People v. Rodriguez-Nunez

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 4, 2026

2026 COA 48

No. 25CA2183, People v. Rodriguez-Nunez — Crimes — Murder
in the First Degree; Criminal Law — Release on Bail — Setting
and Selection of Type of Bond — Types of Bond Set by Court;
Constitutional Law — Colorado Constitution — Right to Bail —
Proof Evident Exception

A division of the court of appeals considers whether the

district court’s imposition of a cash bond that amounted to a de

facto no-bond hold violated the right to bail for a defendant charged

with first degree murder after deliberation. The division concludes

that the proof evident exception to the right to bail did not apply to

the defendant because he was charged with committing the offense

in 2021, which was after the abolition of the death penalty in 2020

eliminated the proof evident exception under People v. Smith, 2023

CO 40, but before the voters restored the exception for first degree

murder by constitutional amendment in 2024.
Accordingly, the division grants the petition for review and

remands the matter for further hearing.
COLORADO COURT OF APPEALS 2026 COA 48

Court of Appeals No. 25CA2183
Weld County District Court No. 25CR960
Honorable Annette Kundelius, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Moises Rodriguez-Nunez,

Defendant-Appellant.

PETITION GRANTED AND CASE
REMANDED WITH DIRECTIONS

Division A
Opinion by JUDGE KUHN
Grove and Yun, JJ., concur

Announced June 4, 2026

Michael J. Rourke, District Attorney, Ash McCuaig, Deputy District Attorney,
Blake Madone, Deputy District Attorney, Greeley, Colorado, for Plaintiff-
Appellee

Daniel King, Alternate Defense Counsel, Arvada, Colorado; Andrew Sidley-
MacKie, Alternate Defense Counsel, Fort Collins, Colorado, for Defendant-
Appellant
¶1 Defendant, Moises Rodriguez-Nunez, was indicted on one

count of first degree murder after deliberation for a homicide

committed in 2021.1 See § 18-3-102(1)(a), C.R.S. 2025. Following

Rodriguez-Nunez’s arrest, the trial court set bond. But the court

made its bond determination during a period of flux surrounding

Colorado’s constitutional right to bail.

¶2 Though the Colorado Constitution generally guarantees an

absolute right to bail for people accused of committing crimes until

the disposition of charges against them, it also contains an

exception for “capital offenses” when proof is evident or the

presumption is great that the accused committed the crime. Colo.

Const. art. II, § 19(1). In 2020, the General Assembly abolished the

death penalty, taking the proof evident exception with it. In 2024,

voters amended the constitution to restore the proof evident

exception for first degree murder charges.

1 Rodriguez-Nunez was sixteen years old at the time of the alleged

offense. The prosecution charged him as an adult by filing in the
district court the grand jury indictment and a notice of direct filing
under section 19-2.5-801(1)(a), C.R.S. 2025.

1
¶3 In the interim, Rodriguez-Nunez unsuccessfully moved to

modify his bond. He now petitions under section 16-4-204(1),

C.R.S. 2025, for review of the district court’s order denying his

request for bond modification. We hold that the proof evident

exception does not apply to a defendant accused of first degree

murder for a homicide charged after the death penalty was

abolished but committed before the proof evident exception was

restored. Such a defendant is entitled to bail on terms set by the

district court. Accordingly, we grant the petition and remand the

matter for further hearing.

I. Background

¶4 Because the period of flux surrounding the right to bail frames

this appeal, we briefly summarize the key developments in case law

during the last several years.

¶5 Article II, section 19 of the Colorado Constitution confers an

absolute right to bail for most criminal defendants, pending

resolution of the charges against them. People v. Blagg, 2015 CO 2,

¶ 12; Yording v. Walker, 683 P.2d 788, 791 (Colo. 1984). However,

this right doesn’t apply to those defendants charged with a capital

offense when proof is evident or the presumption is great that the

2
accused committed the charged crime. Colo. Const. art. II,

§ 19(1)(a); Blagg, ¶ 12.

¶6 This proof evident exception for capital offenses was

eliminated when the General Assembly repealed the death penalty

for offenses charged on or after July 1, 2020. § 16-11-901, C.R.S.

2025; see Ch. 61, sec. 1, § 16-11-901, 2020 Colo. Sess. Laws 204.

Following that repeal, the Colorado Supreme Court in People v.

Smith determined that the phrase “capital offenses” means offenses

punishable by the death penalty. 2023 CO 40, ¶ 31. Under Smith,

all criminal defendants, even those charged with first degree

murder, had the right to bail for offenses charged on or after July 1,

2020. Id. at ¶¶ 32, 45.

¶7 The General Assembly responded to Smith by referring to

voters what would become Amendment I. See H. Con. Res.

24-1002, 74th Gen. Assemb., 2d Reg. Sess., 2024 Colo. Sess. Laws

4362 (effective upon proclamation by the Governor, Dec. 17, 2024).

This constitutional amendment, which voters approved, restored

the proof evident exception to the right to bail for persons accused

of “the offense of murder in the first degree.” Id.; Colo. Const. art.

II, § 19(1)(d). The amendment applies only to offenses “committed

3
on or after [the amendment’s] effective date” of December 17, 2024.

H. Con. Res. No. 24-1002; Colo. Exec. Order No. D 2024 020 (Dec.

17, 2024). Consequently, a person charged with first degree

murder after the death penalty’s repeal on July 1, 2020, but who

committed the offense before Amendment I took effect on December

17, 2024, retains the right to bail.

¶8 Here, Rodriguez-Nunez is accused of an offense that he

allegedly committed in Greeley in 2021. The district court initially

set a $5 million cash bond. Defense counsel applied for a reduction

in the bond amount and a change to the bond type. However,

based on the indictment, the facts of the case, and the presumed

intent of Amendment I, the district court denied the request.

II. Analysis

¶9 Rodriguez-Nunez contends that the district court abused its

discretion by refusing to modify his bond. He claims that the court

improperly (1) relied on legislative intent in contradiction to Smith;

(2) violated his constitutional rights by setting a bond that de facto

denied his right to bail; and (3) failed to make sufficient factual

findings to support the selected bond amount and type. Rodriguez-

Nunez further contends that we should hold that the prosecution

4
must provide “clear and convincing evidence that an unattainable

monetary bond condition is necessary to reasonably assure

appearance or public safety.”

A. Standard of Review

¶ 10 Under section 16-4-204(1), a defendant may seek appellate

review of, among other things, a bond modification order. See

§ 16-4-109, C.R.S. 2025. We review bail bond determinations for

an abuse of discretion. Smith, ¶ 18. “A [district] court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair, or when it misapplies the law.” Id. (quoting People v.

Johnson, 2021 CO 35, ¶ 16).

¶ 11 “We review issues of statutory or constitutional interpretation

de novo.” People v. Lewis, 2024 CO 57, ¶ 10. “In construing a

statute, our fundamental responsibility is to ascertain and give

effect to the General Assembly’s intent.” Id. “In so doing, we look to

the plain and ordinary meaning of the statutory language, and we

construe the statute to further the legislative intent represented by

the statutory scheme.” Id. (quoting People v. Steen, 2014 CO 9,

¶ 9); see also Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo. 2004)

(“Courts must give words their ordinary and popular meaning in

5
order to ascertain what the voters believed the amendment to mean

when they adopted it.”). “If the statutory language is unambiguous,

we apply it as written.” People v. Day, 2026 CO 16, ¶ 23.

B. Applicable Statutory Law

¶ 12 A district court must determine a bond’s type, its conditions,

and any modifications or reductions according to the requirements

of section 16-4-103, C.R.S. 2025. Under this statute, a court’s

bond determination must be “sufficient to reasonably ensure the

appearance of the person as required and to protect the safety of

any person or the community, taking into consideration the

individual characteristics of each person in custody, including the

person’s financial condition.” § 16-4-103(3)(a). Further, a court

must “[p]resume that all persons in custody are eligible for release

on bond with the appropriate and least-restrictive conditions.”

§ 16-4-103(4)(a). When making this determination, a court may

consider certain criteria specified by the statute, which include (in

relevant part) an accused person’s employment status and history,

family relationships, past and present residences, likely sentence

considering the nature of the charged offense, and indications of

strong community ties and likelihood to flee. § 16-4-103(5).

6
¶ 13 Section 16-4-104, C.R.S. 2025, provides the types of bond a

court may select, and a court may set a bond secured with

monetary conditions “when reasonable and necessary to ensure the

appearance of the person in court or the safety of any person or

persons or the community.” § 16-4-104(1)(c); see also

§ 16-4-103(4)(a) (“A monetary condition of release must be

reasonable . . . .”). An accused person may choose to post a

monetary bond using a cash deposit, real estate equity, surety, or

bail bonding agent. § 16-4-104(1)(c)(I)-(IV). However, a court may

require a certain method for executing a monetary bond if the court

“makes factual findings on the record” that the method “is

necessary to ensure the appearance of the person in court or the

safety of any person, persons, or the community.” § 16-4-104(1)(c).

C. Additional Facts

¶ 14 In July 2025, the district court initially set a $5 million cash

bond without hearing arguments from either party, and it

7
scheduled a bond modification hearing for September 2025.2 At

that hearing, defense counsel requested that the court significantly

reduce the bond amount and allow the use of alternatives to cash

for posting bond. Counsel argued that a $5 million cash bond was

prohibitive to anyone, effectively functioning as a no-bond hold.

Counsel also asserted that a bond reduction was justified by

Rodriguez-Nunez’s circumstances and ties to the community, which

were alleged as the following:

• Rodriguez-Nunez, twenty years old as of the hearing, had

resided in Greeley his entire life;

• his family was in Greeley;

• he was married and had a daughter, whom he helped care

for;

• he was employed with two jobs;

2 At the initial hearing, defense counsel informed the district court

that he was not prepared to present a full argument on bond. He
asked the court to schedule a bond modification hearing, giving
counsel an opportunity to prepare arguments. Counsel otherwise
deferred to the court regarding the setting of the initial bond type
and amount. Rodriguez-Nunez’s petition does not contest the
district court’s initial bond determination; therefore, we address
only the court’s denial of Rodriguez-Nunez’s bond modification
request. See § 16-4-109, C.R.S. 2025.

8
• he didn’t have significant financial resources;

• he was attending school; and

• he had remained in Greeley since the victim’s death and

during the investigation into that death.

Based on these representations, defense counsel argued, “There’s

no indication that [Rodriguez-Nunez is] a danger to himself or a

danger to the community if he’s released on bond. There’s every

indication that he will appear in court as directed.”

¶ 15 The prosecutor claimed that Amendment I showed that the

General Assembly intended for the courts to set no-bond holds for

persons accused of committing first degree murder — even though

the amendment only operated prospectively. The prosecutor also

claimed to have reviewed bond rulings in sixty-two cases involving

first degree murder. This review purportedly revealed that courts in

those cases had determined that cash bonds for millions of dollars

were appropriate. Of those cases, the prosecutor cited four specific

case numbers, claiming that they involved defendants around the

same age as Rodriguez-Nunez and that those cases involved cash

bonds set at either $2 million or $5 million. The prosecutor thus

9
asserted that a cash bond of $5 million was appropriate here given

“the seriousness of the offense” and “the danger to the community.”

¶ 16 Ultimately, in its ruling, the district court said, “[G]iven the

information that I have in the indictment . . . the only reason that I

would consider any modification is because of the defendant’s age

at the time.” The court referenced “the recent changes in

legislati[on]” and reasoned that “if this was committed at a slightly

different time, [Rodriguez-Nunez would] be held without bond.” The

court concluded,

I think it’s clear that that’s the legislative
intent and so I think that bond is appropriate
as set. I understand it’s effectively a no-bond
hold. I get that. And that’s going to be the
decision of the [c]ourt today. So I’m going to
deny that request. Bond will remain as set.

D. The District Court’s Bond Determination
Was an Abuse of Discretion

¶ 17 Rodriguez-Nunez contends that the district court erred by

relying on legislative history and imposing an excessive bond that

functioned as a de facto no-bond hold. He also contends that the

court failed to make sufficient determinations and factual findings

to establish that a $5 million cash bond was necessary and

10
reasonable to ensure his court appearances or to protect the

community. We agree.

¶ 18 First, the court erred by relying on the intent of the General

Assembly — and ultimately the voters — to justify “effectively a no-

bond hold.” This approach misapplied the law because the court

based its decision on an intent that is contrary to the amendment’s

plain language. Moreover, the court relied on suppositions about

what would have happened if Rodriguez-Nunez had been charged as

a juvenile or if he had been charged with a crime that was

committed at a different time. Neither of these suppositions is a

proper statutory factor for determining bond.

¶ 19 The court erred by assuming that the intent of Amendment I

was to prohibit bail for first degree murders committed before the

amendment was effective. The amendment unambiguously states

that the denial of bail applies only to first degree murders

“committed on or after the effective date” — December 17, 2024.

Colo. Const. art. II, § 19(1)(d) (emphasis added). Therefore, the

intent of voters, according to the plain language of Amendment I,

couldn’t have been that people accused of committing first degree

murder before December 17, 2024, would lose their right to bail.

11
Accordingly, we conclude that a defendant accused of first degree

murder for a homicide charged after the death penalty was

abolished but committed before Amendment I took effect is entitled

to bail.

¶ 20 As a result, the district court erred by explicitly setting a cash

bond whose amount was so high that it functioned as a bond

denial. In other words, the court effectively applied the proof

evident exception to Rodriguez-Nunez’s case, misapprehended the

intent of section 19, and violated both his constitutional right to

bail and the statutory presumption in favor of bail. See id.;

§ 16-4-103(4)(a); § 16-4-104(1)(c); see also Altobella v. Dist. Ct., 385

P.2d 663, 664 (Colo. 1963) (holding “that the bond fixed by the

court was grossly excessive and tantamount to a denial of the right

of petitioner to be admitted to bail in a reasonable amount”); State

v. Brown, 2014-NMSC-038, ¶ 53, 338 P.3d 1276, 1292

12
(“Intentionally setting bail so high as to be unattainable is simply

a[n] [improper] method of unlawfully denying bail altogether.”).3

¶ 21 Second, the court didn’t consider whether the type of bond

selected would reasonably ensure Rodriguez-Nunez’s appearance in

court or protect the community. See § 16-4-103(3)(a). The court

merely referenced the “information that [it] ha[d] in the

indictment . . . [and] all of the other information in the case.” Such

references don’t show consideration of Rodriguez-Nunez’s individual

characteristics or financial condition. See § 16-4-103(3)(a); Stack v.

Boyle, 342 U.S. 1, 6 (1951) (Vinson, J., in chambers) (“To infer from

the fact of indictment alone a need for bail in an unusually high

amount is an arbitrary act.”); see also Brown, ¶ 52, 338 P.3d at

1292 (holding that a court is not permitted to “put a price tag on a

person’s pretrial liberty based solely on the charged offense”). The

only exception was the court’s reference to Rodriguez-Nunez’s age

at the time of the alleged offense, but this reference failed to explain

3 State v. Brown, 2014-NMSC-038, 338 P.3d 1276, involved a

constitutional provision that mirrors Article II, section 19 of
Colorado’s constitution and circumstances similar to those here.
Although not precedential, we find Brown’s historical analysis on
bail illustrative and its well-reasoned opinion persuasive.

13
how age factored into ensuring his court appearances and

community safety.4 See § 16-4-103(3)(a); see also Palmer v. Dist.

Ct., 398 P.2d 435, 438 (Colo. 1965) (“Bail should not be ‘more than

will be reasonably sufficient to prevent evasion of the law by flight

or concealment’; it should be ‘reasonably sufficient to secure the

prisoner’s presence at the trial.’” (quoting In re Losasso, 24 P. 1080,

1081-82 (Colo. 1890))).

¶ 22 Third, the court didn’t make factual findings to support its

selection of a certain type of monetary bond. See § 16-4-104(1)(a).

Without findings, we cannot determine how the court’s cash bond

decision was “tailored to address a specific concern,”

§ 16-4-103(4)(a), or “reasonable and necessary” to ensure

Rodriguez-Nunez’s appearance and community safety,

§ 16-4-104(1)(c). Indeed, the record demonstrates that the district

court refused the modification request without making meaningful

findings regarding the relevant statutory factors.

4 Age isn’t one of the enumerated criteria for the court’s

consideration in determining a bond. See § 16-4-103(5)(a)-(j),
C.R.S. 2025.

14
¶ 23 Defense counsel represented that Rodriguez-Nunez had

significant ties to the community through his residence, family,

marriage, work, and school. Furthermore, a pretrial services bail

report indicated that Rodriguez-Nunez fell within the lowest

category of measurable risk for nonappearance or continuing

threat. See § 16-4-103(3)(b) (“In determining the type of bond and

conditions of release, . . . the court shall use an empirically

developed risk assessment instrument designed to improve pretrial

release decisions . . . based upon predicted level of risk of pretrial

failure.”); see also People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004)

(holding that we can “take judicial notice of the contents of court

records in a related proceeding”).

¶ 24 By contrast, the prosecutor’s arguments didn’t adequately

justify the bond imposed. The prosecutor largely relied on

15
comparisons to other cases.5 Although such comparisons aren’t

necessarily inappropriate in a bond hearing, the case comparisons

provided little support for maintaining the bond because (1) only

four of the sixty-two cases mentioned were identified by case

number; (2) the four identified cases lacked comparative details

beyond generalizations about similar offenses with similarly aged

defendants; (3) the prosecutor didn’t submit any written record of

the cases; and (4) the court didn’t take judicial notice of the cases

or their facts.

¶ 25 Besides, these comparisons improperly implied that the charge

of first degree murder alone justified setting a multi-million dollar

cash bond. In other words, the prosecutor’s claims didn’t

demonstrate how the monetary condition of a cash bond was

5 The prosecutor also summarily referred to grand jury materials,

claiming that a $5 million cash bond was appropriate because it
“takes into account the danger to the community” shown by the
grand jury testimony that “raise[d] substantial and significant
community safety concerns” and a “prolific drug distribution
enterprise.” However, the parties agree that the district court didn’t
review or consider any information, other than the indictment,
related to the grand jury. Accordingly, the grand jury materials do
not factor into our determination.

16
tailored to address specific concerns about Rodriguez-Nunez.6 See

§ 16-4-103(4)(a); see also Brown ¶ 52; 338 P.3d at 1292 (“[J]udges

‘should exercise care not to give inordinate weight to the nature of

the present charge in evaluating factors for the pretrial release

decision.’” (quoting ABA Standards for Criminal Justice: Pretrial

Release § 10-1.7 (3d ed. 2007))).

¶ 26 In sum, the district court (1) misapplied the law by incorrectly

assuming the intent of a prospective constitutional amendment

contrary to its plain language; (2) set the bond amount arbitrarily

based on that intent; and (3) failed to make necessary factual

findings supported by the record. See Smith, ¶ 18; see also People

v. Jones, 489 P.2d 596, 598 (Colo. 1971) (“Protection of the accused

has been provided by rule and judicial mandates that require that a

court, in all instances, obtain facts which will provide a sound basis

for an intelligent and fair bail decision.”). Because the basis of the

district court’s bond order is flawed and the record doesn’t disclose

6 We take no position on whether certain comparisons to other

cases may be relevant for a bond determination depending on the
other cases’ level of detail, evidence presented, or judicial notice.

17
sufficient findings supporting the order, we must remand this

matter for the court to hold a further hearing. See § 16-4-204(3)(a).

E. Monetary Bonds Have No
Unattainability Requirements

¶ 27 Rodriguez-Nunez also contends that we should hold that the

district court’s determination for a monetary bond must include

considerations of attainability. He asserts that setting an

unattainable monetary bond condition amounts to a deprivation of

liberty, and thus, the prosecution should be required to provide

clear and convincing evidence showing that the unattainability

condition is necessary to reasonably ensure appearances or protect

community safety. We aren’t persuaded because the statutes don’t

impose such requirements.

¶ 28 Of course, the point of a bail bond is not to enrich the state’s

treasury but to ensure the defendant’s appearance in court. W.

Sur. Co. v. People, 208 P.2d 1164, 1166 (Colo. 1949). And where a

court fails to tailor an unattainable monetary bond condition (or

any other bond condition) to ensure an accused person’s

appearance and protect the community, the bond condition denies

the accused their right to bail in violation of the constitution and

18
bail statutes. See Bandy v. United States, 81 S. Ct. 197, 198 (1960)

(Douglas, J., in chambers) (“It would be unconstitutional to fix

excessive bail to assure that a defendant will not gain his

freedom.”); see also Brown, ¶ 54, 338 P.3d at 1293 (“Admission to

bail always involves a risk that the accused will take flight. That is

a calculated risk which the law takes as the price of our system of[

]justice.” (quoting Stack, 342 U.S. at 8 (Jackson, J., specially

concurring))).

¶ 29 But we see nothing in the constitution or bail statutes that

categorically precludes unattainable monetary bond conditions.

See Jones, 489 P.2d at 599 (“The right to bail does not amount to a

guarantee that every defendant who is charged with a crime will be

released without bail if he is indigent.”). Rather, a court may set

monetary conditions — whether unattainable or attainable — so

long as the court makes factual findings showing that the

conditions selected are reasonable and necessary under the

circumstances. § 16-4-104(1)(c); see § 16-4-103(4)(a). Specifically,

the factual findings are sufficient if they show that the monetary

amount is tailored to ensure the accused’s appearance in court and

prevent harm to the community. See § 16-4-104(1)(c); cf. People v.

19
Fallis, 2015 COA 75, ¶¶ 7-8 (holding that a bond condition is

reasonable because it was “narrowly tailored to address the[]

legitimate state interest[]” of ensuring a defendant’s appearance).

Rodriguez-Nunez’s contention amounts to a request for us to read

into the statutory scheme unattainability conditions that don’t exist

in the statute’s plain language, which we decline to do. See Day,

¶ 23.

III. Disposition

¶ 30 The petition is granted, and the case is remanded for further

hearing consistent with this opinion. See § 16-4-204(3)(a). The

district court must consider the appropriate bail factors and make

findings to support its bail ruling under section 16-4-104(1)(c). The

court may consider the use of nonmonetary conditions as less

restrictive options for vindicating community safety concerns. See

§ 16-4-103(4)(a); § 16-4-105(8), C.R.S. 2025; Brown, ¶ 42, 338 P.3d

at 1290.

JUDGE GROVE and JUDGE YUN concur.

20