The People of the State of Colorado v. Zachariah M. Jones, a/k/a Zackariah M. Jones

In October 2013, Zachariah M. Jones was arrested, charged, and released on

bond, in connection with several felony drug offenses in Denver County. Some four

months later, the Denver District Attorney moved to revoke his bond, alleging that

while Jones was released on bond in the present case, a court in Adams County issued a

warrant for his arrest, based on conduct resulting in a charge of second degree assault.

Relying on a provision of section 16-4-105(3), C.R.S. (2014), the motion asserted that the

district court was empowered to revoke the defendant’s bond because, during the time

he was released on that bond, a competent court had found probable cause to believe he

committed a felony. After hearing the motion, the Denver District Court granted it;

revoked the defendant’s bond in this case; and declined to reassess bond until the

Adams County case had been resolved.

¶4 The defendant appealed the district court’s order to the court of appeals

pursuant to the expedited procedures set forth in section 16-4-204, C.R.S. (2014). In a

published opinion, the court of appeals concluded that it lacked jurisdiction under

section 204 and dismissed the defendant’s appeal. The appellate court reasoned that its

power of review pursuant to this statutory provision included only review of those

orders entered pursuant to three specifically enumerated statutory sections, none of

which was section 16-4-105.

¶5 The defendant petitioned this court pursuant to C.A.R. 21 for relief from the

district court’s “no-bond hold.” In issuing our rule to show cause, we expressly

ordered the district attorney to also address the defendant’s entitlement to review

according to the expedited review provisions of section 16-4-204.

II.

¶6 Exercise of this court’s original jurisdiction is entirely within its discretion.

People v. Nichelson, 219 P.3d 1064, 1066 (Colo. 2009). We have often deemed relief

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pursuant to C.A.R. 21 appropriate to correct an abuse of discretion or an excess of

jurisdiction where no other adequate remedy exists. See, e.g., id.; Pearson v. Dist.

Court, 924 P.2d 512, 514 (Colo. 1996). As recognized by both statute and rule, a review

of rulings affecting a criminal defendant’s release pending trial, by the very nature of

such rulings, can generally serve a useful purpose only if it is permitted immediately,

without awaiting a final judgment in the case. See § 16-4-204(1), C.R.S (2014)

(permitting appeal after entry of order); C.A.R. 9(a) (“An appeal authorized by law

from an order refusing or imposing conditions of release shall be determined

promptly.”). The published opinion of the court of appeals narrowly construing its

jurisdiction over bond orders has not only left the defendant without any other

meaningful remedy in this case; because the statute it construes purports to provide the

exclusive method of appellate review for both pretrial and post-conviction bond orders,

that judgment effectively eliminates any meaningful right of review for a large class of

unreleased defendants.

III.

¶7 At least since the enactment of Colorado’s Criminal Procedure Code in 1972,

matters concerning the types and conditions of both pretrial and post-conviction bail

bonds, the requirements for setting and modifying those bonds, and the review of such

settings or modifications, as well as matters concerning the forfeiture, termination, and

enforcement of bail bonds and exoneration from bond liability have, within

constitutional limitations, see Colo. Const. art. II, § 19, been governed by statute in this

jurisdiction. See ch. 44, 1972 Colo. Sess. Laws 190–268 (enacting Colorado Code of

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Criminal Procedure, including bail provisions). More specifically, parts 1 and 2 of title

16, article 4, of the revised statutes prescribe the mechanics of release from custody

pending final adjudication of criminal charges. As relevant here, sections 101 and 102

of that article affirm that all persons, with certain narrowly defined exceptions, are

bailable by sufficient sureties pending disposition of the charges against them, and

dictate that upon request by any person in custody for whom the court has not already

set bond, that person shall be brought before the court and, as long as the offense for

which he was arrested is bailable, shall have bond and conditions of release set by the

court. §§ 16-4-101 to -102, C.R.S. (2014).

¶8 In addition to providing for an early determination of the type of bond and

conditions of release for all bailable defendants, the statutory scheme details the

purposes to be served by, and the criteria to be considered in making, those

determinations, see § 16-4-103, C.R.S. (2014) (Setting and selection type of bond -

criteria); the various types of pretrial bond available for setting by the court, see

§ 16-4-104, C.R.S. (2014) (Types of bond set by the court); specific conditions of release

to be made applicable to bonds, see § 16-4-105, C.R.S. (2014) (Conditions of release on

bond); and authorization for the court to modify the conditions of bond, including the

procedural prerequisites for doing so, see § 16-4-109, C.R.S. (2014) (Reduction or

increase of monetary conditions of bond - change in type of bond or conditions of bond

- definitions). Of particular relevance to the district court’s action in this case, section

16-4-105(3) mandates that every bond include the condition that the released person not

commit any felony while free on bail bond. In addition to requiring the imposition of

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this condition, section 105(3) also authorizes the court to take particular action

concerning the defendant’s bond “if it is shown that a competent court has found

probable cause to believe that the defendant has committed a felony while released,

pending the resolution of a prior felony charge.”

¶9 Further, the statutory scheme not only provides its own form of appellate

review, but in fact mandates that the expedited procedure prescribed by it be the

exclusive method of appellate review of orders entered pursuant to section 16-4-104

(Types of bond set by the court), section 16-4-107 (formerly, Reduction or increase of

bail - change in type of bond), or section 16-4-201 (Bail after conviction). See § 16-4-204.

Because amendments to the statutory scheme in 2013 re-designated the content of

section 16-4-107, with only minor changes, as section 16-4-109, without similarly

amending the reference to section 107 in the scheme’s provisions for appellate review,

see ch. 202, sec. 2, § 16-4-109, 2013 Colo. Sess. Laws 830–31; and because the statutory

section currently designated section 107 provides for a motion for reconsideration of

monetary conditions of bond rather than a court order of any kind, see § 16-4-107, C.R.S.

(2014); the question whether the district court’s order in this case falls within the scope

of the statutorily prescribed expedited appellate review procedure necessarily entails

two separate inquiries: first, whether the orders appealable by section 204 include

orders currently authorized at section 109, and second, even if so, whether the district

court’s order at issue in this case constitutes such an order.

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A.

¶10 A statute has meaning according to the legislative intent expressed in the

language of the statute itself. Pham v. State Farm Auto. Ins. Co., 2013 CO 17, ¶ 13, 296

P.3d 1038, 1043. When the language of a statute is susceptible of more than one

reasonable understanding and is therefore considered ambiguous, or when there is

conflicting language, a substantial body of interpretive aids, either provided by the

legislature to explain its own drafting conventions and preferences for resolving

conflicts, see tit. 2, art. 4, C.R.S. (2014), or developed by the courts over centuries, see

generally Norman J. Singer & Shambie Singer, Sutherland Statutes & Statutory

Construction (7th ed. 2007), determines which of these reasonable understandings

embodies the legislative intent. Frank M. Hall & Co., Inc. v. Newsom, 125 P.3d 444, 448

(Colo. 2005). Among these interpretative aids, we have often noted that when a statute

is a component part of a more comprehensive scheme, the entire scheme should be

understood, whenever possible, to give consistent, harmonious, and sensible effect to all

of its parts, Fierro v. People, 206 P.3d 460, 461 (Colo. 2009); and in this regard, we have

also observed that the historical development of such a statutory scheme can often shed

light on the purposes behind its various component parts, Frank M. Hall, 125 P.3d at

448.

¶11 Statutes referencing other statutes, without more, necessarily involve some

degree of ambiguity. Regardless of the precision with which a cross-reference is made,

it can generally be understood as a reference to either the designated provision as it

existed at the time the referring statute was enacted or the provision of that designation

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at the time of the action to which it is made relevant by reference; or perhaps even the

original content or substance of the designated code provision, despite that content

having since been re-designated or relocated within the code. See Herrmann v. Cencom

Cable Assocs., Inc., 978 F.2d 978, 982–83 (7th Cir. 1992) (considering all three

possibilities). It has commonly been held that absent any contrary indication, a

reference by precise designation to a subsequently amended statute is presumed to

describe the content of the designated statute at the time of its incorporation, rather

than at the time of any subsequent amendment. See, e.g., Sch. Dist. No. 1 in Arapahoe

Cnty. v. Hastings, 220 P.2d 361, 364 (Colo. 1950); Schwenke v. Union Depot, Etc., Co., 4

P. 905, 907 (Colo. 1884); see also Singer & Singer, supra, § 51:7. In this jurisdiction,

however, the legislature has acted to abrogate this common law rule by declaring that

“[a] reference to any portion of a statute applies to all reenactments, revisions, or

amendments thereof.” § 2-4-209, C.R.S. (2014).

¶12 While this legislatively imposed interpretative provision was clearly intended as

a rejection of the common law resolution of this ambiguity, it does not, in and of itself,

always provide an alternate solution to the problem. In the case of a statutory

reorganization in particular, the rule of section 2-4-209 leaves unanswered the question

whether an unaltered cross-reference to a particular provision of the code, following the

re-designation and reenactment of the content of that provision, is to be understood as a

reference to the new content found at the designated location or to the former content of

that designation, at its new location in the statutory scheme. At least where, as here, the

content of a referenced code provision has for the most part merely been moved to a

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different location as part of a general revision and reorganization, and the new content

of the un-updated statutory reference would, in context, render the reference

meaningless, the ambiguity must be resolved in favor of the latter rather than the

former interpretation.

¶13 With or without a similar statutory abrogation of the common law presumption,

a host of other jurisdictions, although not expressing themselves in identical terms, have

arrived at substantially the same solution to the not uncommon occurrence of un

updated cross-references. See Herrmann, 978 F.2d at 983 (“Every new section or

sentence in a text riddled with cross-references poses a risk that one of the references

will point to thin air, or to a destination out of synch with the referring provision. . . .

The best approach, we believe, is the one we have used here: treat the referring clause

as continuing to point to its original target, even if that target moves or acquires a new

number.”); see also United States v. Bahe, 201 F.3d 1124, 1136 (9th Cir. 2000) (correcting

cross-reference left un-updated by “inadvertent clerical error” of Congress during

amendment of statute); United States v. D’Amario, 412 F.3d 253, 256 (1st Cir. 2005)

(same); United States v. Griner, 358 F.3d 979, 982 (8th Cir. 2004) (same); United States v.

Coatoam, 245 F.3d 553, 557, 560 (6th Cir. 2001) (correcting un-updated cross-reference as

“simple drafting error”); In re Chateaugay Corp., 89 F.3d 942, 954 (2d Cir. 1996)

(updating cross-reference as “technical drafting error” created when Congress revised

and renumbered statute, but expressed no intent to make change that un-corrected

cross-reference would effect); Dir., Office of Workers' Comp. Programs, U.S. Dep't of

Labor v. Peabody Coal Co., 554 F.2d 310, 331 (7th Cir. 1977) (correcting cross-reference

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“left unmodified” after statutory amendment); In re Koper, 284 B.R. 747, 752 n.10

(Bankr. D. Conn. 2002) (correcting un-updated cross-reference “left unaltered by virtue

of a drafting or codification error”); In re Gaumer, 83 B.R. 3, 4 (Bankr. S.D. Ohio 1988)

(correcting un-updated cross-reference after finding no indication in legislative history

that any substantive change was intended by relocation of referent); Providence &

Worcester R.R. Co. v. Energy Facilities Siting Bd., 899 N.E.2d 829, 832 n.4 (Mass. 2009)

(correcting, as “scrivener’s error,” cross-reference to unrelated provision, caused by

legislature’s failure to update cross-references during amendment); State ex rel.

Gutbrod v. Wolke, 183 N.W.2d 161, 164–65 (Wis. 1971) (correcting un-updated cross

reference as “clerical error in numbering”); cf. Robinson v. Wroblewski, 704 N.E.2d 467,

473 (Ind. 1998) (correcting erroneous cross-reference not a product of subsequent

amendments to referent provision); In re Thierry S., 566 P.2d 610, 617 n.13 (Cal. 1977)

(similar); In re Adoption of H.C.H., 304 P.3d 1271, 1285 (Kan. 2013) (striking cross

reference that referred to no past or present statute).

B.

¶14 Understanding the reference in section 204 to be a reference to the statutory

authorization for changes in the type or conditions of bond now designated section

16-4-109, the question remains whether, for purposes of appellate review, the order at

issue here is properly characterized as an order entered pursuant to section 109. The

court of appeals answered this question in the negative, finding that the trial court’s

order was entered pursuant to section 16-4-105(3), as distinguished from, rather than as

well as, section 16-4-109.

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¶15 Section 204 both provides for and makes exclusive an expedited procedure for

the appellate review of orders entered pursuant to any of three expressly denominated

statutory provisions. § 16-4-204(1). The first of these provisions mandates that the

court determine which of various statutorily approved types of bond is appropriate for

the pretrial release of the person in custody, subject to conditions authorized, or

required, by section 105. See § 16-4-104. The second authorizes changes in the type or

conditions of bond upon application by one of the parties, even after the defendant has

been released on bond. See § 16-4-109 (formerly section 16-4-107). And the third

authorizes the continuation of a defendant’s pretrial bond or his release on another

statutorily approved type of bond pending the determination of a motion for new trial

or in arrest of judgment, or during any stay of execution, or pending review by an

appellate court. See § 16-4-201, C.R.S. (2014).

¶16 Collectively, these three provisions authorize court orders for the determination,

modification, and continuation of bail bonds, both before and after conviction. While

other sections of the statutory scheme provide, for example, for specific goals, timing,

grounds, limitations, and conditions, including special consequences of breaching

particular conditions, these three statutory sections represent, broadly speaking, the

enabling provisions or procedural vehicles for virtually all orders affecting the types or

conditions of bail bonds. Even the denial of an application for a bond or a motion for its

modification is reasonably understood as an order pursuant to one of these provisions.

¶17 Section 109, in particular, authorizes courts, upon application by the district

attorney or the defendant, to increase or decrease the financial conditions of bond;

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require additional security for a bond; dispense with security theretofore provided; or

alter any other condition of a bond. It prescribes procedural requirements, including

notice and hearings, as well as authorizing the issuance of warrants commanding peace

officers to bring defendants without unnecessary delay before the court. As a further

indication of its general applicability, section 109 guarantees the district attorney a right

to appear and advise the court “at all hearings seeking modification of the terms and

conditions of bond” (emphasis added).

¶18 By contrast, section 105, entitled “Conditions of release on bond,” enumerates

conditions that either may or must be included in every bond, or at least bonds in the

prosecution of designated classes of offenses. With regard to two mandatory conditions

in particular—that the released person appear at the time and place required and that

he not commit a felony while free on bond—section 105 goes beyond simply mandating

the condition itself and also addresses consequences of its breach. The statute specifies

with regard to the former not only that it is a condition for the breach of which

forfeiture is an available consequence, but that it is in fact the sole condition for which

that consequence is available, § 16-4-105(1), C.R.S. (2014); and with regard to the latter,

that even an apparent breach, as evidenced by a probable cause finding of another

court, is proof enough to permit revocation of the defendant’s release and modification

of the conditions of his bond, § 16-4-105(3). While section 105 identifies forfeiture as a

consequence of breaching the former condition, the court’s authority to declare a

forfeiture and the procedures for doing so are located elsewhere, at sections 16-4-111

and -114, C.R.S. (2014). Similarly, while section 105 identifies a particular evidentiary

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basis for changing a defendant’s bond, the general authorization and the procedures for

changing the type or conditions of bond are found at section 16-4-109.

¶19 The court of appeals reasoned from our prior case law that rather than

constituting an example of a change in type or condition of bond authorized by section

109, a change in bond for breach of the condition mandated by section 105(3)—that the

released person not commit a felony while free on bond—must be distinguished from

those changes authorized by section 109. Relying heavily on our refusal to apply an

accelerated speedy trial requirement of an earlier incarnation of section 105(3), to bond

modifications generally, see People v. Mascarenas, 706 P.2d 404, 406 (Colo. 1985), the

court of appeals concluded that these two sections must be mutually exclusive.

Attaching a speedy trial consequence to an increase in the financial condition or

security requirement of a bond under a particular set of circumstances or for one

particular reason but not others, however, in no way suggests that an increase for that

particular reason or under those circumstances is therefore not a change authorized by

the general enabling provision at all.

¶20 Quite the contrary, on their face sections 109 and 105(3) are related as an

authorization for the modification of bond conditions generally and the separate

treatment of one particular bond condition. Rather than constituting different and

distinct mechanisms or procedures, as the court of appeals concluded, section 109’s

authorization for the issuance of a warrant to compel the attendance of a previously

released defendant, for example, merely provides a means for enforcing an order for the

revocation of the defendant’s release and modification of his bond, as more specifically

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authorized by section 105(3). Rather than creating a new power to compel the

defendant’s attendance and modify his bond, not already found in section 109, section

105(3) merely supplies a particular evidentiary justification for doing so.

¶21 The rationale for providing an expedited appellate review of orders setting or

changing the types and conditions of bail bonds is manifest and needs no further

explanation or justification. No practical or policy justification has been suggested, and

we can conceive of none, for depriving defendants disadvantaged by a change in their

bond conditions according to section 105(3) of the same expedited review allowed for

all other defendants dissatisfied with orders affecting the types or conditions of their

bail bonds. Because the language of section 105(3) can be reasonably understood to

describe one particular ground for effecting a change in bond conditions as authorized

by section 109, and because this interpretation, unlike the narrow reading of the

intermediate appellate court, gives consistent, harmonious, and sensible effect to, and

furthers the purposes of, the statutory bail bond scheme as a whole, we conclude that,

for purposes of the appellate review prescribed by section 204, an order premised on

the evidentiary rule announced in section 105(3) is, at one and the same time,

necessarily an order pursuant to section 109.

IV.

¶22 Although the defendant therefore has an exclusive right of review in the

appellate court, that right in no way limits this court’s exercise of its original

jurisdiction. See Colo. Const. art. VI, § 3. In light of the procedural history of this case,

the urgency that attaches to the review of bail bond orders, and the fact that the matter

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at issue is one of statutory construction, fully briefed to and already partially resolved

by this court in addressing the question of appellate review, we consider it appropriate

to exercise our original jurisdiction and address the merits of the district court’s order.

¶23 Section 105(3) mandates that a condition of every felony bond be that the

released person not commit any felony while free on bond, and it empowers the court

to take certain actions upon being shown that a competent court has found probable

cause to believe the defendant has committed a felony while released. In the precise

language of the statute, the action the court is empowered to take upon such a showing

is “to revoke the release of the person, to change any bond condition, including the

amount of any monetary condition.” § 16-4-105(3). While it may have been arguable

under the predecessor prohibition against committing another felony while on bond

that revoking release, increasing the bail bond, and changing any bail bond condition

were presented as alternatives, in a disjunctive series, see § 16-4-103(2)(c), C.R.S. (2012)

(conveying “the power to revoke the release of the defendant, to increase the bail bond,

or to change any bail bond condition”), since the 2013 amendments to the scheme this

reading is no longer even facially available, see § 16-4-105(3); see also ch. 202, sec. 2,

§ 16-4-105(3), 2013 Colo. Sess. Laws 826 (enacting section 105(3) in its current form).

Under current wording and punctuation, it is clear that the court is empowered “to

revoke the release of the person” for one purpose and one purpose only: “to change any

bond condition.” § 16-4-105(3).

¶24 Given the only purpose for which a finding of probable cause is sufficient to

justify the revocation of a defendant’s release, the temporary nature of such a

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revocation is implicit. The language and syntax of the statute itself necessarily imply

that such a defendant’s release may be revoked only long enough for reconsideration of

the conditions of his bond, unless that reconsideration results in an increase in the

financial condition or security requirements of the bond such that he is unable to

comply and again secure his release on bond. See id. To the extent some ambiguity

could remain concerning the permanency of revocation, any construction permitting

revocation of a defendant’s release pending trial, or favorable resolution of his other

felony charge, as the trial court ruled in this case, would seriously risk infringing on his

constitutional entitlement to bail. See § 2-4-201(1), C.R.S. (2014) (“In enacting a statute,

it is presumed that . . . [c]ompliance with the constitutions of the state of Colorado and

the United States is intended . . . .”); People v. Thomas, 867 P.2d 880, 883 (Colo. 1994)

(“When possible, statutes are to be construed in such manner as to avoid questions of

their constitutional validity.”).

¶25 Article II, section 19 of the Colorado Constitution provides that all persons, with

several specifically enumerated exceptions, shall be bailable by sufficient sureties

pending disposition of the charges. Those exceptions are limited to charges of capital

offenses and legislatively defined crimes of violence, under limited circumstances,

where proof of the charged offense is also evident and the presumption of conviction is

great. The constitutional exceptions to bailability clearly cannot be understood to

include a mere finding of probable cause to believe a defendant, released on bond

pending any felony charge, has committed another felony while free on that bond.

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¶26 Nor can article II, section 19 be read to mandate no more than that non-excepted

persons be bailable only until such time as the breach of a legislatively imposed

condition has been demonstrated, to the extent required by the general assembly. The

constitution unequivocally provides that all non-excepted persons shall be bailable

“pending disposition of charges.” Colo. Const. art. II, § 19(1). Whether or not this

language admits of some ambiguity for other purposes, it cannot be reasonably

understood to mean that such persons are bailable only so long as they comply with

legislatively imposed conditions.

¶27 Notwithstanding the constitutional mandate that non-excepted persons be

bailable, the legislative and judicial branches are not without recourse to act for the

protection of the public. Article II, section 19 mandates only that all non-excepted

persons shall be bailable “by sufficient sureties.” In addition to describing the

permissible types and conditions of bail bonds, the statutory scheme requires that the

type and conditions of release set by the court be sufficient not only to reasonably

ensure the appearance of the person as required but also to protect the safety of any

person or the community. § 16-4-103(3)(a), C.R.S. (2014). While the defendant in this

case may be constitutionally entitled to pretrial bail bond, the district court’s discretion

to change any condition of his bond must be exercised in light of these purposes and the

condition imposed at section 16-4-105(3), that he shall not commit any felony while free

on bond.

Because Colorado’s statutory scheme governing release on bail entitled Jones to

an expedited review of the district court’s order revoking his existing bond and

declining to set another pending trial, the court of appeals erred in concluding that it lacked jurisdiction to entertain his appeal. Because section 105(3) merely empowered the district court to have Jones brought before it for purposes of modifying the conditions of his pretrial release, the district court erred in revoking his existing bond and denying him a right to pretrial release altogether. The rule is therefore made absolute, and the matter is remanded to the district court with directions to reinstate Jones’s bail bond or change any condition thereof, as authorized by statute.