Opinion
H046164
03-15-2024
THE PEOPLE, Plaintiff and Respondent, v. MONICA MARIE MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1518585)
MEMORANDUM OPINION
Grover, J.
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Defendant Monica Marie Martinez, a bail licensee at the time of the complaint, was charged with seven felony counts of entering into an arrangement with a county jail inmate to notify Martinez of the fact of an arrest. (Ins. Code, § 1814; Cal. Code Regs., tit. 10, § 2076.) Martinez demurred to the complaint, arguing the relevant statute and regulation together violate the separation of powers doctrine; do not state a public offense because they do not require any mens rea; violate her federal and California constitutional rights to free speech; and are unconstitutionally vague and overbroad. The trial court overruled the demurrer, and Martinez pleaded no contest as part of a negotiated disposition to one of the seven felony counts. (Ins. Code, § 1814; Cal. Code Regs., tit. 10, § 2076.) The trial court suspended imposition of sentence and placed Martinez on formal probation.
Martinez appealed her conviction, pursuing only the free speech, vagueness, and overbreadth issues. A divided panel of this court reversed the judgment of conviction in 2020, finding that California Code of Regulations, title 10, section 2076 is facially invalid under the First Amendment to the federal constitution. (People v. Martinez (2020) 59 Cal.App.5th 280, reversed by People v. Martinez (2023) 15 Cal.5th 326 (Martinez).)
The Supreme Court granted review and reversed. The court explained that individuals engaged in the bail bond business must obtain a license from the Insurance Commissioner. (Martinez, supra, 15 Cal.5th at p. 335.) Among other rules promulgated by the Insurance Commissioner to regulate bail licensees, California Code of Regulations, title 10, section 2076 (hereafter, section 2076) states: "No bail licensee shall, for any purpose, directly or indirectly, enter into an arrangement of any kind or have any understanding with a law enforcement officer, newspaper employee, messenger service or any of its employees, a trusty in a jail, any other person incarcerated in a jail, or with any other persons, to inform or notify any licensee (except in direct answer to a question relating to the public records concerning a specific person named by the licensees in the request for information), directly or indirectly, of: [¶] (a) The existence of a criminal complaint; [¶] (b) The fact of an arrest; or [¶] (c) The fact that an arrest of any person is impending or contemplated; [¶] (d) Any information pertaining to the matters set forth in (a) to (c) hereof or the persons involved therein."
The Supreme Court applied intermediate scrutiny to the free speech challenge to section 2076, under which the state had to "show that the regulation is supported by a 'substantial' governmental interest; that the regulation 'directly advances the governmental interest asserted'; and that the regulation 'is not more extensive than is necessary to serve that interest.'" (Martinez, supra, 15 Cal.5th at p. 347; quoting Central Hudson Gas &Electric Corp. v. Public Service Commission of New York (1980) 447 U.S. 557, 566.) The court found two government interests to be substantial: promoting secure jail administration and promoting fair competition in the bail bond industry. (Martinez, at p. 348.) The court determined the regulation directly advances those government interests by "prevent[ing] bail bond businesses from developing insider information networks within jails and prisons that would give them an unfair 'first mover' advantage in the bond services market." (Martinez, at p. 349.) Insider information networks undermine jail security conditions because inmates recruited to provide information would have incentive to pressure other inmates to use certain bail bond firms and to retaliate against inmates working for rival businesses. (Id. at p. 351.) By contrast, the regulation encourages legitimate forms of competition, "such as competition on 'price, scope, and quality of services.'" (Id. at p. 349.) And the court found the regulation was not more extensive than necessary to serve those government interests because "while the regulation does forbid both formal and less formal arrangements between licensed bail bond agents and inmates about the sharing of arrest information, bail licensees are free to obtain that information through public records requests or any other publicly available source." (Id. at p. 352.) The court remanded the case to this court, and the parties filed supplemental briefs.
Martinez attempts in her supplemental brief to resurrect two arguments she raised in her trial court demurrer but did not advance on appeal: that section 2076 cannot be used as a criminal penalty because "there is no union, or joint operation of act and wrongful intent as required by Penal Code section 20"; and that Insurance Code section 1814 is an unconstitutional delegation of the legislative power to create criminal law. Martinez has forfeited those issues by not raising them in her initial appeal. (People v. Senior (1995) 33 Cal.App.4th 531, 538 ["[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay."]; see also Cal. Rules of Court, rule 8.200(b)(2) ["Supplemental briefs must be limited to matters arising after the previous Court of Appeal decision in the cause, unless the presiding justice permits briefing on other matters."].) Without citation to language in the Supreme Court's opinion, Martinez contends the decision "narrowed the scope of 2076 to only allow the prohibition of speech that affected notification agreements to provide private information from an inmate, about a potential bail client." But the Supreme Court did not purport to narrow the statute. It merely determined that section 2076 is facially valid under the First Amendment. (Martinez, supra, 15 Cal.5th at p. 352.) We see nothing in the Supreme Court's decision that allows Martinez to expand the scope of her appeal on remand to raise issues she could have argued but elected not to include in her original briefing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Greenwood, P. J., Bromberg, J.