81, 390-392 [prese nce of scienter requirement generally precludes vagueness problems]; People v. Maxwell (1994) 30 Cal.App.4th 783, 800 [sam e].) Thus, we conclude section 350 is sufficiently definite to satisfy the constitutional requirements. As with many of their other contentions , the Sys premise their vagueness claim on their assertion the statute should include inte nt to defraud and likelihood of consumer confusion requirements. However, they have not demonstrated the Legislature intended to include these requirements in the statute or that the Legislature was obliged to make California criminal law coextensive with federa l law or California civil law in this area.19 More to the point for this claim, they have not demons trated inclusion of these requirements is necessary to clarify existing language as opposed to adding new language favorable to their positions. It is the state le gislature's province to define the elements of and determine the appropriate penalties for state crimes. ( People v. Malfavon (2002) 102 Cal.App.4th 727, 737.) " 'The j udiciary ordinarily has no powe r to insert in a statute an element the Legislature has omitted [citation]' [c itation]; where, as here, the statute has an appropriate mens rea requirement , 'no reason appears . . . to warrant departure from this rule.' " ( People v. Hagedorn (2005) 127 Cal.App.4th 734 , 744.) As the California Supreme Court has repeatedly ob served, " ' " 'the power to de fine crimes and fix penalties is vested exclusively in the le gislative branch.' [Citations.] " ' [Citation.] The courts may

not expand the Legislature's definition of a crime [citation], nor may they narrow a clear and specific definition." ( People v. Farley (2009) 46 Cal.4th 1053, 1119.) IV Restitution Claim A As a condition of probation, the court ordered the Sys to pay victim restitution in amounts to be determined. Af ter subsequent restitution hear ings, the court ordered the Sys to pay trademark holders $19,126 for loss of sales as follows: Breitling Lane, $350; Jimmy Choo, $65; TAG Heuer, $182; Burb erry, $533; Chanel, $5,762; Dolce & Gabbana, $234; Ed Hardy, $658; Gucci, $204; Juicy Cout ure, $517; Louis Vuitton, $9,416; Prada, $625; Rolex, $500; and Tiffany, $80. The amounts were based on documents evidencing actual sale s by the Sys to their custom ers. The amounts were not20 based on the Sys' inventory. The court al so ordered the Sys to reimburse trademark holders over $23,000 for investigation costs.
B 1 The Sys challenge the restitution award on numerous grounds. Before addressing their challenges, we summarize the law applicable to our review. The California constitution gives crime victims a right to restitution and, consequently, requires a court to order a conv icted wrongdoer to pay restitution in every case in which a crime victim su ffers a loss. (Cal. Const., ar t. I, § 28, subd. (b)(13)(B).) To implement this requirement, section 1202. 4, subdivision (f), generally provides that "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the de fendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." A victim includes "[a] corporation, busin ess trust, estate, trust, partnership, association, joint venture, government , governmental subdivision, agency, or instrumentality, or any other legal or commercia l entity when that entity is a direct victim of a crime." (§ 1202.4, su bd. (k)(2).) A direct victim is a victim against whom a defendant has committ ed a crime. ( People v. Anderson (2010) 50 Cal.4th 19, 28.) The restitution amount "shall be of a do llar amount that is sufficient to fully reimburse the victim or victims for every de termined economic loss incurred as the result of the defendant's criminal conduct." (§1202.4, subd. (f)(3 ).) "The defendant has the21 right to a hearing before a judge to di spute the determination of the amount of restitution." (§ 1 202.4, subd. (f)(1).) "At a victim restitution hearing, a prim a facie case for restitution is made by the People based in part on a victim's testim ony on, or other claim or statement of, the amount of his or her economic loss. [Citations .] 'Once the victim has [i.e., the People have] made a prima facie showing of his or he r loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]' [Citation.] " 'The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broa dly and liberally construed." [Citation.] " 'Where there is a factual and rational basis for the amount of re stitution ordered by the trial court, no abuse of discretion will be found by th e reviewing court.' " [Citati ons.]' [Citation.] However, a restitution order 'resting upon a " 'demonstrable error of law' " constitutes an abuse of the court's discretion. [Citation.]' [Citation.] 'In reviewing the suffici ency of the evidence [to support a factual finding], the " 'power of the appellate court begins and ends with a determination as to whether there is a ny substantial evidence, contradicted or uncontradicted,' to support the trial court's findin gs." [Citations.] Fu rther, the standard of proof at a restitution hearing is by a prepond erance of the evidence , not proof beyond a reasonable doubt. [Citation.] "If the circumst ances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Cita tion.] We do not reweigh or reinterpret the22 evidence; rather, we determine whether ther e is sufficient eviden ce to support the inference drawn by the trier of fact. [Citation.]' [Citation.] " '[T]he court's di scretion in setting the amount of restitution is broad, and it may use any rational method of fi xing the amount of restitution as long as it is reasonably calculated to make the victim whole. [Citations .]' [Citations.] 'T here is no requirement the restitution order be limited to the exact amount of the lo ss in which the defendant is actually found culpable, nor is there any re quirement the order reflect the amount of damages that might be recoverable in a civil action.' " ( People v. Millard (2009) 175 Cal.App.4th 7, 26-27.) 2 First, the Sys contend the court abused its discretion by ordering them to pay victim restitution to the trademark holders be cause the trademark holders were not direct victims within the meaning of section 1202.4 , subdivision (k)(2). We need not decide whether the trademark holders were direct victims in this case because section 350, subdivision (i), expressly provides: "When a pe rson is convicted of an offense under this section, the court shall order the person to pay restitution to the trademark owner and any other victim of the offens e pursuant to Section 1202.4." (Italics added.) Thus, the court was obliged to order the Sys to pay victim restitution to the trademark holders regardless of whether the trademar k holders were direct victims. 3 The Sys next contend the court should not have awarded the trademark holders investigative costs because these costs were unrecoverable law enfo rcement costs. We23 disagree. Although a public agency genera lly may not recover law enforcement costs under section 1202.4 ( People v. Ozkan (2004) 124 Cal.App.4t h 1072, 1076-1077), a victim may recover out-of-pocket expenses for assisting with the investigation and prosecution of the victim's case as these "expenses clea rly constitute 'economic loss incurred as the result of the defe ndant's criminal conduct.' " ( People v. Ortiz (1997) 53 Cal.App.4th 791, 797-798; see also People v. Chappelone (2010) 183 Cal.App.4th 1159, 1182-1183 & fn. 9; People v. Maheshwari (2003) 107 Cal.App.4t h 1406, 1409, 1411.) 4 The Sys additionally contend the amount awarded for investigative costs was excessive because most of the costs were incurred after the pr eliminary hearing, when the bulk of the investigative company's work shou ld have been completed. They further contend the investigative company's work di d not warrant the hourly rate the agency charged the trademark holders. These are ma tters upon which the Sys had the burden of proof below. ( People v. Millard , supra , 175 Cal.App.4th at p. 26 [defendant has the burden of proving the amount of lo ss is other than the victim claims].) The record shows the investigation company submitted invoices and other documents de tailing the basis for their fees. Conversely, the record does not show the Sys presented any evidence the investigative company billed for work it di d not actually perform or charged abovemarket rates for its services. Accordingly, the Sys have not established the amount of restitution ordered for investigative co sts was an abuse of discretion.24 5 The Sys further contend the court erred in awarding restitution to some of the trademark holders, such as Breitling, becaus e the prosecutor did not present any trial evidence showing these companies had registered marks or that the Sys used the marks without authorization. Acco rding to the Sys, awarding restitution to these trademark holders violated their constitu tional rights to notice and a ju ry's determination of the facts. Generally, restitution under section 1202.4 is limited to losses arising from the criminal conduct that fo rmed the basis for the defendant's conviction. ( People v. Woods (2008) 161 Cal.App.4th 1045, 1049.) However, "[t]his limitation does not apply in the context of grants of probation. 'California courts have long interp reted the trial courts' discretion to encompass the ordering of restit ution as a condition of probation even when the loss was not necessarily cau sed by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper wher e the loss was caused by related conduct not resulting in a c onviction [citation], by conduct underlying dismissed and uncharged count s [citation], and by conduc t resulting in an acquittal [citation].' " ( Id. at p. 1050, citing People v. Carbajal (1995) 10 Cal.4th 1114, 1121; accord People v. Anderson (2010) 50 Cal.4t h 19, 27.) We review an award of restitution imposed as a condition of probation to determ ine whether it is arbitrary, capricious or otherwise exceeds the bounds of re ason under the circumstances. ( People v. Anderson , supra , at p. 32.)25 Here, the court stated in its orders granting probation that the Sys would be required to make restitution for the actual damage s they caused all of their victims in an amount to be determined at a restitution hearing. The Sy s had notice of their potential victims' identities from the merchandise law enfo rcement officers seized from their store. They also had notice from the People's restitution memo, wh ich identified the trademark holder victims and their claimed losses and was supported by the Sys' sales receipts. The record does not show the Sys presented any ev idence challenging any company's status as a victim, whether because the company did not hold a registered mark or because the company had authorized the Sys to use its mark. We, therefore, cannot conclude the court's restitution award was arbitrary, ca pricious, or exceeded the bounds of reason under the circumstances. ( People v. Anderson , supra , 50 Cal.4th at p. 32.) Moreover, the fact the court awarded re stitution without a ju ry trial poses no constitutional concerns. As we have previo usly held, the court' s determination of a restitution amount does not implicate a defendant's jury trial rights. ( People v. Millard , supra , 175 Cal.App.4th 7, 36; see also, People v. Chappelone , supra , 183 Cal.App.4th at pp. 1183-1184.) V Reduction of Offense Claim A Jacqueline moved under section 17, subdiv ision (b), to reduce her conviction to a misdemeanor, arguing the nature and circumstances of the offe nse, her remorse for it, and her character supported the reduction. The court denied the motion, indicating it would26 reconsider the motion at a later time after ensuring Jacqueline complie d with the terms of her probation and did not con tinue selling counterfeit marks. Jacqueline contends the court abused its discre tion by denying her motion. B A violation of section 350, subdivision (a)(2 ) is a "wobbler" offense in that a court has the discretion to sentence the crime as either a felony or a misdemeanor. ( People v. Superior Court (

Alvarez ) (1997) 14 Cal.4th 968, 974.) A court had broad discretion under section 17, subdivision (b) in deciding whether to reduce a wo bbler offense to a misdemeanor. ( People v. Superior Court ( Alvarez ), supra , at p. 977.) We will not disturb the court's decision on appeal unle ss the party attacking the decision clearly shows the decision was irrational or arbitrary. ( Ibid .) Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives. ( Id . at pp. 977-978.) Here, the court considered Jacqueline's motion and determined it was too soon to reduce her conviction. The court indicated it wanted an opportun ity to consider her performance on probation befo re granting her request to ensure she did not resume selling counterfeit marks. Nothing about th e court's stated reasons for denying her motion indicate its decision was irrational or arbitrary, and Jacqueline has not clearly shown to the contrary. Although the court (different judge) gr anted Vo's motion to reduce his conviction to a misdemeanor, this does no t show the court acted irra tionally or arbitrarily in Jacqueline's case. We will not reverse the court's decision " 'mer ely because reasonable people might disagree. "An appellate tribuna l is neither authorized nor warranted in27 substituting its judgment for the judgm ent of the trial judge." ' " ( People v. Superior Court ( Alvarez ), supra , 14 Cal.4th at p. 978.) Further, the record shows Ja cqueline played more of an active role in selling and possessing the counterfeit marks th an Vo. In fact, she testif ied at his trial he had no substantive involvemen t in the ownership or operation of her business. Under such circumstances, we cannot conclude the court ac ted irrationally or arbitrarily in waiting to grant her motion to reduce her conviction unt il after it ensured sh e complied with her probation and did not resume her unlawful business operations. VI Denial of Recusal Motion A Before the restitution heari ng, Vo moved to retroactiv ely disqualify the district attorney's office from the case , arguing the office had a disabling conflict of interest because the victims, through the investigative company, financed many expenses, including investigative expens es and witness fees, normally borne by the prosecution. The court denied the motion without prejudice because the attorney general had not been served with a copy of it and it wa s not supported by a declaration. B Vo contends the court erred by refusing to consider the merits of the motion because the submission of an affidavit would have been futile as the court already had competent evidence be fore it and the attorney general a ppeared at the hearing, indicating28 the attorney general had actual notice of the mo tion. Alternatively, Vo contends the court should have continued the hearin g to allow the attorney genera l to file an opposition. 1 A court may not grant a motion to dis qualify a district attorney unless "the evidence shows that a conflict of interest ex ists that would render it unlikely that the defendant would receive a fair trial." (§ 1424, subd. (a)(1).) "[S]ection 1424 sets out a two-part test for determining whether recusal is appropriate. Under the first part, a court must determine whether a conflict exists, that is, whether 'the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded mann er.' [Citations.] If such a conflict exists, the court must further determine whether the conflict is ' " 'so grave as to render it unlikely that defendant will receive fair trea tment during all portions of the criminal proceedings.' " ' [Citation.] Thus, the first half of the inqu iry asks only whether a 'reasonable possibility' of less than impartial treatment exists, while the second half of the inquiry asks whether any such possibility is so great that it is more likely than no t the defendant will be treated unfairly during some portion of the criminal proceedings." ( Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 713-714.) "Section 14 24 'does not allow disqualification merely because the district attorney's further participation in the prosecution woul d be unseemly, would appear im proper, or would tend to reduce public confidence in the impartiality and integrity of the criminal justice system.' [Citati ons.] Only an actual likelihood of unfair

treatment , not a subjective perception of impropri ety, can warrant a court's taking the29 significant step of recusing an individual prosecutor or prosecutor's office." ( Haraguchi , at p. 719.) We review trial court rulings on recu sal motions for abuse of discretion. ( Hollywood v. Superior Court (2008) 43 Cal.4th 721, 7 28.) "Accordingly, we ask whether the trial court's findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its app lication of the law to the facts was neither arbitrary nor capricious. [Citation.]" ( People v. Superior Court ( Humberto S. ) (2008) 43 Cal.4th 737, 746 ( Humberto S. ).) 2 Section 1424 requires the defendant serve a motion to disqualify on the district attorney and the attorney gene ral at least 10 court days be fore the motion is heard. (§ 1424, subd. (a)(1).) The mo tion must include a statement of the facts setting forth the grounds for the disqualification and the lega l authorities relied upon. In addition, the motion must be supported by the affidavits of competent witnesses. ( Ibid. ) The district attorney and the attorney general may file a ffidavits opposing the motion, may appear at the hearing on the motion, and may file a wr itten opinion on the disqualification issue. ( Ibid. ) The court must review the affidavits a nd determine whether or not an evidentiary hearing is necessary. ( Ibid. ) In this case, there is no question Vo's mo tion was procedurally infirm. Vo did not serve his motion on the attorney general and he did not support it with affidavits or other competent evidence as require d by section 1424, subdivi sion (a)(1). The attorney general's appearance at the motion hearing did not obviate these infirm ities. The district30 attorney apprised the attorn ey general of the motion hear ing and the attorney general appeared at it solely to assert a procedural objection. The attorney general did not file an opposition to the motion and there is no basis in the record for us to reasonably infer the attorney general had an adequa te opportunity to prepare one. Unlike the district attorney, the attorney general had no fami liarity with the case or with the evidence Vo referenced in, but did not supply with, his motion. Moreover, we are not aware of any authority obliging a party to expend resources res ponding to an improperly noticed motion. Accordingly, we are unable to conclude it was futile for the court to require compliance with section 1424's procedural requirements or that it abused its discretion by doing so. For similar reasons, we cannot fault the c ourt for failing to continue the matter to allow the attorney general to respond. The a ttorney general did not specifically request a continuance. Rather, the atto rney general expressly declin ed to waive its procedural objection and requested an opportunity to resp ond only if the court decided to hear the motion on the merits. As the attorney general's objection wa s well taken and curing the procedural defects required both service on the attorney general and the submission of supporting evidence, we conclude the court di d not abuse its discre tion by opting to deny the motion without prejudice instea d of continuing the matter. 3 Even if the court had erred by failing to co nsider the merits of or to continue the hearing on the disqualification motion, th e error was harmless. As explained in Hambarian v. Superior Court (2002) 27 Cal.4th 826 ( Hambarian ), the California Supreme Court determined in People v. Eubanks (1996) 14 Cal.4th 580 ( Eubanks ) that a31 trial court may properly order the recusal of a district attorney's office "which, when faced with a ' "substantial" ' debt for consultants in compar ison to its res ources, had asked the victim to pay the debt as well as 'other significant co sts of the investigation.' [Citation.] Focusing on 'the possible sense of obligation the district attorney would feel for [the victim's] payment of a debt owed by the district attorney's office,' [the Supreme Court] held that '[t] he trial court did not err in conc luding these circumstances evidenced a "reasonable possibility" the prosecutor might no t exercise his discretionary functions in an evenhanded manner' and would not have a bused its discretion 'i n finding the conflict so grave as to render fair treatment of th e defendants in all stages of the criminal proceedings unlikely.' " ( Hambarian v. Superior Court (2002) 27 Cal.4th 826, 829.) However, the Supreme Court subsequently clarified a district attorney is not subject to recusal whenever a defendant shows a victim financially assisted the district attorney with the in vestigation of the victim's case. ( Hambarian , supra , 27 Cal.4th at pp. 834, 836.) Instead, the defendant must "s how that the financial assistance is of 'a nature and magnitude likely to put the pros ecutor's discretionary decisionmaking within the influence or control of an interested party.' " ( Id. at p. 835.) The likelihood existed in Eubanks because the district attorney's offi ce was experiencing serious budgetary constraints and had asked the vi ctim to discharge a sizable debt the office had previously incurred. Such circumstances raised the concern the office would have had difficulty informing the victim if it decided not to prosecute the victim's case. ( Hambarian , at pp. 835-836.)32 Vo did not provide any eviden ce the trademark holders' fi nancial assistance in this case was of a nature and magnitude to create any comparable sense of obligation on the district attorney's office's part. Specificall y, he did not provide any evidence the office asked the trademark holders to discharge a pr eexisting debt or for any other specific financial assistance. In addition, he did not provide any evidence the trademark holders used or attempted to use their financial assi stance to influence the office's discretionary decisionmaking. He also did not provide an y evidence the trademark holders' financial assistance, relative to the office's own financial resources , caused the office to make or feel obliged to make discretionary deci sions it otherwise would not have made. Vo's assertion the financial assistance pr ompted the office to pursue an otherwise weak case is wholly unpersuasiv e. There is no doubt from the evidence Jacqueline was actively engaged in selling goods with counterfe it marks. The only que stion as to Vo was the degree of his involvement in the ente rprise and the additional documentary and testimonial evidence presented at his second tr ial amply supported the jury's finding he aided and abetted Jacqueline. Although the Sys did not, and may still not, view their conduct as criminal, it fell s quarely within the ambit of s ection 350 and a prosecutor may not be disqualified simply fo r zealously pursuing convictions . " 'Zealous advocacy in pursuit of convictions forms an essential part of the prosecutor's proper duties and does not show the prosecutor's participation was im proper.' [Citation] ' "In an adversary system, [prosecutors] ar e necessarily permitted to be zeal ous in their enforcement of the law." [Citation.] So long as their zeal re mains within legal limits . . . the lawful execution of their duty does not establish as a matter of law that th ey have surrendered33 their independence and impartiality.' " ( People v. Superior Court ( Humberto S. ), supra , 43 Cal.4th at p. 747.) Accordingly, Vo ha s not established he would have received a more favorable result absent the claimed error. ( People v. Watson (1956) 46 Cal.2d 818, 836; People v. Vasquez (2006) 39 Cal.4th 47, 66-71 [holding Watson standard applies to an erroneous denial of a section 1424 motion].) DISPOSITION The judgment is affirmed.

M C CONNELL, P. J. WE CONCUR:

NARES, J.

M C INTYRE, J.