dissenting:
I respectfully dissent and firmly disagree with the reversal of this defendant’s conviction.
The majority holds that the defendant was unconstitutionally prevented from taking the witness stand in his own defense because the trial court did not properly advise the defendant with regard to the impact of certain provisions of the habitual criminal statute, section 16-13-101 et seq., C.R.S.1973 (1978 Repl.Vol. 8). The majority reasons that the statute permits evidence of a defendant’s prior felony convictions to be elicited from him by the prosecution for impeachment purposes and to then be used to satisfy the People’s burden of proving the defendant’s prior felony convictions for purposes of the habitual criminal charges. The majority concludes that this creates an intolerable tension between a defendant’s twin rights to testify in his own defense and to have the prosecution prove beyond a reasonable doubt each element of the several charges against him. From my analysis of the habitual criminal statute, and particularly section 16-13-103, C.R.S.1973 (1978 Repl.Vol. 8), the majority misconceives the meaning and requirements of the statute.
Unless a defendant admits, either at arraignment or later, that he has been convicted, of the prior felonies, the prosecution must prove beyond a reasonable doubt that he has been so convicted as charged. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973); Vigil v. People, 196 Colo. 522, 587 P.2d 1196 (1978); O’Day v. People, 114 Colo. 373, 166 P.2d 789 (1946). At arraignment, a defendant must either admit or deny that he has previously been convicted of the crimes identified in the information or indictment.1 Section 16-13-103(3), C.R.S. 1973 (1978 Repl.Vol. 8). If the defendant admits the he has been convicted as alleged, no further proof thereof is required. Section 16-13-103(3). People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976). If the defendant denies that he has previously been convicted as alleged, the jury impaneled to try the substantive offense charged shall also by a separate verdict determine whether the defendant has been convicted as alleged. Section 16-13-103(4). It is only after the jury has determined that the defendant is guilty of the substantive offense that the jury shall “ * * * proceed to try the issues as to whether the defendant has been previously convicted as charged. The prosecuting attorney has the burden of proving beyond a reasonable doubt that the defendant has been convicted as charged.” Section 16-13-103(4)(b). See also Vigil v. People, supra.
If the defendant takes the witness stand in his own defense, he may be impeached by evidence of his prior felony convictions. Section 13-90-101, C.R.S.1973. If a defendant takes the stand and denies during the trial of the substantive offense that he has been convicted as alleged, the prosecution on rebuttal must then present all evidence relevant to the defendant’s prior felony convictions. Such evidence serves not only for impeachment purposes but also for sentence enhancement. Section 16-13-103(5). This section provides that “if the defendant is found guilty of the substantive offense” the jury will thereupon return verdicts on all issues relating to previous convictions.
The obvious import of this section is that, until the jury deliberates solely on the substantive offense and returns a verdict of guilty, it is not to be informed of the habitual criminal charges. Only after it returns this verdict on the substantive offense may the jury be instructed on the issues relating to the habitual criminal charges. To advise the jury in any way that habitual criminal charges are also pending before the trial has been completed and the jury has returned its verdict on the substantive offense would certainly constitute reversible error. Had this occurred in the present *1371case, the defendant’s conviction should be reversed. This did not occur.
The trial court correctly interpreted this section and ruled after the prosecution rested that whether or not this defendant took the stand he would be afforded a bifurcated proceeding. The defendant, nevertheless, did not choose to take the stand during the trial of the substantive charges.
If the defendant admits at arraignment that he has been convicted as alleged in any one or more of the counts charging previous convictions, then no further proof need be presented. Section 16-13-103(3). Implicit in this statutory scheme is the corollary that if the defendant admits on the witness stand that he has been previously convicted the prosecution is also relieved of introducing additional proof of the convictions. Vigil v. People, supra; Hackett v. Tinsley, 143 Colo. 203, 352 P.2d 799 (1960), cert. denied, 364 U.S. 874, 81 S.Ct. 118, 5 L.Ed.2d 96 (1960). See generally IX Wigmore, Evidence § 2588 et seq. (1940). The jury may consider such admissions when the habitual criminal issues are before it for determination. Of course, the prosecution is not precluded from presenting additional evidence in support of the habitual criminal conviction allegations.
It is important to note that the defendant attacked the constitutionality of that portion of the habitual criminal statute which he claims collapses the bifurcated trial into one proceeding if the defendant takes the witness stand during the first proceeding and his prior felony convictions—which are the basis for the habitual criminal charges—are exposed to the jury. Sections 16-13-103(1) and (5). The defendant asserts that the exposure of his prior felony convictions unduly prejudices a defendant with respect to the main charges and that this then creates an added unconstitutional chilling effect on his right to testify. Because of the statutory procedure which the court advised the defendant it would follow in this case had the defendant taken the stand, this argument has no merit. As stated previously, section 16-13-103(5) must be interpreted to require a bifurcated procedure. The potential prejudice to a defendant is not in any way increased beyond that resulting from the use of prior felony convictions for impeachment purposes. When a defendant takes the witness stand in his own defense, regardless of whether habitual criminal charges are pending, the People are free to question him with regard to his prior felony convictions for impeachment purposes. Section 13-90-101, C.R.S.1973. An appropriate cautionary instruction should always be given to the jury. Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). This procedure has been statutorily authorized and consistently upheld by this court in the face of numerous constitutional challenges over the years. E. g., People v. Layton, Colo., 612 P.2d 83 (1980).
The majority opinion in effect is advancing a new and novel rule of law that a judicial admission by a defendant that he has been previously convicted cannot be considered as proof of that fact by the jury before whom the issue is being tried; and that the prosecution must, in effect, reprove the fact already admitted. In my view, this requirement is without reason, logic, or judicial precedent, and serves no valid procedural purpose.
In sum, the defendant’s contention, that the application of the statute unconstitutionally burdened his right to testify, simply has no merit under the trial court’s ruling in this case, which was carefully formulated so as to protect the defendant from any fundamental unfairness, and was thoroughly explained to the defendant before he made his decision not to testify.
I would affirm the defendant’s conviction.
I am authorized to say that LEE and ROVIRA, JJ., join me in the dissent.
. If the defendant stands mute, it is treated as a denial. Section 16-13-103(3).