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People v. Nishikawa8/2/2001
Surety, David Frisco, appeals from the judgment of $25,000 entered against him on the forfeiture of the bail bond he posted for the release of defendant, Hiroatsu Nishikawa. We affirm.
The relevant facts are not in dispute. In November 1998, surety posted a $25,000 bail bond for defendant's release from custody on four felony drug charges. Because defendant was also charged under the special offender statute, he faced, if convicted, mandatory enhanced sentences of eight to forty-eight years incarceration. See § 18-18-407(1)(a), C.R.S. 2000 (special offender must be sentenced "to a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum years within the presumptive range for a class 2 felony"); § 18-1-105(1)(a) (V)(A), C.R.S. 2000 (eight years is the minimum term within the presumptive range for a class 2 felony; twenty-four years is the maximum term in the presumptive range for a class 2 felony).
In December 1998, the trial court granted the People's motion to amend the information by adding another count charging defendant with a class 4 felony of tampering with a witness or victim in the case in violation of § 18-8-707, C.R.S. 2000. Because this offense was allegedly committed while defendant was free on the bond previously posted, defendant faced an enhanced sentence of incarceration from two to twelve years if convicted on this charge under §§ 18-1-105(1)(a)(V)(A) and 18-1-105(9.5)(a), C.R.S. 2000.
The trial court required no new bond upon the filing of the additional charge, and defendant was allowed to remain free on the existing bond. No notice of any of these actions was provided to surety.
Subsequently, defendant failed to appear at trial, the trial court ordered forfeiture of the bond, and surety requested a hearing to show cause why judgment should not be entered on the forfeiture.
Surety thereafter filed a motion to vacate the bond forfeiture, seeking exoneration from any liability on the bond. Among other things, surety asserted, as he does here on appeal, that the trial court had materially increased his risk on the bond without his consent by allowing the filing of the additional felony charge in the same case while the original bond continued in effect. The trial court implicitly rejected surety's arguments and denied the motions as it instead entered a final judgment against him on the forfeiture. We also reject those arguments.
In furnishing a bond, a surety undertakes a calculated risk, and modifications in the conditions of the bail bond agreement by the trial court that materially increase that risk without the consent of the surety terminate the surety's obligation on the bond. People v. Jones, 873 P.2d 36, 37 (Colo. App. 1994); see People v. Tyler, 797 P.2d 22, 23 (Colo. 1990).
Here, under the terms of the bond agreement, surety agreed to guarantee defendant's court appearances to answer for the drug charges on which defendant had been arrested and was then in custody. By continuing this bond while allowing a new felony charge to be filed in the same case based on a subsequent offense, the trial court expanded surety's obligations beyond those explicitly assumed under the bond. The issue, however, is whether the trial court materially increased the surety's risk of non-appearance by defendant.
Surety concedes that the possibility that defendant would reoffend after his release on bond is one of the risks he contractually assumed in posting bond. See People v. Soto-Gallegos, 953 P.2d 946 (Colo. App. 1997). However, relying upon People v. Smith, 645 P.2d 864 (Colo. App. 1982), People v. Jones, supra, and § 16
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