dissenting.
I join in the dissent of HODGES, C. J.
In my view, no valid reason has been advanced why the conviction in this case should be overturned.
Preliminarily, it should be noted that the defendant’s guilt was overwhelmingly es*1372tablished. The defendant was observed by five officers breaking and entering into the house which he was accused of burglarizing. He was captured as he left by the rear door, attempting to avoid capture by the arresting officers. The conviction should not be reversed unless substantial prejudicial error occurred in the trial. None has been demonstrated in my view.
I concur in the Chief Justice’s exposition of the procedural requirements under the habitual criminal statute. The trial judge’s ruling, in my view, conformed with such requirements. The record of the colloquy between defendant, his counsel, and the court clearly indicates that the court’s ruling fully protected the defendant’s right to a fair trial on the substantive offense. There is nothing in the record to indicate that the trial jury had any knowledge whatsoever of the pending habitual criminal charges. It is apparent that throughout the prosecution’s case no mention had been made to the jury of those charges or of the defendant’s prior criminal record.
At the conclusion of the prosecution’s evidence, the court advised the defendant that it would bifurcate the trial of the habitual criminal charges from the trial of the substantive offense. It further advised the defendant that if he took the stand to testify in his own behalf evidence of the prior convictions would be admissible for the purposes of impeachment only during the substantive trial. This conformed to defense counsel’s understanding as to the procedural requirements. The record shows that, after so being advised by the court, the defendant consulted with his counsel. Thereafter, he indicated to the court that he understood the consequences of testifying and being cross-examined concerning his prior convictions. He then elected not to testify in his own defense.
An important consideration is the concept that the Habitual Criminal Act does not create a substantive crime. Casias v. People, 148 Colo. 544, 367 P.2d 327 (1961), cert. denied, 369 U.S. 862, 82 S.Ct. 952, 8 L.Ed.2d 20 (1963); Wright v. People, 116 Colo. 306, 181 P.2d 447 (1947). The Act only prescribes circumstances where one found guilty of a specific substantive offense shall be more severely penalized if he has been previously convicted of crimes. As a sentence enhancement statute, the process concerns only the historical fact of the defendant’s previous convictions.
The burden of proving that fact beyond a reasonable doubt is upon the prosecution. Section 16-13-103(4)(b), C.R.S.1973 (1978 Repl.Vol. 8). This may be established by testimony, documentary evidence, section 16-13-102, or by a judicial admission, either at arraignment or in testimony, section 16-13-103(3), (4), and (5).
The significant underlying consideration in pursuing the determination of habitual criminality is the formulation of a procedure which guards against the jury trying the substantive offense from being improperly exposed to the knowledge of the existence of the habitual counts or of evidence of the prior convictions before that jury has determined the issue of the defendant’s guilt of the substantive offense. Fundamental fairness and due process mandate that a defendant only be convicted on evidence relevant to the offense of which he is accused and being tried. Evidence of prior convictions is not relevant to prove guilt except in very limited circumstances. People v. Honey, Colo., 596 P.2d 751 (1979); Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).
In the present case, the procedures which the court ruled it would follow afforded the defendant the protection that he could only be convicted of the substantive offense upon evidence properly admitted. Of course, if the defendant elected to testify, the impeachment evidence based on his prior convictions—the same evidence which formed the basis of the habitual counts— could properly be admitted. Section 13-90-101, C.R.S.1973.
Initially, the defendant must elect whether he will subject himself on cross-examination to exposure of his prior criminal convictions by testifying in his own behalf at his trial on the substantive offense. This hard decision is created by his own prior criminal *1373conduct since under the long-established rule of evidence prior criminal convictions are held to bear upon the credibility of the witness. If he elects to testify and admit those facts, simply because they bear only upon his credibility in no way diminishes their character as judicial admissions of the historic fact of prior convictions. Because the court here ruled that the guilt trial should be totally separated from the habitual criminal proceedings, and since the use of the judicial admissions would not occur until after a jury verdict of guilty at the trial of the substantive offense, the use of the judicial admissions in aid of proof of the habitual counts could in no way offend due process or the fundamental fairness required at trial. Such judicial admissions are no less competent to prove the facts admitted than are admissions of the habitual counts at arraignment, or if obtained in any other separate judicial proceeding.
In my view, the ban of the use of the habitual proceeding of impeachment evidence of prior convictions admitted by a defendant while testifying as a witness in his own behalf does not afford a defendant any additional protection against unjustly being convicted on inadmissible evidence at the substantive trial.
The majority has applied the rationale of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) to reach the conclusion that the trial court erred in ruling that, if the defendant elected to testify at the guilt trial, any admissions resulting from cross-examination as to prior convictions would be admissible as evidence at the habitual criminal proceeding to establish the fact of the prior convictions. The majority has concluded that, if such evidence were admissible to prove the historical fact of prior convictions, an “intolerable tension” between two constitutional rights would be created, resulting in a forced waiver of one of those rights: either the defendant must give up his constitutional right to testify, or give up his right to have the prosecution prove beyond a reasonable doubt that the defendant had previously been convicted as alleged in the habitual criminal counts.
In my view, the “intolerable tension” doctrine of Simmons has no application to this case. In Simmons the tension created related to two constitutional rights involved at a critical state of the substantive case. We do not have that situation here. Our concern is with the use of evidence lawfully admitted in the guilt trial for impeachment purposes, which also proves the historical fact of prior convictions at the sentence enhancement proceedings.
The assertion that the burden of proving beyond a reasonable doubt the fact of prior convictions at a sentence enhancement proceeding is a constitutional right is in my view a faulty concept. Sentence enhancement proceedings were unknown at common law and are of statutory origin. Smalley v. People, 116 Colo. 598, 183 P.2d 558 (1947). The statute does not create a new or independent crime but merely provides that in sentencing a defendant after conviction the court must consider former convictions and impose a more severe sentence. Casias v. People, supra. Since the sentence enhancement proceedings are of a statutory origin, the General Assembly could have established a lesser burden of proof upon the prosecution had it chosen to do so. This is borne out by the decision in United States v. Inendino, 463 F.Supp. 252 (N.D.Ill.1978), aff’d 604 F.2d 458 (7th Cir. 1979), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979).
In Inendino the court was concerned with the constitutional validity of 18 U.S.C. § 3575, the “dangerous special offender” statute, a sentence enhancement statute. The attack on the statute related to the constitutional validity of the burden of proof standard prescribed by Congress, that of “preponderance of the information.” The court upheld that standard in face of the constitutional attack. The court noted that the United States Supreme Court has drawn a fine line between pre-conviction and post-conviction proceedings, and has approved post-conviction proceedings which provide less than the full panoply of trial rights. See generally Williams v. New *1374York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); United States v. Stewart, 531 F.2d 326 (6th Cir. 1976). In commenting on the due process rights in such proceedings, the Court stated:
“However, in recognition of the fact that these procedures may result in a substantial deprivation of liberty, the Court has held that the defendant is entitled to representation of counsel, Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), and to notice and opportunity to be heard, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Although the exact dimensions of these rights have not been fully articulated, courts have held that they do not include the right to trial by jury, see Turnbough v. Wyrick, 551 F.2d 202 (8th Cir. 1977); James v. Twomey, 466 F.2d 718 (7th Cir. 1972), nor the right to grand jury indictment, United States v. Baca, 451 F.2d 1112 (10th Cir. 1971); see also Beland v. United States, 128 F.2d 795 (5th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543, reh’g denied 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 (1942).” United States v. Inendino, supra.
In affirming the district court, the United States Court of Appeals for the Seventh Circuit stated:
“The defendant contends that Section 3575 is constitutionally infirm because the statute authorizes findings of fact ‘by [the] preponderance of the information,’ rather than by the constitutionally mandated standard of beyond a reasonable doubt. This section, however, does not create a separate criminal charge but instead provides for the enhancement of the penalty for the defendant’s criminal conviction. Also, the courts of appeals have uniformly found that the proof of dangerousness by a preponderance of the information is constitutional. United States v. Williamson, 567 F.2d 610 (4th Cir. 1977); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). See generally United States v. Neary, 552 F.2d 1184 (7th Cir.), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977).” (Emphasis added.) United States v. Inendino, 604 F.2d 458 (7th Cir. 1979), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979).
The treatment of the federal sentence enhancement statute, 18 U.S.C. § 3575,1 by the federal courts clearly demonstrates that the constitutional right of a defendant to have the prosecution prove the elements of a crime beyond a reasonable doubt does not apply to post-conviction proceedings such as sentence enhancement hearings. Thus, it is clear that the standard of proof at the post-conviction sentence enhancement proceeding is statutory and does not rise to the constitutional level attributed to it by the majority opinion. For this reason, I do not believe that the procedure set down by the trial court in this case creates an “intolerable tension” between two constitutional rights, and the Simmons rationale is misapplied to the posture of the present case.
The purported burden—the chill—if any, on the defendant’s constitutional right to *1375testify did not, in my opinion, arise from any ruling of the trial court in formulating the guidelines for proceeding under the habitual criminal statute or from the announced procedures to be followed, but rather was the result of defendant’s own predicament arising from his past lawless conduct, a consequence which every citizen who chooses to engage in such activity ought to anticipate.
The procedures formulated by the trial court conformed to the requirements of due process. The defendant was afforded a separate hearing on the habitual criminal charges with the burden of proof beyond a reasonable doubt placed upon the prosecu-' tion. He could be present with counsel, have the opportunity to be heard, to confront the witnesses against him, to cross-examine them, to offer evidence in his own behalf, and to have the findings of the prior convictions made by a jury. This procedure clearly afforded the defendant more protection than the mínimums required by Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).
The conviction should be affirmed.
I am authorized to say that HODGES, C. J., and ROVIRA, J., join in this dissenting opinion.
. It is interesting to note that the federal statute provides that the burden of proof for enhancement purposes by the preponderance of the information may include information gained at trial on the substantive offense. 18 U.S.C. § 3575(b) provides:
“ * * * In connection with the hearing, the defendant and the United States shall be entitled to assistance of counsel, compulsory process, and cross-examination of such witnesses as appear at the hearing. A duly authenticated copy of a former judgment or commitment shall be prima facie evidence of such former judgment or commitment. If it appears by a preponderance of the information, including information submitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender, the court shall sentence the defendant to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony. Otherwise it shall sentence the defendant in accordance with the law prescribing penalties for such felony. * * *” (Emphasis added.)