California Court of Appeals, Fourth District, First Division
CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego County Super. Ct. No. SCD228655, Edward P. Allard III and Leo Valentine, Jr., Judges.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Vo Nghia Sy.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant Jacqueline Duenas Sy.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson, Melissa Mandel and Charles C. Ragland, Deputy Attorneys General for Plaintiff and Respondent.
McCONNELL, P. J.
Separate juries convicted Jacqueline Duenas Sy and Vo Nghia Sy of selling or possessing counterfeit marks and found 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,  § 350, subd. (a)(2)). 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 would reconsider the motion at a later time after ensuring Jacqueline complied with the terms of her probation and did not continue selling counterfeit goods. The court later ordered Jacqueline and Vo to pay almost $43, 000 in victim restitution.
On appeal, Jacqueline and Vo both contend there was insufficient evidence to support their convictions, the court committed instructional error, section 350 is unconstitutionally vague, and the court's victim restitution order was infirm in multiple respects. Vo separately contends the court erred by refusing to consider the merits of his motion to disqualify the prosecution, or alternatively, by refusing to continue the motion so it could be heard on the merits. Jacqueline separately contends the court erred by denying her motion to reduce her conviction to a misdemeanor. We conclude there is no merit to any of these contentions and affirm the judgment.
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. (Tiffany), and True Religion. These brands are registered trademarks. The Sys' merchandise was not authentic and they were not authorized retailers of the brands.
An investigator for a private investigative company specializing in trademark, copyright, and patent infringement investigations went to a trade show in March 2010. Vo manned a booth there and the investigator saw two customers looking at purses underneath a table in the booth. The investigator inquired about purchasing some of the items. Vo gave him Jacqueline's business card and cell phone number. Vo told the investigator to call the number to arrange to purchase merchandise 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 jeans for $25, a pair of Rock & Republic jeans for $25, a Louis Vuitton wallet for $35, a Coach wallet for $10, and two Ed Hardy belts for $5 each.
Vo walked into the store as the investigator was leaving 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 where vendors and merchants are known to sell knockoff merchandise. He also said he did not have much merchandise at the time because "it was hard to get stuff from China, " and customs had confiscated 35 cases of True Religion jeans. Two weeks later, the investigator returned to the store and bought another pair of counterfeit True Religion jeans for $25.
Law enforcement officers subsequently searched the store. With assistance from the investigative company's employees, the officers seized over 13, 000 counterfeit items.
Additional Prosecution Evidence–Vo's Trial
At the Las Vegas trade show, Vo kept certain purses under a table covered by a tablecloth. He pulled up the tablecloth to show 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 appeared on both the face and back of the watch, 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 would 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 was genuine because its back had a sticker rather than an engraved insignia. Instead, she thought 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 all of the items with the brands they represented because of their look and feel and because they had very similar logos, but she 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 and the investigator did not believe it was authentic.
Another customer bought a Chanel branded purse, a Coach branded purse, and a Tiffany branded necklace from Jacqueline. The customer paid $45 for the Coach purse. She knew it was not real because of the price 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 items at school fundraisers. 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 EvidenceJacqueline'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 for the logos, " which "looked like they were the real thing." Jacqueline also told him the merchandise was not real.
The family friend's wife testified she had purchased purses from Jacqueline on at least four occasions. Although the purses had brand names on them, she was never confused about their 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 authenticity because of their prices and "they looked a little cheaper." Jacqueline never told the customer the merchandise was real. She also never told the customer the merchandise was counterfeit. Regardless, the customer never believed the merchandise was real.
A fellow vendor at one of the farmer's markets where Jacqueline sold her merchandise testified she never saw Jacqueline 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 wallet it was. When shown one of Jacqueline's counterfeit Tiffany items, the vendor stated she would not know off-hand whether it was actually a Tiffany item. However, she also stated, "I'm pretty sure, if it says 'Tiffany' engraved in it, I believe it's a Tiffany item." The vendor later explained, "I don't recognize brand name items just 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 testified 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 Jacqueline sold them for far less than what a genuine purse would cost.
Defense EvidenceVo's Trial
Several people who dealt with the Sys testified Jacqueline never represented her items were genuine and they never believed her items were genuine.
Insufficient Evidence Claims
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 whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which 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 doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence 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 mark that is identical with, or confusingly similar to, a registered mark and is used, or intended 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 not have to be displayed on the outside of an article. (Ibid.) A " 'spurious mark' includes genuine marks used on or in connection with spurious articles and includes identical articles containing identical marks, where the goods or marks were reproduced without authorization of, or in excess of any authorization granted by, the registrant." (Ibid.) " 'Knowingly possess' means that the person possessing an article knew or had reason to believe that it was spurious, or that it was used on or in connection with spurious articles, or that it was reproduced without authorization of, or in excess of any authorization 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 companies as Coach, Louis Vuitton, and Chanel. The evidence also shows law enforcement officers seized over 13, 000 of these items from the Sys' San Diego store. Accordingly, there is ample evidence the Sys both intentionally sold and knowingly possessed counterfeit marks.
The fact the Sys' customers may not have been confused about the authenticity of the Sys' merchandise does not alter our conclusion. 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 comparison of certified copies of registered trademarks with the marks on the Sys' merchandise, shows the Sys' were selling and possessing for ...