concurring in part and dissenting in part.
I respectfully dissent as to Part II of the majority opinion which holds that the trial court’s advisement under People v. Curtis, 681 P.2d 504 (Colo.1984) was adequate to assure that defendant voluntarily waived his right to testify. Although I concur with the analysis of the other issues addressed in the majority opinion, I believe that a reversal and remand for a new trial are required because of the error in the advisement.
The trial court advised defendant that, if he testified, the prosecution would be permitted to ask him about any prior felony convictions, but that the jury would be “instructed to consider the felony conviction only as it bears on your character .... ” (emphasis added)
Curtis and its progeny require that a defendant be advised that the jury could consider a felony conviction only as it bears on the credibility of a defendant who testifies. See People v. Gray, 920 P.2d 787 (Colo.1996); People v. Milton, 864 P.2d 1097 (Colo.1993); People v. Chavez, 853 P.2d 1149 (Colo.1993).
While the supreme court has recognized, in People v. Gray, supra, and People v. Deskins, 927 P.2d 368 (Colo.1996), that a trial court’s omission of the word “only” from the advisement might not mandate a reversal, the court has continued to stress that the defendant must be advised that the jury’s consideration of felony convictions would be limited to the issue of credibility and not extend to the substantive issues in the case.
Here, at oral argument, the People conceded that evidence of defendant’s prior felony convictions would not have been admissible to prove his “character”. Indeed, CRE 404(b) expressly provides that: “Evidence of other crimes ... is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” See also People v. Spoto, 795 P.2d 1314 (Colo.1990).
While an accused who testifies subjects himself to an attack on his credibility, he does not thereby place his general character in issue. See People v. Tippett, 733 P.2d 1183 (Colo.1987).
In both Chavez, supra, and Milton, supra, the court reversed convictions because the defendants had not been informed that jury consideration of their prior felony convictions would be limited to the issue of credibility.
The Gray court, in distinguishing the facts there from those in Chavez, stressed that, unlike in Chavez, the trial court “did not mislead defendant” with respect to the advisement it gave him concerning use of the evidence of felony convictions for purposes of impeachment of his credibility.
Here, in contrast, although the court’s erroneous use of the word “character” rather than “credibility” may have been inadvertent, the fact remains that the court’s advisement did mislead defendant. It mistakenly conveyed the impression that if he testified his felony convictions could be considered by the jury as bearing on his character and, hence, his propensity to act in conformity with such character. Because it thus suggested that the felony convictions could be used for substantive purposes, and not merely for credibility assessment purposes, the advisement was both improper and misleading.
*34Under these circumstances, I cannot agree with the majority’s conclusion that the advisement was adequate to assure that defendant “knowingly, voluntarily, and intentionally waived his right to testify.”
Finally, I would reject the People’s contention that, because the record discloses that defendant discussed his right to testify with counsel before electing hot to take the stand, reversal would not be required in any event. Even if it were assumed that defendant’s counsel advised him correctly as to the limited purpose for which the jury could consider his felony convictions — an assumption which lacks record support — because of the misleading nature of the court’s advisement, there existed, at a minimum, a likelihood of confusion on the part of defendant. In my view, that likelihood undercuts any finding that defendant’s waiver of his right to testify was voluntary.
Accordingly, I would remand the cause for a new trial.