Lucero v. District Court of Twelfth Judicial Dist., 26740

• Decision Date: 13 March 1975
• Docket Number: No. 26740,26740
• Citation: 188 Colo. 67,532 P.2d 955
• Parties: Robert Andrew LUCERO, II, Petitioner, v. The DISTRICT COURT OF the TWELFTH JUDICIAL DISTRICT et al., Respondents.
• Court: Colorado Supreme Court

Page 955

532 P.2d 955

188 Colo. 67

Robert Andrew LUCERO, II, Petitioner, v. The DISTRICT COURT OF the TWELFTH JUDICIAL DISTRICT et al Respondents.

No. 26740.

Supreme Court of Colorado, En Banc.

March 13, 1975.

Rehearing Denied March 24, 1975.

Kenneth A. Padilla, Walter L. Gerash, Denver, for petitioner.

J. O. Lewis, Dist. Atty., Alamosa, for respondent The Hon. Whitford W. Myers.

ERICKSON, Justice.

In this original proceedings, the petitioner, Robert Andrew Lucero, II, seeks relief in the nature of mandamus to compel the reinstatement of bail. He asserts that bail was revoked without cause and that he was denied the constitutional right to bail guaranteed by Article II, Section 19 of the Colorado Constitution. We issued a rule to show cause and now make the rule absolute and direct that bail be reinstated.

On September 18, 1974, an information was filed charging Lucero with attempted aggravated robbery (1971 Perm.Supp., C.R.S.1963, 40--2--101; section 18--2--101, C.R.S.1973) and with first-degree murder (1971 Perm.Supp., C.R.S.1963, 40--3--102; section 18--3--102, C.R.S.1973).

Thereafter, he filed a motion for bail and obtained a hearing. At the hearing, which was held in compliance with section 16--4--105, C.R.S.1973 (Colo.Sess.Laws 1972, ch. 44, 39--4--105, at 205--206) and Crim.P. 46, testimony was taken relating to the defendant's character, reputation, family background, and his ties to the community. The district attorney, in the course of the hearing, acknowledged that the defendant was entitled to bail, and the court fixed bail at $25,000. When bail was set, the district judge imposed conditions relating to the defendant's right to remain at liberty on bail. Thereafter, the defendant made bail.

The imposition of conditions that comply with the constitution is in keeping with the recommendations of the Standards for Criminal Justice. ABA Standards Relating to Pretrial Release § 5.5. However, in this case, the trial judge imposed an improper and unconstitutional condition. The bail order included the following condition:

'If probable cause shall be shown to this court that any of the above offenses shall have been committed by either defendant, bond for that particular defendant shall be immediately terminated.' ¹

Thereafter, the defendant filed a motion to obtain a preliminary hearing (section 16--5--301, C.R.S.1973; Crim.P 7(h); Colo.Sess.Laws 1973, ch. 142, 39--5--301 at 499). Lucero, in requesting and obtaining a preliminary hearing, was exercising a right that was not only guaranteed him by statute and our rule, but also one that has a constitutional foundation. Gerstein v. Pugh, ---U.S. ---, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

At the conclusion of the preliminary hearing, the district judge revoked bail on the basis of a finding of probable cause and ruled that the proof was evident and the presumption great. The trial judge also improperly found that Lucero committed the offenses charged in the information. See People v. District Court, Colo., 529 P.2d 1335 (1974).

The sole issue at the preliminary hearing is probable cause, and the trial court exceeded its jurisdiction in determining that Lucero committed the offenses and, without prior notice to Lucero that revocation of bail was in issue, in determining that the proof was evident and the presumption great, and revoked bail. See Snyder v. Guthner, 110 Colo. 35, 129 P.2d 672 (1942).

Article II, Section 19 of the Colorado Constitution provides:

'All persons shall be bailable by sufficient sureties except for capital offenses, when the proof is evident or the presumption great.'

See section 16--4--105, C.R.S.1973 (Colo.Sess.Laws 1972, ch. 44, 39--4--105, at 205--206), and Crim.P. 46(a). Our Colorado Constitution grants a defendant charged with a capital offense the right to bail unless the district attorney meets the burden of establishing at the bail hearing that the 'proof is evident or the presumption great.' People ex rel. Dunbar v. District Court, 179 Colo. 304, 500 P.2d 358 (1972); Palmer v. District Court, 156 Colo. 284, 398 P.2d 435, 11 A.L.R.3d 1380 (1965); Shanks v. District Court, 153 Colo. 332, 385 P.2d 990 (1963). If evidence of the proper nature and kind is not presented by the district attorney, 'it is incumbent upon the court, looking to the guidelines laid down in our new statute (section 16--4--105(1)(h)) and in the case of Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), to set reasonable bail in compliance with our Constitution and the Eighth Amendment of the Constitution of the United States.' People ex rel. Dunbar v. District Court, Supra. Accord, Orona v. District Court, Colo., 518 P.2d 839 (1974); In re Losasso, 15 Colo. 163, 24 P. 1080 (1890).

The mere filing of an...