People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (116 Cal. App. 4th 1253, 2004)

Opinion

McDONALD, J.

Defendant RJ. Reynolds Tobacco Company (Reynolds) appeals a judgment in favor of plaintiff the People of the State of California on the People’s complaint for an enforcement order of a consent decree (Consent Decree) entered on a master settlement agreement (MSA). Reynolds contends the court erred by (1) concluding Reynolds violated an MSA provision incorporated into the Consent Decree prohibiting Reynolds from targeting youth in its print advertising of tobacco products, (2) issuing an impermissibly vague injunction, and (3) imposing $20 million in sanctions on Reynolds. We reverse the imposition of sanctions and otherwise affirm the judgment.

I

INTRODUCTION

We state the facts and reasonable inferences drawn from the evidence most favorably to the People as the party prevailing at trial. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544 [138 Cal.Rptr. 705, 564 P.2d 857], disapproved on another point in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 581 [34 Cal.Rptr.2d 607, 882 P.2d 298]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162, 479 P.2d 362]; Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912 [117 Cal.Rptr.2d 631]; Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1243, fn. 2 [62 Cal.Rptr.2d 298].)

“Tobacco manufacturer Reynolds promoted its tobacco products in California.” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4tti 516, 520 [132 Cal.Rptr.2d 151], fn. omitted (Lockyer).) In doing so, Reynolds and its media planner developed plans for advertising its products in print media, including magazines. Reynolds’s media plans identified the magazines in which to place advertisements, formed its magazine approval policy and created media advertising schedules by reference to survey data measuring magazine readership collected and analyzed by national research services, MediaMark Research Inc. (MRI) and, to a lesser extent, Simmons Market Research Bureau (Simmons). MRI’s data do not show how many people have seen an advertisement in a magazine but instead simply quantify the people who read or looked at an issue of the magazine. Young adult smokers age 21 to 34 were generally the stated target of Reynolds’s magazine tobacco advertising.

“In November 1998 Reynolds and the People signed the MSA that settled the People’s litigation against various tobacco product manufacturers, including Reynolds.” (Lockyer, supra, 107 Cal.App.4th at p. 520, fn. omitted.) “Further, the parties stipulated to entry of a consent decree and final judgment. As part of the consent decree, the Superior Court of San Diego County approved the MSA (People v. Philip Morris, Inc. (1998, No. JCCP4041) [and] retained exclusive jurisdiction for purposes of implementing and enforcing the MSA.” (Lockyer, at p. 520.)

“The MSA placed . . . detailed express restrictions on Reynolds’s advertising and marketing practices.” (Lockyer, supra, 107 Cal.App.3d at p. 520.) MSA, subsection 131(a), entitled “Prohibition on Youth Targeting,” provided: “No Participating Manufacturer may take any action, directly or indirectly, to target Youth within any Settling State [including California] in the advertising, promotion or marketing of Tobacco Products . . . .” Consent Decree, section V(A) permanently enjoined Reynolds from “[t]aking any action, directly or indirectly, to target Youth within the State of California in the advertising, promotion or marketing of Tobacco Products . . . .”

The People’s litigation settled under the MSA included allegations that Reynolds had targeted its advertising to youth. However, after entering into the MSA, Reynolds initially made no changes to its media advertising schedules, did not include in its media plans the goal of reducing exposure of its advertising to youth and did not determine the extent its advertising was exposed to youth. Although Reynolds eventually made changes to its media advertising schedules, those changes had minimal impact in reducing exposure of its advertising to youth. After the MSA was signed, Reynolds was more likely to advertise in magazines known to have a higher level of exposure to youth than before the MSA was signed. After the MSA was signed, Reynolds’s print media advertising policy did not significantly avoid exposure of its advertising to youth.

Although the MSA was signed in 1998, during 1999 through 2001 Reynolds’s tobacco print advertising was exposed to youth at levels virtually identical to the levels of its targeted group of young adult smokers. Those comparable exposures suggested Reynolds’s print advertising was aimed at two audiences. If Reynolds had been aiming exclusively at young adult smokers, the exposure of its advertising to that group would have been higher than to youth. Because the MRI and Simmons data were available to Reynolds, Reynolds could have reasonably anticipated the comparable exposures of its print advertising to young adult smokers and youth. Alternative advertising strategies were available to Reynolds. Reynolds could have modified its existing advertising policies and practices and created alternative media advertising schedules to reduce the exposure of magazines containing Reynolds’s advertising to youth while retaining a reasonably good exposure to young adult smokers. The advertiser’s selection of the magazines and the number of advertising insertions into those magazines determine the number of people exposed to the advertising within and outside the stated target group. An advertiser can target specific smoker demographic groups by selecting the magazines into which its advertisements are placed. The key to reducing advertising exposure to youth without a commensurate reduction in exposure to adult smokers is to select magazines with high adult-smoker-to-youth audience ratios and magazines with audiences containing a low composition of youth. Further, advertising in numerous magazines results in a cumulative effect of advertising exposure to youth. Reynolds could have reduced the number of magazines in which it advertised to avoid those with a high youth audience while continuing its advertising exposure to young adult smokers. Although Reynolds was aware it could adopt media advertising schedules less likely to expose its advertising to a high number of youth while maintaining a strong exposure of its advertising to young adult smokers, it chose not to do so.

A dispute arose between the parties about whether Reynolds was complying with subsection III(a) of the MSA and section V(A) of the Consent Decree. The People demanded that Reynolds modify its advertising practices. Communications between the parties did not resolve the matter, and in March 2001 the People filed this lawsuit alleging Reynolds violated the MSA and Consent Decree by targeting youth through placement of its tobacco advertisements in national consumer magazines in the years 1999, 2000 and 2001. The People’s lawsuit sought enforcement of the MSA and Consent Decree and sanctions for Reynolds’s alleged violation of the Consent Decree provisions prohibiting the targeting of tobacco advertising to youth.

Before and during trial, Reynolds moved to exclude evidence of MRI’s survey data, including its teenage audience data. Reynolds also moved to preclude the People’s experts from offering opinion testimony based on those data. At trial, the parties litigated the accuracy and admissibility of MRI’s data. The trial court overruled Reynolds’s foundational objections to evidence of those data, concluding the People established an adequate foundation for admissibility of that evidence.

The trial court found that after “the MSA was signed, [Reynolds] . . . exposed Youth to its tobacco advertising at levels very similar to those of targeted groups of adult smokers.” The court also found that between 1997 and 2001, “the delivery of print media advertising by [Reynolds] to its stated target audience of young adult smokers and to Youth age 12 to 17 is essentially the same.” Based on those findings, the court concluded Reynolds violated the MSA and Consent Decree’s prohibition against targeting youth. The court entered judgment permanently enjoining Reynolds from continuing to violate MSA, subsection III(a) and Consent Decree, section V(A) “by exposing Youth to its tobacco advertising at levels similar to the levels of exposure of adult smokers.” The judgment also ordered Reynolds to (1) adopt reasonable measures designed to reduce exposure of its advertising to youth to a level significantly lower than the exposure level of its advertising to its stated target of young adult smokers, and (2) use reliable means such as the MRI and Simmons data to measure and demonstrate whether Reynolds was achieving success toward that goal. Further, based on the Consent Decree’s provisions authorizing sanctions, the court awarded the People $20 million sanctions against Reynolds.

Reynolds appeals the judgment, contending the trial court reversibly erred by concluding Reynolds violated MSA, subsection III(a) and Consent Decree, section V(A) by targeting tobacco advertising to youth within California. Reynolds also contends the court reversibly erred by imposing a $20 million sanction without the requisite specific findings or any basis in the record.

II

DISCUSSION

A

MSA’s Provision Prohibiting the Targeting of Advertising to

Youth

Reynolds contends that the trial court improperly concluded the People met their burden to prove Reynolds violated MSA, subsection III(a) and Consent Decree, section V(A) by targeting its tobacco advertising to youth within California. Reynolds argues the court prejudicially erred by; (1) in effect rewriting subsection III(a) to eliminate the requirement that Reynolds have the purpose or intent to expose its advertising to youth; (2) violating Reynolds’s due process rights by restricting Reynolds’s First Amendment right to advertise to adult smokers; (3) issuing an impermissibly vague injunction; (4) admitting hearsay evidence of survey data of magazine readership for its truth and permitting the People’s experts to offer opinions based on those data; (5) entering judgment against Reynolds although the evidence did not show any violation of MSA, subsection III(a) occurred within California; and (6) making findings and reaching conclusions about Reynolds’s competitors Philip Morris and Brown & Williamson (B&W) based on inadmissible hearsay evidence.

1

Interpretation of MSA’s Provision Prohibiting Reynolds from Targeting Youth

The parties dispute the meaning of MSA, subsection III(a) that provides Reynolds may not “take any action, directly or indirectly, to target Youth” in its advertising, promotion or marketing of tobacco products. The trial court interpreted that provision of the MSA to preclude Reynolds from “taking any action that exposes Youth to tobacco advertisement to virtually the same degree as if Youth had been directly targeted.” In arriving at that interpretation, the court stated it did not matter whether Reynolds “had any purpose or primary purpose to increase the incidence of Youth smoking in designing and implementing its advertising campaign.” The court characterized subsection III(a) as prohibiting targeting youth “regardless of purpose or intent.” The court also stated subsection III(a)’s term “indirectly” referred to “any tobacco advertising actions that result in Youth exposure to virtually the same degree as if Youth had been directly targeted.” Applying its interpretation of subsection III(a) to the evidence adduced at trial, the court concluded Reynolds violated the MSA “by indirectly targeting Youth in its tobacco advertising.”

Reynolds contends the trial court erroneously transformed Reynolds’s obligation under MSA, subsection III(a) by rewriting that contractual provision (1) to delete as a material element of a violation of the provision any requirement that Reynolds have the purpose or intent to expose its advertising to youths, and (2) to impose on Reynolds not simply a prohibition on targeting youth but rather an enormous and ill-defined affirmative obligation to avoid or reduce the levels of exposure of its tobacco advertising to youth. Because the court’s interpretation of subsection III(a) does not turn on the credibility of extrinsic evidence, we exercise de novo review of that interpretation. (Lockyer, supra, 107 Cal.App.4th at p. 520; Morgan v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843 [102 Cal.Rptr.2d 468]; Campbell v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1336 [93 Cal.Rptr.2d 635]; Centex Golden Construction Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992, 996 [93 Cal.Rptr.2d 259]; Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 504 [61 Cal.Rptr.2d 668]; Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1549 [54 Cal.Rptr.2d 488]; Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 22 [31 Cal.Rptr.2d 378].)

We depart from the trial court’s interpretation of MSA, subsection III(a), and conclude that intent is a material element that must be proven to establish a violation of that contractual provision. Our interpretation of subsection III(a) to include an element of intent is consistent with the compromise struck by the parties in the MSA and avoids any alleged unconstitutionality in the trial court’s interpretation. However, under our interpretation of subsection III(a), Reynolds has not demonstrated that any error in the trial court’s interpretation was prejudicial in this case. (Code Civ. Proc., § 475; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

The trial court’s analysis was incorrect to the extent it interpreted MSA subsection III(a)’s prohibition against targeting youth as not including the element of intent. Words in a contract are given their ordinary meanings absent evidence the parties intended to use those words in a different sense. (Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9 [115 Cal.Rptr. 736].) To determine a word’s “common meaning, a court typically looks to dictionaries.” (Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4th 438, 444 [128 Cal.Rptr.2d 454]; Tellis v. Contractors’ State License Bd. (2000) 79 Cal.App.4th 153, 163 [93 Cal.Rptr.2d 734]; Blasiar, Inc. v. Fireman’s Fund Insurance Co. (1999) 76 Cal.App.4th 748, 754 [90 Cal.Rptr.2d 374].) “ ‘The “clear and explicit” meaning of [a contract’s words construed] in their “ordinary and popular sense” . . . [generally] controls “judicial interpretation” ’ ” unless the parties used the words in a technical sense or special meaning was given to the words by usage. (Blasiar, at p. 754, citing AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 822 [274 Cal.Rptr. 820, 799 P.2d 1253].)

The common and ordinary meaning of the word “target” as defined in various dictionaries incorporates the concept of a direct purposeful intent to reach a particular goal. (Random House Dict. (2d ed. 1993) p. 1944; Webster’s 3d New Internat. Dict. (1993) p. 2341.) Indeed, some dictionary definitions expressly include the phrase “to direct toward a target.” (See, e.g., Webster’s 3d New Internat. Dict., supra, p. 2341; Random House Dict., supra, p. 1944.) Considering the common meaning of the word “target,” the trial court erred to the extent it interpreted MSA, subsection III(a) as prohibiting “indirect” targeting. The trial court also erred to the extent it concluded the People were not required to prove Reynolds had the intent to target youth. As Reynolds observes, one “cannot ‘target’ something without intending to do so.” The People’s opening brief acknowledges that a scienter element is inherent in the word “target” and, in opposing Reynolds’s motion for judgment under section 631.8, the People told the trial court they were not proceeding on the theory that targeting was devoid of any element of intent. The People acknowledged intent was not irrelevant to the question of targeting, but argued intent was “not limited to primary purpose or exclusive purpose or anything of that character.”

The dispositive issue with respect to interpretation of MSA, subsection III(a) is not whether targeting can be indirect, because the common meaning of the word “target” excludes indirect results. (Tellis v. Contractors’ State License Bd., supra, 79 Cal.App.4th at p. 163; Blasiar, Inc. v. Fireman’s Fund Ins. Co., supra, 16 Cal.App.4th at p. 754.) Instead, considering the element of scienter inherent in the word “target,” the dispositive issue is whether the People proved by substantial evidence that Reynolds violated subsection III(a) by intentionally targeting youth in its advertising. (Cf. Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 172 [83 Cal.Rptr.2d 548, 973 P.2d 527] (Cel-Tech).)

In Cel-Tech, supra, 20 Cal.4th 163, the Supreme Court observed: “We have said that ‘ “intent,” in the law of torts, denotes not only those results the actor desires, but also those consequences which he knows are substantially certain to result from his conduct.’ ” (Id. at p. 172; cf. Estate of Kramme (1978) 20 Cal.3d 567, 572-573 [143 Cal.Rptr. 542, 573 P.2d 1369] (Kramme) [“[f]or a result to be caused ‘intentionally,’ the actor must either desire the result or know, to a substantial certainty, that the result will occur”]; Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 922 & fn. 10 [114 Cal.Rptr. 622, 523 P.2d 662] (Schroeder).) Although Cel-Tech discussed the concept of intent in the context of tort law, we conclude that the concept is equally applicable to the required intent implicit in MSA, subsection III(a)’s prohibition against targeting youth. If Reynolds intended its print advertising to target young adults but knew to a substantial certainty it would be exposed to youth to the same extent as young adults, then as a matter of law, Reynolds is deemed to have intended to expose, and thus targeted, youth as well as young adults.

The trial court concluded that although Reynolds had access to data showing that the level of exposure of its advertising to youth was about the same as exposure to the targeted young adult smokers, Reynolds “studiously avoided” measuring its advertising exposure to youth or comparing exposure to youth with exposure to young adults, probably because Reynolds “knew the likely result of such analysis.” The court also found that Reynolds “willingly engaged in an aggressive print advertising campaign to maximize exposure to targeted groups such as Young adult smokers, simply choosing to ignore the foreseeable consequence of significant Youth exposure.” The court further stated, “it is reasonable to conclude that [Reynolds], even without examining all the data it had at its disposal, realized or should have realized that it was reaching Youth at levels at least as great as adults in its print advertising . . . .” Further, as Reynolds acknowledged in seeking judgment under section 631.8, “intent can always be proved through circumstantial evidence” if such evidence is “reliable.” MRI’s magazine exposure results and derivative data constituted circumstantial evidence of Reynolds’s intent to target youth. The trial court acted within its discretion in overruling Reynolds’s objections that the circumstantial evidence was not reliable. We conclude the record contained substantial evidence that Reynolds violated MSA, subsection III(a) by targeting youth because Reynolds knew to a substantial certainty that its advertising was exposed to youth to the same extent it was exposed to young adults. (Cel-Tech, supra, 20 Cal.4th at p. 172; Kramme, supra, 20 Cal.3d at pp. 572-573; Schroeder, supra, 11 Cal.3d at p. 922 & fn. 10.)

2

Constitutionality of MSA Interpretation and Injunctive Portions of Judgment

The MSA imposed a variety of express prohibitions and restrictions on Reynolds’s marketing and advertising practices while otherwise preserving Reynolds’s commercial speech rights to advertise in the print media to adult smokers. (Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525, 564, 571 [150 L.Ed.2d 532, 121 S.Ct. 2404] (Lorillard); cf. Lockyer, supra, 107 Cal.App.4th at pp. 531-532.) Reynolds asserts it has constitutional free speech and due process rights to target its advertising to young adult smokers even if the advertising resulted in “incidental” exposure to youth, and the trial court violated its rights by issuing an injunction that requires Reynolds to reduce its advertisements to its stated target of young adult smokers. Reynolds asserts that by requiring Reynolds to avoid exposing its tobacco advertising to youth at levels similar to its advertising’s exposure to its stated target of young adults, the court’s interpretation of MSA, subsection 131(a), and the injunctive portions of the court’s judgment, imposed obligations on Reynolds beyond those to which it expressly agreed in the MSA. (Vons Companies, Inc. v. United States Fire Ins. Co. (2000) 78 Cal.App.4th 52, 58-59 [92 Cal.Rptr.2d 597] (Vons).) Reynolds contends the issue is whether MSA, subsection III(a) imposed an affirmative obligation on Reynolds to limit incidental advertising exposure to youth that is targeted solely at adults. Reynolds characterizes as undisputed its constitutional right to communicate information through advertising to adults despite incidental exposure of the advertising to youth. However, this case does not involve incidental exposure of Reynolds’s advertising to youth. Instead, the case involves Reynolds’s intentional exposure of its advertising to youth because Reynolds knew to a substantial certainty its advertising was exposed to youth to virtually the same extent it was exposed to young adults.

Although Reynolds acknowledges that in the MSA it waived any claims that the MSA was unconstitutional, it contends it did so only to the extent that the MSA contained restrictions, limitations or obligations expressly agreed to in the MSA or the Consent Decree. Reynolds characterizes the trial court’s construction of MSA, subsection III(a) and the language of the permanent injunction as not simply prohibiting targeting youth but instead imposing an enormous and ill-defined affirmative obligation on Reynolds to avoid or reduce the levels of exposure of its advertising to youth, an obligation to which it did not agree. Reynolds asserts the record contains no basis for a finding that it clearly and compellingly intended to relinquish its constitutional rights, and concludes the MSA should be construed to preserve its constitutional rights and against a waiver of those rights. (City of Glendale v. George (1989) 208 Cal.App.3d 1394, 1397-1398, 1405 [256 Cal.Rptr. 742].) However, our independent interpretation of MSA, subsection III(a)’s prohibition against targeting youth differs from the interpretation of the trial court. We agree with Reynolds that proof of a violation of subsection III(a) or the Consent Degree requires a showing Reynolds intentionally targeted youth in its print advertising. Our interpretation of subsection III(a) is consistent with the restrictions, limitations and obligations Reynolds expressly assumed under the MSA and Consent Decree. Moreover, the language in the trial court’s interpretation of MSA, subsection III(a) and in the permanent injunction, precluding Reynolds from exposing its tobacco advertising to youth at levels similar to its exposure to adult smokers, did not expand the prohibition to which Reynolds agreed in that subsection. Instead, the trial court simply set forth a means to measure the existence of prohibited youth targeting on this factual record and on a subsequent alleged violation of the prohibition. The record contains substantial evidence that an advertising vehicle’s exposure is the standard for evaluating the ability to reach a target audience. The evidence also suggests the way to avoid targeting a particular group is to minimize exposure of the advertising to that group. As observed by the People, subsection III(a)’s prohibition on youth targeting “is a limitation on Youth exposure.” The record contains evidence that Reynolds could implement alternative advertising schedules using different magazines to avoid targeting youth while maintaining effective targeting of young adult smokers. Reynolds’s constitutional challenge to the injunction’s language is barred by Reynolds’s voluntary waiver set forth in MSA section XV. (D.H. Overmyer Co. v. Frick Co. (1972) 405 U.S. 174, 184-188 [31 L.Ed.2d 124, 92 S.Ct. 775]; Lockyer, supra, 107 Cal.App.4th at p. 533 [132 Cal.Rptr.2d 151] cf. Newton v. Rumery (1987) 480 U.S. 386, 397-398 [94 L.Ed.2d 405, 107 S.Ct. 1187].)

In any event, in exercising de novo review of the language of the permanent injunction entered by the trial court, we are not persuaded by Reynolds’s contention that on its face the injunction is impermissibly vague, incomplete, indeterminate, imprecise or overbroad. (San Diego Unified Port Dist. v. U.S. Citizens Patrol (1998) 63 Cal.App.4th 964, 969 [74 Cal.Rptr.2d 364]; cf. Schmidt v. Lessard (1974) 414 U.S. 473, 476 [38 L.Ed.2d 661, 94 S.Ct. 713] [“basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed”]; Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach (1993) 14 Cal.App.4th 312, 329 [17 Cal.Rptr.2d 861]; Ketchens v. Reiner (1987) 194 Cal.App.3d 470, 476-477 [239 Cal.Rptr. 549]; City of Indio v. Arroyo (1983) 143 Cal.App.3d 151, 157 [191 Cal.Rptr. 565]; Foti v. City of Menlo Park (9th Cir. 1998) 146 F.3d 629, 638.) Reynolds faults the trial court for not providing definition or guidance about the meaning of various operative provisions in the injunction, and contends it must guess at the meaning of the injunction’s provisions prohibiting Reynolds from exposing its advertising to youth at levels similar to the exposure to adult smokers and requiring Reynolds to employ reasonable measures in its media planning to demonstrate that the level of exposure of its advertising to youth is significantly less than the level of exposure of its advertising to targeted groups of adult smokers. (Pitchess v. Superior Court (1969) 2 Cal.App.3d 644, 651 [83 Cal.Rptr. 35].) However, the language of the injunction gives Reynolds adequate notice of what it “may and may not do.” (Brunton v. Superior Court (1942) 20 Cal.2d 202, 205 [124 P.2d 831]; Schmidt, at p. 476.)

The evidence from which we conclude Reynolds was substantially certain its tobacco advertising was exposed to youth as a targeted audience includes the MRI data showing exposure or reach to the admitted target audience of young adults was essentially the same as to youth. In 1999 exposure to youth was 97.1 percent and exposure to adults was 97.9 percent; in 2000 exposure to youth was 95.2 percent and to adults 96.3 percent. Evidence at trial suggested the methods by which the percentage exposure to youth could be reduced without a comparable reduction in exposure to young adults. Implementation of these methods would be the reasonable measures required by the injunction and the resulting reduction in advertising exposure to youth compared to exposure to young adults would be the significant reduction in exposure to youth required by the injunction.

The permanent injunction contained mandatory provisions ordering Reynolds to “adopt, adhere to, and incorporate as part of its media strategy reasonable measures designed to reduce Youth exposure to its tobacco advertising to a level significantly lower than the level of exposure of targeted groups of adult smokers” and “employ reliable means such as MRI and Simmons data to measure its success in achieving this goal to demonstrate that the exposure of Youth to Reynolds’s tobacco advertising is significantly less than the exposure of targeted groups of adult smokers.” The mandatory provisions of the injunction do not shift to Reynolds the burden of proof on the issue of prohibited youth targeting. Instead, those mandatory provisions provide Reynolds with means to demonstrate compliance with MSA, subsection III(a)’s prohibition against targeting youth. The burden to prove a violation of that subsection remains with the People, who must show that Reynolds knew with substantial certainty that its print advertising exposure to youth would be the same as its exposure to young adults.

Because of our interpretation of MSA, subsection 111(a) and the permanent injunction, Reynolds has not established reversible prejudice resulting from any constitutional error by the trial court involving the language of those contractual and remedial provisions. Because the injunction’s language is not unconstitutionally vague, we conclude the court acted within its discretion by issuing the injunction. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [243 Cal.Rptr. 902, 749 P.2d 339]; Blank v. Kirwan (1985) 39 Cal.3d 311, 331 [216 Cal.Rptr. 718, 703 P.2d 58]; Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at p. 912.)

3

Admissibility of Evidence of Survey Data Measuring Magazine Readership

Based on MRI’s data, the trial court found: In the year 1999, magazines containing Reynolds’s advertising were exposed to 97.1 percent of youth and 97.9 percent of adults; and in the year 2000, magazines containing Reynolds’s advertising were exposed to 95.2 percent of youth and 96.3 percent of adults. From those findings, the court concluded the levels of exposure of Reynolds’s advertising to youth and adults were “essentially the same.”

Reynolds characterizes MRI’s data as forming the entire basis for the People’s case that Reynolds violated MSA, subsection III(a) by targeting youth and the trial court’s conclusion about the comparable levels of exposure of Reynolds’s advertising to youth and adults. Reynolds asserts the trial court’s decision “rises and falls” on the “accuracy and reliability” of MRI’s data. Reynolds contends MRI’s data, especially its youth data, was inadmissible hearsay, unreliable and produced overstated and erratic results. It contends the court abused its discretion by admitting those data for their truth (Evid. Code, § 1340) and as the basis of the testimony of the People’s experts (id., § 801, subd. (b)) without the requisite foundational showing by the People.

MRI’s data were based on a survey. A survey conducted to record the recollections of survey respondents is hearsay. (Luque v. McLean (1972) 8 Cal.3d 136, 147-148 [104 Cal.Rptr. 443, 501 P.2d 1163]; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524-1526 [3 Cal.Rptr.2d 833] (Korsak).) However, Evidence Code section 1340 sets forth a hearsay exception: “Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.” (Italics added.) Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [f] . . . [f] (b) Based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Italics added.) We conclude that on this record the trial court properly admitted the challenged MRI data into evidence. (People v. Rowland (1992) 4 Cal.4th 238, 266 [14 Cal.Rptr.2d 377, 841 P.2d 897]; Shamblin v. Brattain, supra, 44 Cal.3d at pp. 478-479; People ex rel. Dept. of Transportation v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1073 [116 Cal.Rptr.2d 240] (Clauser/Wells); Korsak, at pp. 1524-1526.)

(a)

Factual Background Bearing on Admissibility of Evidence of

MRI’s Data

At trial, the parties presented conflicting expert evidence on the admissibility of the challenged MRI data. With respect to the trial court’s foundational ruling to admit MRI’s data into evidence, we consider the evidence and reasonable inferences most favorably to the People.

MRI collects and analyzes data from surveys about magazine readership. MRI’s surveys are based on the question to survey respondents whether they have read or looked into an identified magazine within a specified recent time frame, generally seven days for weekly and 30 days for monthly magazines. Readership includes anyone who responded to the survey as having read or looked into the magazine. Because MRI’s surveys measure only the opportunities to see the advertisements, its data provide estimates of the number of persons to whom the advertising in the magazine is potentially exposed. Thus, the basic underlying unit of data obtained by MRI surveys is the number of people who read or looked into an issue of a magazine and therefore had the opportunity to, but did not necessarily, see an advertisement placed in the magazine.

MRI’s surveys seek to measure two universes. MRI conducts in-person interviews of adults age 18 and above (adult study) in which questions are asked about more than 216 magazines. MRI also conducts a mail survey of persons age 12 to 19 (teen study) in which questions are asked about approximately 60 magazines. The teen study is intended to create an integrated data base. MRI combines the data from its adult study and teen study into a single study known as Twelveplus (everyone age 12 and above), used to measure both the adult and teen audience of a magazine. MRI’s Twelve-plus study includes every magazine measured in its teen study and gives totals for survey respondents age 12 through 17 plus the number of issues (zero to four) read or looked into for each magazine. Based on the Twelveplus data, a media advertising schedule’s exposure to youth can be determined.

MRI’s data are considered the acknowledged industry standard for measuring and comparing readership of adults and teens in the same way that Nielsen is the standard for television ratings data and Arbitran the standard for radio listening data. Media planners use MRI’s data as their “core essential tool” to measure magazine audiences and to plan and implement media advertising schedules. Most advertising agencies use MRI’s data for their magazine audience measurements. Further, because MRI produces the dominant study in the teen measurement field, most advertisers interested in measuring teen audiences for magazines use MRI data as the basis for determining their ability to measure exposure of a magazine to teens.

The average magazine issue audience, referred to in the industry as “vehicle exposure,” is the basis of the measurements provided by MRI (and Simmons) and the standard to evaluate the magazine’s exposure to a target audience. As the predominant form of data available to the media planning and advertising industries, vehicle exposure is the primary criterion for evaluating magazine audiences. Vehicle exposure suggests how many people in general or in a target group have the opportunity to see a magazine advertisement. Also derived from MRI’s vehicle exposure audience data are other measures, including composition, coverage, indices, gross impressions and target impressions. Those derivative numbers, as well as MRI’s basic data, are used by media planners to measure and determine whether a media advertising schedule succeeds in reaching a target group.

Reynolds and its media planner use MRI’s data to evaluate composition, coverage and indices. Magazine audience is generally measured by composition and coverage. Composition is the percent of a target group or other demographic group within the total audience of a magazine. Coverage is the percentage of a target group potentially exposed to an advertisement in a magazine. MRI’s format identifies the composition of youth magazine audience and coverage of the magazine’s exposure to youth. Index refers to the skew of a magazine to a demographic group. An index may compare the youth composition of a magazine’s audience to the percent of youths in the total United States population.

Impressions are the number of advertising viewing opportunities generated by a media advertising schedule. Gross impressions (also called gross rating points) generally refer to the total audience. Gross impressions are cumulative numbers that are the sum of all the audiences of the various magazines across an entire media advertising schedule and suggest the total number of potential exposures to a media advertising schedule. The total audience of a single issue of a magazine multiplied by the number of insertions of advertising in the magazine equals the gross impressions of the magazine. With respect to a target group, the measurements are expressed as target impressions or target rating points. Target rating points express gross impressions as a percentage of the target group with one rating point measuring impressions and equaling one percent of the target group. The total number of impressions divided by the particular population universe equals gross rating points or target rating points. Media planners use target rating points from MRI’s readership data to compare one media schedule to another or exposure to one demographic group to exposure to another.

Advertisers and media planners use the terms “reach” and “frequency” to measure the exposure of advertising to a defined group and to compare exposure of advertising among various groups. Reach means the percentage of a group potentially exposed to an advertising schedule during a specified time period. Frequency means the average number of times persons in the group are exposed to an advertising schedule during the specified time period. Target rating points are the product of the reach and frequency numbers.

Reach and frequency numbers can be derived from the MRI data. Reach is the percentage of a targeted audience to whom a magazine is exposed and quantifies the target audience covered. It also identifies to whom an advertisement is potentially exposed based on survey respondents who have read or looked into a magazine containing the advertisement within a designated time period. Because reach is the nonduplicated coverage of a target group, reach models are used to estimate the unduplicated audience of a media advertising schedule. Frequency is the average number of times that a media advertising schedule is exposed to a target group within a designated time period.

In short, reach refers to the percentage of the population to whom the magazine is exposed and frequency means on average how many times the magazine is exposed to them. Further, target rating points are equal to reach multiplied by frequency. MRI’s reach and frequency numbers are estimated cumulative measures over a year. A reach of 95 percent means that 95 percent of the target group possibly saw the advertisement during the year. With respect to four-month data, monthly reach and frequency numbers can be based directly on MRI’s tabulated data without any projections because they are real empirical data. However, annual reach and frequency numbers require use of extension formulas, including the beta binomial formula, to extend the reach over a one-year time frame. MRI uses the beta binomial formula only to distribute the gross impressions between reach and frequency. MRI’s methodology for projecting cumulative reach is to take the survey data for one to four issues of magazines and then apply the beta binomial formula to arrive at the projection at the end of 52 weeks. MRI developed software for the purpose of obtaining estimates that would raise fewer concerns involving the overlap of which survey respondents read a magazine issue.

MRI’s reach and frequency numbers are based on two different data bases: adult smoker measurements using MRI’s adult study and youth measurements derived from MRI’s composite Twelveplus data. MRI has sought to ensure that the data produced are as compatible as if they came from a single study. Although MRI’s surveys for adults and youths differ from one another, processes exist to equate the two. In measuring magazine readership, MRI’s teen study also weights and conforms the survey responses. The purpose of weighting is to ensure that those who respond to the survey are representative of the entire population. MRI’s weighting process addresses the issue whether the 77 percent of teens who do not respond to the teen survey are like the 23 percent who do, and compensates for the differences in response rates of different demographic groups. Further, MRI uses a conforming procedure to lower the readership levels in its teen study because MRI’s teen data have more overstatement compared to MRI’s adult data. Thus, a reason for MRI’s conforming adjustment is to reduce teen audience levels to the level of the teens who would have responded had they been administered MRI’s adult survey.

Integrated Market Systems (IMS) provides software for various media analyses and has modified MRI’s formula in a proprietary way. IMS has a program that compiles MRI data, inputs criteria (the target base) and produces reports based on the criteria. IMS’s Modal model inputs a media advertising schedule and estimates how many people saw the magazines in that schedule. To calculate each media advertising schedule’s exposure to its stated target, Reynolds used MRI’s data on magazine readership as a source of information. Reynolds then used a computer software program (IMS Modal) to calculate a selected magazine’s reach (the percentage of the target audience to whom the magazine is exposed) and frequency (the average number of exposures of the magazine).

MRI’s data show considerable consistency over time as to which magazines are high or low for exposure to youth. Further, those data are also reliable with respect to the estimates of youth audience (the percent of the audience who are teens). MRI’s data can be used to show who is being exposed to magazines containing Reynolds’s advertisements. Although from 1999 through 2001 young adult smokers age 21 to 34 generally constituted the stated target of Reynolds’s advertising, during those years magazines containing Reynolds’s advertising were exposed to youth in about the same percentages and about as often as exposed to young adult smokers. Those virtually identical numbers of advertising exposure to adult smokers and youth were unusual. Further, reaches of 80 percent or above suggested the result was not accidental.

In 1999 the reach of magazines containing Reynolds’s advertising was 97.1 percent of youth with a frequency of 68.2 times and 97.9 percent of young adult smokers with a frequency of 62.7 times. In 1999 the reach of magazines containing Reynolds’s Camel brand’s advertising was 88.5 percent of youth with a frequency of 22.7 times and 88 percent of young adult smokers with a frequency of 16.8 times.

In 2000 the reach of magazines containing Reynolds’s advertising was 95.2 percent of youth with a frequency of 54.7 times and 96.3 percent of young adult smokers with a frequency of 54.2 times. In 2000 89 percent of Reynolds’s Camel advertisements were placed in magazines with youth audiences above the 10.4 percentage of youth in the United States population and 50 percent of the Camel ads appeared in magazines whose youth audience was above 18.5 percent. In 2001 although Reynolds reduced its overall level of magazine advertising, the target rating points were 1571 for adult smokers age 21 to 34 and 1392 for youth. In 2001 magazines containing Reynolds’s advertising were exposed to 85.5 percent of youth an average of 16.3 times.

Reynolds also made an analysis of the distribution of gross impressions, an accepted method of measuring an advertising campaign’s success in focusing on its target audience, by comparing its brands’ advertising campaigns’ exposure to the stated target with their exposure to other groups within the universe of adult smokers age 21 and over. The analysis uses an index with average delivery set at 100. Thus, an index of 200 means the group analyzed receives double the average number of exposures. The distribution index for Reynolds’s Camel brand’s advertising campaign in 2000 showed exposure to smokers age 21 to 24 was 183, reflecting that group received 83 percent more exposures than the average for all smokers age 21 and over. Those analyses of gross impression distributions showed high exposure to youth and smokers age 18 to 20. In many cases, exposure of advertising to those groups was higher than to Reynolds’s stated target audience. If Reynolds had included those two younger age groups in the impressions distributions analyses it used in evaluating its own targeting, Camel’s 2000 campaign’s high exposure to very young adults would have been a “red flag” to Reynolds that its advertising was exposed to a high number of youth.

MRI’s data can be used for the purpose of magazine selection if the goal is to select magazines with low youth audience and eliminate magazines with high youth audience. Reynolds could identify magazines that would best deliver its advertising to the target group and refine its delivery to ensure its advertising was not exposed to identified groups. By analyzing magazines in terms of composition, coverage and indices, Reynolds could select a different set of magazines to decrease exposure of its advertising to youth. The reach is a function of which magazines are selected. To reduce exposure to youth while maintaining significant exposure to adults, Reynolds could choose magazines with lower teen composition, lower teen coverage and lower teen audience. Were Reynolds making an effort not to target youth, it would concentrate on magazines with a lower youth-to-young-adult ratio. To reduce exposure to youth, Reynolds could also reduce the number of magazines in which it advertised. Instead, in 2000 Reynolds’s advertising was distributed fairly randomly in all magazines on its list instead of concentrated in magazines with low youth composition.

The People’s media planning expert (Silverman) concluded that Reynolds’s media advertising schedule suggested Reynolds was intentionally targeting, or consciously intending not to take positive action to avoid exposure of its advertising to, youth; and Reynolds’s failure to do so suggested it knew with substantial certainty that its tobacco advertising was being exposed to youth.

(b)

Analysis of Admissibility of Evidence of MRI’s Data

In admitting the People’s proffered evidence of MRI’s data over Reynolds’s objections, the trial court found the testimony demonstrated those data were reliable, generally used and relied on as accurate. However, Reynolds asserts the court erred in admitting the evidence and contends MRI’s weighted, conformed and adjusted survey results did not meet the requirements of Evidence Code section 1340’s hearsay exception. Reynolds also contends MRI’s teen data did not constitute a proper basis for expert opinion. (Evid. Code, § 801, subd. (b).) Reynolds contends no court could properly accept or reject the expert opinion testimony about the validity of the MRI data because there was assertedly no basis in the record to understand the procedures used to arrive at MRI’s data. In effect, Reynolds seeks reweighing on appeal of the conflicting evidence presented to the trial court. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290 [130 Cal.Rptr.2d 436]; Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832 [227 Cal.Rptr. 1].) On this record the trial court acted within its broad discretion in admitting into evidence MRI’s survey data and expert testimony based on those data. (Korsak, supra, 2 Cal.App.4th at p. 1523.)

MRI’s surveys are conducted to obtain sample estimates for the number of people exposed to an average issue of a magazine. MRI’s data involve results and statistical projections in terms of sample to population and from one or two weeks to an entire year. However, all surveys are subject to random variability. Except for a complete census of the entire population to which each person responds, no survey is perfect regardless of its size and no survey’s results can be deemed accurate with certainty. The data in a survey such as an audience measurement study cannot be guaranteed as 100 percent reliable (expecting the same results if repeated samples are generated using the same methodology) or 100 percent valid (reflecting exactly what is happening in the universe). Instead, degrees of reliability and validity are recognized. Statistical reliability evaluates the absence of random error, which means the results of subsequent tests are close to the outcome in the initial test. A sample estimate is considered reliable to the extent it does not exhibit substantial random variability. Statistical validity is a measure of whether the test is suitable for its intended purpose, which evaluates whether test results are consistent with reality. Media research consultant Gray testified that in the case of national magazines, MRI’s data have been accepted by the industry as providing sufficient reliability and validity to serve as the standard and the criteria for media evaluation.

Further, the People’s statistics expert (Javitz) conducted a standard statistical analysis of MRI’s readership data, and found MRI’s survey was reliable and valid for purposes of measuring estimated adult and youth audiences for media schedules. Javitz found MRI’s youth data had very good reliability, with very small margins of error with respect to the projected reach and the calculated frequencies for adult smokers age 21 to 34 and teens. Javitz thus concluded that MRI’s studies were very good in terms of their margins of error and MRI’s readership data were the most likely estimate of the magazine’s exposure. Javitz also characterized the amount of random variability in the estimates of average impressions per teen, reach and frequency as sufficiently small to make the data useful. Moreover, Javitz found that the potential of bias in MRI’s data caused by sample selection, weighting, nonresponse bias, differences in the form of the questionnaire or problems with conforming was “minimal” if existent at all, and concluded those data were valid as truthfully expressing the real world. This evidence is contrary to Reynolds’s contention that “no one in the industry really believes” MRI’s data are “accurate.”

Evidence supported the conclusion that MRI’s weighted, conformed and adjusted survey results met the requirements of Evidence Code section 1340’s hearsay exception and constituted a proper basis for expert opinion for purposes of Evidence Code section 801, subdivision (b). Gray testified that conforming in general is a common occurrence accepted within the media research industry and MRI’s conforming procedure is accepted in that field. Similarly, lavitz found MRI’s conforming process was reasonable, consistent with appropriate statistical methods and procedures, and included the action a statistician would take to adjust for differences in survey methods and procedures. Further, lavitz analyzed MRI’s weighting process, and found zero potential bias. Moreover, lavitz found that MRI’s surveys were conducted in accordance with appropriate and generally accepted methods and procedures followed by social scientists and statisticians, specifically with respect to MRI’s sampling procedure and, in particular, MRI’s selection of its teen sample. Additionally, the People’s survey design expert (Kamins) testified: MRI’s teen survey’s sample size of more than 3,000 was sufficiently large to support “pretty steady inferences”; MRI’s teen study’s universe definition and sample size were trustworthy; the design and administration of the survey instrument in MRI’s teen study were trustworthy; MRI’s teen study’s response rate was more than adequate; MRI’s teen study was trustworthy; hence, validity and reliability were present; if validity is present, reliability is present by definition; if the observed measure equals truth, random variation is eliminated; and if random variation is eliminated, reliability is present by definition. Finally, with respect to Reynolds’s attack on the procedures used to arrive at MRI’s data, the record contained the testimony of MRI’s vice president of software development (Safran) that IMS’s Modal model is generally used for planning purposes and accepted as a reasonable representation of reach and frequency; and compared to other actual tabulated data, the model produces numbers that are reasonable given that it is a model and is adequate for use for industry practices.

Reynolds also attacks the court’s findings that magazines in which Reynolds advertised were exposed to 97.1 percent of youth and 97.9 percent of adults in 1999; magazines in which Reynolds advertised were exposed to 95.2 percent of youth and 96.3 percent of adults in 2000; and those levels of exposure to youth and adults were essentially the same. Reynolds contends that on their face, such high percentages do not pass the common sense test. However, lavitz testified it was plausible that for a year rather than a six-month period, Reynolds’s advertising could have obtained an exposure in the mid-90’s for its 2000 media plan.

Evidence also suggested the utility of MRI’s data is not limited to its precise numbers. Instead, MRI’s data can be used to show who is exposed to magazines containing Reynolds’s advertisements because those data portray the comparison of exposure to various groups. The People’s media planning expert (Silverman) testified it was appropriate to compare annual reach and frequency numbers of Reynolds’s media plans for youth with the stated adult target because those numbers are an indicator of those to whom the advertisement is really being exposed and how often exposed over the course of a year. Further, target rating points are also valuable for media planners as a comparative measure of one schedule to another or one year to another. Thus, although characterizing as “very fuzzy” the line between using MRI’s data for relative comparison and accepting the data at face value, Gray testified that looking at teen-measured magazines’ exposure to adult smokers and youth was a way of indicating whether there was targeting to any particular group and the degree to which that occurred. Moreover, noting that impressions and target rating points are derived directly from MRI’s data and are the input to the computer models while the output is the reach and frequency for the time period a model is asked to calculate, Gray concluded that to put things on a relative per capita basis, it is more meaningful to look at target rating points for purposes of comparing delivery of youth-measured magazines. Similarly, Reynolds’s statistics expert (Olkin) acknowledged that MRI’s data were not implausible and that any unreliability resulting from application of computerized extension formulas had nothing to do with gross impressions. Further, the relationship between high exposure to adults and youth is the same whether viewed on an annual, quarterly or monthly basis. Thus, for comparison purposes, annual numbers are appropriate. Additionally, the numbers can be used to compare one media advertising schedule to another or one vehicle to another. As observed by Reynolds’s senior vice president of marketing (Creighton), relative comparisons over time show whether a media plan is successful.

Statements within the hearsay exception of Evidence Code section 1340 are sufficiently trustworthy to overcome concerns about the reliability of those hearsay statements. (In re Michael G. (1993) 19 Cal.App.4th 1674, 1677-1678 [24 Cal.Rptr.2d 260]; Miller v. Modern Business Center (1983) 147 Cal.App.3d 632, 635 [195 Cal.Rptr. 279] [“[trustworthiness is reasonably assured by the fact that the business community generally uses and relies upon the compilation and by the fact that its author knows the work will have no commercial value unless it is accurate”].) In admitting MRI’s data into evidence, the trial court found MRI is the most widely used and accepted service for measuring magazine exposure in the United States; MRI’s adult and teen surveys are conducted in accordance with appropriate and generally accepted methods and procedures followed by social scientists and statisticians; MRI’s adult and youth data are valid and reliable; and MRI’s adult and youth data are generally used and relied on as accurate in the course of business. “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain, supra, 44 Cal.3d at pp. 478-479; Korsak, supra, 2 Cal.App.4th at p. 1523.) On this record, substantial evidence and reasonable inferences supported the trial court’s foundational ruling to admit MRI’s data into evidence. Further, even if MRI’s youth data were inadmissible hearsay, the court could have correctly concluded the data constituted a proper basis for expert opinion because advertising experts reasonably rely on those data to determine exposure of magazine advertising to youth. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618 [59 Cal.Rptr.2d 356, 927 P.2d 713]; Korsak, at pp. 1524—1525 [experts have “considerable leeway as to the material on which they may rely”].) The court did not abuse its discretion by admitting MRI’s data into evidence or permitting the People’s experts to give testimony based on those data.

Although Reynolds contends the evidence of MRI’s data was inadmissible as unreliable and expert testimony based on those data was also inadmissible, Reynolds essentially concedes that if those matters were properly admitted, there is substantial evidence to support the ultimate judgment favoring the People. Considering our interpretation of MSA, subsection III(a)’s prohibition on youth targeting and our determination upholding the trial court’s foundational evidentiary rulings, on this record we conclude substantial evidence and reasonable inferences established that Reynolds violated MSA, subsection III(a) by targeting its tobacco advertising to youth. (Cel-Tech, supra, 20 Cal.4th at p. 172; Kramme, supra, 20 Cal.3d at pp. 572-573; Schroeder, supra, 11 Cal.3d at p. 922 & fn. 10.)

4

Evidence of Violation Within California

To establish violation of the prohibition against targeting youth set forth in MSA, subsection III(a) and Consent Decree, section V(A), the People were required to prove Reynolds targeted youth within the State of California. In its statement of decision, the trial court found, based on MRI’s data, that in 1999, “97.1 percent of Youth across the country, including California, were exposed to [Reynolds’s] ads 68.2 times.”

In its statement of decision, the trial court also concluded that nothing in the evidentiary record could reasonably support a determination that MRI’s nationwide data did not apply to California. In reaching that conclusion, the court noted that Reynolds did not object at trial to introduction of the nationwide MRI data on the ground the data did not correctly reflect exposure to youth in California. The court also noted Reynolds did not present substantial evidence that MRI’s results for California would differ from nationwide results.

Reynolds attacks the court’s conclusion as improperly i