People v. Chavez

Judge ROTHENBERG

dissenting.

I respectfully dissent.

In my opinion, the trial court’s Curtis advisement, while not extensive, nevertheless satisfied the minimum requirements necessary to establish a valid waiver of the defendant’s right to testify. See Roelker v. People, 804 P.2d 1336 (Colo.1991); People v. Ball, 813 P.2d 759 (Colo.App.1990).

In People v. Ball, supra, the defendant contended that he should have been given advisements, pursuant to People v. Chavez, 621 P.2d 1362 (Colo.1980), that admissions of his prior convictions elicited during the substantive phase of his trial could bear only on credibility and could not be used as evidence during the habitual criminal phase. This court rejected the argument and noted that Chavez did not address ad-visements to be given to defendants. Rather, Chavez considered the instructions which are given to the jury if the defendant testifies.

And, although the defendant in Ball was given an additional statement telling him that if he testified and was cross-examined as to prior felonies, the jury would be in*1031structed to consider the convictions only as to his credibility, I do not agree that the absence of that statement here necessitates a different result.

I also question the continued vitality of People v. Tafoya, 654 P.2d 1342 (Colo.App.1982), upon which the defendant heavily relies. This court held that Tafoya was entitled to receive advance notice as to the limited use of his prior convictions. However, Tafoya was tried and convicted before our supreme court announced its decision in People v. Chavez, supra, and, unlike the situation facing the defendant here, Tafoya’s admission of prior convictions during the substantive phase of his trial could have been used against him as evidence in the habitual offender phase. Thus, the error in advisements severely prejudiced him. I perceive no similar prejudice here. People v. Chavez, supra.

Since I also find defendant’s other contentions to be without merit, I would affirm the judgment.