[1015]*1015Opinion
WOODS (Fred), J.
We are asked to decide this novel question: if a defendant’s lawyer delivers inculpatory writings to the trial court, under seal, may the trial court furnish those writings to the prosecutor without violating either the defendant’s privilege against self-incrimination or the reciprocal discovery statutes (Pen. Code,1 §§ 1054-1054.7)? Our answer is yes. We affirm the first degree murder judgment.
Procedural and Factual Background
By information, Arthur Anthony Sanchez (appellant) was charged with the March 28, 1992, murder of Rufugia Limón Huerta. It was alleged he personally used a deadly weapon, a rope (§ 12022, subd. (b)). Appellant pleaded not guilty and denied the allegation.
On June 10, 1992, the prosecutor filed a motion with the trial court “to produce and . . . unseal documents in the custody of the county clerk.” Defense counsel filed an opposition. On July 7, 1992, Superior Court Judge James H. Piatt, after hearing argument by counsel, granted the motion. Execution of the order was stayed to permit appellant to petition for a writ of prohibition. On August 5, 1992, Division Three of this court summarily denied appellant’s petition. The next day, on August 6, 1992, Judge Piatt personally turned the subject writings over to the prosecutor.
Trial began on September 8,1992. Jury deliberations began September 22, 1992, and later that day the jury found appellant guilty of first degree murder (§ 187) and found true the allegation he had personally used a deadly weapon, a rope. (§ 12022, subd. (b).) The trial court, Superior Court Judge Thomas F. Nuss, denied appellant’s new trial motion and sentenced him to state prison for 26 years to life.
There being no insufficiency of evidence claim, we summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)
That appellant strangled Ruth2 Huerta in his bedroom of his parents’ house in the early afternoon of March 28, 1992, was not disputed. Appellant admitted as much before and during trial. In dispute was only the degree of his culpability.
Appellant and the victim began dating in October 1991 and some months later became engaged. But in late February or early March 1992 their [1016]*1016relationship became strained. Appellant was unemployed, lived with his parents, and was depressed. During a meeting with Ruth appellant became upset and shook her. She said she did not want to see him anymore. Appellant continued to telephone her, became angry, and called her names.
On March 28, 1992, the victim and her 16-year-old sister Roxanne planned to celebrate Roxanne’s good grades by going shopping in the mall and then out to eat. But early that morning appellant called and told Roxanne he wanted to speak to Ruth. Informed she was in the bathroom, he called again. Ruth talked to appellant and they yelled at each other. Finally, Ruth agreed to briefly see appellant.
Before she left, around 1 p.m., Ruth told Roxanne to telephone her at appellant’s house and say there was an emergency, otherwise appellant probably would not let her leave.
A little after 1 p.m. appellant’s uncle arrived at appellant’s house, saw Ruth’s car in the driveway, and spoke briefly to appellant outside the house. The uncle left but returned in about 15 minutes, saw Ruth’s car still in the driveway, talked to appellant for a few minutes outside the house, and left. He had not seen or heard Ruth. Appellant did not appear intoxicated to him; appellant seemed “normal.”
Appellant’s parents returned home about 5:30 p.m. and saw a note from appellant on the kitchen table. It stated: “Mom Dad I love you and I’m so sorry for what has happened. I love you. Please forgive me. I will call you. If anyone calls for Ruth, say that we went to Newport Beach.”
A short time later appellant’s married sister, Sherri Lucero, called her parents and asked if appellant’s bedroom door was locked.3 When told it was, she urged her parents to get into the room. They did. On the floor was an object wrapped in a tarp and covered by a blanket. Appellant’s mother called 911.
The police arrived and found Ruth inside the blanket and tarp coverings, dead, strangled by a double looped rope around her neck. Her ankles, wrists, and elbows were bound with telephone cord.
Appellant, after killing Ruth, drove her car to a bank and used her automated teller machine (ATM) card to withdraw $200. Later, about 6:30 p.m., he drove to his sister Kathy’s house and told her something bad had happened, that someone had been killed.
[1017]*1017The next day, March 29, 1992, accompanied by his sisters, appellant surrendered to the police.
Appellant testified that on March 28, 1992, he consumed quantities of alcohol and cocaine, argued with Ruth at his house, put a rope around his neck and then remembered sitting on the bedroom floor, looking up and seeing Ruth’s eyes staring at him. He did not see the rope around her neck, he only saw her eyes. He was scared and, still seated, flipped the blanket over Ruth. He felt weak, hot, had difficulty standing up, ran around the house yelling, returned to the bedroom, and, in stumbling, pulled Ruth from the bed onto the floor. He tried to lift her in order to carry her to the car and get help but he could not lift her. So he tied her ankles together to lift her, but still could not. He did not remember tying her wrists and elbows and did not remember strangling her.
Discussion
A. Did the trial court err in furnishing the inculpatory writings to the prosecutor?
1. The inculpatory writings.
About a week after the offense, appellant’s sisters Kathy and Sherri decided to air out appellant’s bedroom and also to look for letters. They, along with appellant’s parents, other relatives and friends began looking into the closets of his two bedrooms. In the middle bedroom, where Ruth’s body had been found, Sherri saw a bag in the closet filled with magazines. Among the magazines were papers with appellant’s writing.
In a back bedroom, also used by appellant, Sherri found other papers on the closet floor. Some were balled up. Others were in a little box. They also had appellant’s writing.
The writings were of various sorts. Some were dated (Mar. 26 or Mar. 27 or Mar. 28), some were signed by appellant, and almost all referred to Ruth and appellant’s feelings toward her. One dated “3/26” stated: “I don’t want to hurt my girl but if she’s not going to be mine, she won’t be anyone else’s either. Our love was meant to be ‘Death do us Part'."
Another stated that Saturday “could be the perfect opportunity, to follow through with what may very well be necessary. [1] I really do wish that I had a gun, it would be so much easier and less painfull. Although if it needs to come to this, maybe pain should be felt?”
[1018]*1018Still another appeared to be a murder checklist. On a three-and-one-half-by seven-and-one-half-inch piece of paper were the following numbered entries: “(1) strangle-stab[4] (2) enter into 4-ply gray plastic bags (3) seal bags thoroughly (4) empty trunk and line w/ blanket to place 4-ply into a cover with blanket. Check all oil, fluids, tires. (5) place two (5 gall.) gas containers in both corners of trunk (6) P. hills [?] ATM bogus deposit of $320[5] —/withdraw $200—try to write check to guerrero bail for $100 $200 (7) use credit card to fill gas tank and containers, purchase tire flat fix cans (9)[6] Roy (cocaine) (10) need two cocaine bullets to be able to snort and drive calmly and safely to Seattle.[7]”
2. Transmission of the inculpatory writings.
In a declaration filed with the trial court, the prosecutor described the transmission and delivery of the subject writings as follows. Sherri, appellant’s sister, and other family members found the writings and gave them to Kathy Gonzales, another sister of appellant. She gave them to an attorney, Henry Gonzales. Mr. Gonzales gave them to a public defender investigator who gave them to appellant’s attorney, Deputy Public Defender Henry Bastien. Mr. Bastien placed the writings in a sealed envelope, and without informing the prosecutor, delivered them to the clerk of the court.
The prosecutor learned of the writings from Sherri Lucero’s husband who also told the prosecutor that appellant’s sister Kathy had given them to the Attorney Henry Gonzales.
3. Defense counsel’s delivery of the inculpatory writings to the trial court.
Although defense counsel did not explain why he delivered, under seal, the inculpatory writings to the trial court, case law suggests an explanation.
In People v. Lee (1970) 3 Cal.App.3d 514, 526 [83 Cal.Rptr. 715]8 the court stated it was “ ‘an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the instrumentalities of a [1019]*1019crime.’ ’’ Its discussion made clear the responsibility extended to other physical evidence. (Ibid.) Defense counsel could withhold the physical evidence for a reasonable time to examine it but then “ ‘should, as an officer of the court, on his own motion turn the same over to the prosecution.’ ” (Ibid.)
Our Supreme Court extended this responsibility in People v. Meredith (1981) 29 Cal.3d 682 [175 Cal.Rptr. 612, 631 P.2d 46]. In Meredith the victim was robbed and murdered. One of the defendants (Scott) told his lawyer he took “the victim’s wallet, divided the money with Meredith, attempted to burn the wallet, and finally put it in the trash can.” (Id. at p. 686.) The lawyer had his investigator retrieve the wallet from the trash can. “Counsel examined the wallet and then turned it over to the police.” (Ibid.) The admissibility of the wallet was not in dispute but the testimony of the investigator who retrieved it was contested. Defendant (Scott) claimed the attorney-client privilege prevented the prosecution from calling the investigator and eliciting the location of the retrieved wallet.
Justice Tobriner, writing for a unanimous court, held “that whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence. . . .” (29 Cal.3d at p. 695.)
Justice Tobriner also referred to an attorney’s responsibility when given evidence not by his client but third parties. He stated, “Two decisions, People v. Lee (1970) 3 Cal.App.3d 514 [83 Cal.Rptr. 715] and Morrell v. State (Alaska 1978) 575 P.2d 1200, held that an attorney must not only turn over evidence given him by third parties, but also testify as to the source of that evidence. Both decisions emphasized that the attorney-client privilege was inapplicable because the third party was not acting as an agent of the attorney or the client.” (29 Cal.3d at p. 693, fn. 5, original italics.)
In People v. Superior Court (Fairbank) (1987) 192 Cal.App.3d 32 [237 Cal.Rptr. 158] the prosecutor learned from defendant’s intercepted jail letter to another inmate that defendant’s lawyer had possession of the murder weapons. When the trial court refused to order defense counsel to deliver them to the prosecutor, the prosecutor petitioned for a writ of mandate. In issuing the writ the court stated, “If counsel . . . chooses to . . . possess . . . physical evidence pertaining to the crime, counsel must immediately inform the court of the action.” (Id. at pp. 39-40.) The court also noted this “legal obligation[] should be self-executing and no motion by the prosecution or order by the court should be required to enforce [it].” (Id. at p. 39.)
[1020]*1020In delivering the inculpatory writings to the trial court defense counsel did no more9 than his “legal obligation.” (192 Cal.App.3d at p. 39.)
4. Privilege against self-incrimination.
The Fifth Amendment of the United States Constitution states “No person . . . shall be compelled in any criminal case to be a witness against himself. . . .” Appellant contends the trial court violated this provision by furnishing his inculpatory writings to the prosecutor. Appellant’s sole authority is Izazaga v. Superior Court (1991) 54 Cal.3d 356 [285 Cal.Rptr. 231, 815 P.2d 304],
Izazaga, which upheld as constitutional the reciprocal discovery provisions (§ 1054 et seq.) of Proposition 115, did not involve a defendant’s writings. (54 Cal.3d at p. 364, fn. 1.) But in considering the petitioner’s claim that the reciprocal discovery statutes violated his Fifth Amendment privilege, Izazaga stated: “Under cases of the Supreme Court, there are four requirements that together trigger this privilege: the information sought must be (i) ‘incriminating’; (ii) ‘personal to the defendant’; (iii) obtained by ‘compulsion’; and (iv) ‘testimonial or communicative in nature.’ (See United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160] Schmerber v. California (1966) 384 U.S. 757, 761 [16 L.Ed.2d 908, 914, 86 S.Ct. 1826]; Doe v. United States (1988) 487 U.S. 201, 207 [101 L.Ed.2d 184, 194-195, 108 S.Ct. 2341].)4” (Id. at p. 366.) Footnote 4 stated: “These four requirements emanate directly from the wording of the self-incriruination clause: ‘No person . . . shall be compelled in any criminal case to be a witness against himself. . . .’” (Ibid., original italics.)
Appellant argues that each of these four requirements was satisfied. In making this argument appellant neither discusses the three cases cited by Izazaga (Nobles, Schmerber, and Doe) nor any other pertinent authority. We consider appellant’s contention.
Three of the requirements cannot seriously be questioned: the writings, concededly, are incriminating, personal to the defendant, and communicative in nature.
As to the fourth, “obtained by ‘compulsion’,” appellant’s entire argument consists of this: “they were obtained ... by compulsion—i.e., they were obtained against appellant’s will and over his objection.”
Appellant is mistaken. He cites no authority for the proposition that a prosecutor obtains evidence by compulsion if the defendant objects to his obtaining that evidence. The law is otherwise.
[1021]*1021In United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160], the first case cited by Izazaga, after the defense called its investigator as a witness, the defense was required to disclose its investigator’s interview report of prosecution witnesses. Notwithstanding the defendant’s objection, the high court stated, “Requiring their production from the investigator therefore would not in any sense compel [defendant] to be a witness against himself or extort communications from him." (Id. at p. 234 [45 L.Ed.2d at p. 150].)
In Schmerberv. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826], the second case cited by Izazaga, the issue was not compulsion (it was clearly present) but rather whether the compulsion was testimonial. In upholding the taking of a blood sample from the defendant the court found it was not.
Before considering Doe v. United States (1988) 487 U.S. 201 [101 L.Ed.2d 184, 108 S.Ct. 2341], the third case cited by Izazaga, it is useful to note four of its antecedents.
In Warden v. Hayden (1967) 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642] the Supreme Court stated: “Nothing in the language of the Fourth Amendment supports the distinction between ‘mere evidence’ and instrumentalities, fruits of crime, or contraband .... Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband.” (Id. at pp. 301-302 [18 L.Ed.2d at pp. 788-789].) Warden upheld the search and seizure of the defendant’s cap and jacket and rejected the Boyd rule (Boyd v. United States (1886) 116 U.S. 616 [29 L.Ed. 746, 6 S.Ct. 524]) that “ ‘to permit them to be used in evidence would be, in effect... to compel the defendant to become a witness against himself.’ ’’ (Warden v. Hayden, supra, 387 U.S. at p. 302 [18 L.Ed.2d at p. 789].)10
In Fisher v. United States (1976) 425 U.S. 391 [48 L.Ed.2d 39, 96 S.Ct. 1569] taxpayers being investigated by the Internal Revenue Service (IRS) [1022]*1022obtained documents from their accountants and, within the attorney-client relationship, transferred those documents to their lawyers. IRS served summonses on the lawyers, requiring them to produce the documents. The lawyers refused.
Fisher held: “The taxpayer’s privilege under [the Fifth] Amendment is not violated by enforcement of the summonses involved in these cases because enforcement against a taxpayer’s lawyer would not ‘compel’ the taxpayer to do anything—and certainly would not compel him to be a ‘witness’ against himself.” (425 U.S. at p. 397 [48 L.Ed.2d at p. 47].)
Justice White made clear that the Fifth Amendment is not implicated just because communicative evidence is compelled. It is implicated only when the compulsion is against the defendant. Justice White stated: “The taxpayers’ Fifth Amendment privilege is therefore not violated by enforcement of the summonses directed toward their attorneys. This is true whether or not the Amendment would have barred a subpoena directing the taxpayer to produce the documents while they were in his hands.” (425 U.S. at p. 397 [48 L.Ed.2d at p. 48].) He added, “This personal privilege was in no way decreased by the transfer. It is simply that by reason of the transfer of the documents to the attorneys, those papers may be subpoenaed without compulsion on the taxpayer. The protection of the Fifth Amendment is therefore not available. ‘A party is privileged from producing evidence but not from its production.’ ” (Id. at pp. 398-399 [48 L.Ed.2d at p. 49].)
Fisher also makes clear that not only must the “compulsion” be against the defendant but it must be the testimony—tire communication—which is compelled. It states, “[T]he Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the court’s view, did not involve compelled testimonial self-incrimination of some sort.
“The proposition that the Fifth Amendment protects private information obtained without compelling self-incriminating testimony is contrary to the clear statements of this Court that under appropriate safeguards private incriminating statements of an accused may be overheard and used in [1023]*1023evidence, if they are not compelled at the time they were uttered, Katz v. United States, 389 U.S. 347, 354, [19 L.Ed.2d 576, 583-584, 88 S.Ct. 507] (1967); Osborn v. United States, 385 U.S. 323, 329-330 [17 L.Ed.2d 394, 399-400, 87 S.Ct. 429] (1966); and Berger v. New York, 388 U.S. 41, 57 [18 L.Ed.2d 1040, 1051, 87 S.Ct 1873] (1967); cf. Hoffa v. United States, 385 U.S. 293, 304 [17 L.Ed. 2d 374, 383, 87 S.Ct. 408]; and that disclosure of private information may be compelled if immunity removes the risk of incrimination. Kastigar v. United States, 406 U.S. 441 [32 L.Ed.2d 212, 92 S.Ct. 1653] (1972). If the Fifth Amendment protected generally against the obtaining of private information from a man’s mouth or pen or house, its protections would presumably not be lifted by probable cause and a warrant or by immunity. The privacy invasion is not mitigated by immunity; and the Fifth Amendment’s strictures, unlike the Fourth’s, are not removed by showing reasonableness. The Framers addressed the subject of personal privacy directly in the Fourth Amendment. They struck a balance so that when the State’s reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue. They did not seek in still another Amendment—the Fifth—to achieve a general protection of privacy but to deal with the more specific issue of compelled self-incrimination.” (425 U.S. at pp. 399-400 [48 L.Ed.2d at pp. 49-50].)
Andresen v. Maryland (1976) 427 U.S. 463 [49 L.Ed.2d 627, 96 S.Ct. 2737] found no violation of the Fifth Amendment in the seizure of business records, including those written by defendant. The issue was framed this way: “There is no question that the records seized from petitioner’s offices and introduced against him were incriminating. Moreover, it is undisputed that some of these business records contain statements made by petitioner. .. . The question, therefore, is whether the seizure of these business records, and their admission into evidence at his trial, compelled petitioner to testify against himself in violation of the Fifth Amendment.” (Id . at p. 471 [49 L.Ed.2d at p. 637], internal citations omitted.)
In answering no, the court explained that “petitioner was not asked to say or to do anything. The records seized contained statements that petitioner had voluntarily committed to writing. The search for and seizure of these records were conducted by law enforcement personnel. Finally, when these records were introduced at trial, they were authenticated by a handwriting expert, not by petitioner. Any compulsion of petitioner to speak, other than the inherent psychological pressure to respond at trial to unfavorable evidence, was not present.
“This case thus falls within the principle stated by Mr. Justice Holmes: ‘A party is privileged from producing the evidence but not from its production.’ [1024]*1024Johnson v. United States, 228 US 457, 458 [57 L.Ed. 919, 920, 33 S.Ct. 572].” (427 U.S. at p. 473 [49 L.Ed.2d at p. 638].)
Andresen, like Fisher, concludes that no Fifth Amendment violation occurs when a defendant, without being compelled to do so, makes a writing and the government, without compelling the defendant to produce the writing, obtains that writing.
In United States v. Doe (1984) 465 U.S. 605 [79 L.Ed.2d 552, 104 S.Ct. 1237], there was little left to decide. A grand jury investigating corruption served respondent with five subpoenas for specified business records. In accordance with Fisher and Andresen, the court rejected any Fifth Amendment claim based upon the content of the documents. The court stated, “Where the preparation of business records is voluntary, no compulsion is present.”11 (United States v. Doe, supra, 465 U.S. at p. 610 [79 L.Ed.2d at p. 559].) It also rejected the argument that a “zone of privacy” protects private papers from compelled production. (Id. at p. 610, fn. 8 [79 L.Ed.2d at p. 559].)
In the third case cited by Izazaga, Doe v. United States (1988) 487 U.S. 201 [101 L.Ed.2d 184, 108 S.Ct. 2341] (a related case to United States v. Doe, supra), the Supreme Court held that compelling Doe to execute a form authorizing disclosure of his records was not violative of the Fifth Amendment. (Id. at p. 206 [101 L.Ed.2d at p. 194].) Although the records were clearly communicative and Doe was compelled to authorize their disclosure, the compelled act of authorization was not “testimonial” within the meaning of the Fifth Amendment. (See also SEC v. Jerry T. O'Brien, Inc. (1984) 467 U.S. 735, 742 [81 L.Ed.2d 615, 621-622, 104 S.Ct. 2720].)
Accordingly, if a defendant, without being compelled to do so, creates inculpatory writings and the government obtains them without compelling the defendant to authenticate or vouch for those writings, the Fifth Amendment is not violated. (People v. Thayer, supra, 63 Cal.2d 635, 638; Fisher v. United States, supra, 425 U.S. 391; Andresen v. Maryland, supra, All U.S. 463; United States v. Doe, supra, 465 U.S. 605; SEC v. Jerry T. O’Brien, [1025]*1025Inc., supra, 467 U.S. 735; United States v. Moody (11th Cir. 1992) 977 F.2d 1425 [defendant’s personal writings and his jail cell oral communications properly seized and admitted]; People v. Miller (1976) 60 Cal.App.3d 849 [131 Cal.Rptr. 863] [defendant’s diary properly admitted]; State v. Barrett (Iowa 1987) 401 N.W.2d 184 [Iowa Supreme Court held no violation of Fifth Amendment in admitting defendant’s 143-page personal journal]; State v. Andrei (Me. 1990) 574 A.2d 295 [Maine Supreme Court held defendant’s diary admissible]; see generally, 1 LaFave, Search & Seizure (2d ed. 1987) §§ 2.6(d) and 2.6(e), pp. 487-494; 8 Wigmore, Evidence (McNaughton rev. 1961) §§ 2263, 2264, pp. 378-386; Burkoff, Search Warrant Law Deskbook, § 18.3, pp. 18-12, 18-13; Note (1977) 76 Mich.L.Rev. 184, 206-211; Note (1977) 90 Harv.L.Rev. 945; McCormick, Evidence (3d ed. 1984) §§ 125-127, pp. 304-311; see also People v. Sirhan (1972) 7 Cal.3d 710 [102 Cal.Rptr. 385, 497 P.2d 1121] [defendant’s private journals properly admitted but Fifth Amendment not addressed]; People v. Frank (1985) 38 Cal.3d 711 [214 Cal.Rptr. 801, 700 P.2d 415] [search warrant for defendant’s diary invalid because affidavit failed to provide probable cause the diary existed and was present at the search location].)
There is nothing in Izazaga to suggest disagreement with this settled proposition. To the contrary, Izazaga expressly adopts it. It states, “[P]etitioner’s argument misinterprets the scope of the self-incrimination clause, which ‘protects a person only against being incriminated by his own compelled testimonial communications.' " (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 366, original italics.)
We conclude that because appellant voluntarily created the subject writings and the prosecutor obtained them from the trial court, not appellant, there was no violation of appellant’s privilege against self-incrimination.
5. The reciprocal discovery statutes (§ 1054 et seq.)
The linchpin of appellant’s next contention is this statement in In re Littlefield (1993) 5 Cal.4th 122, 129 [19 Cal.Rptr.2d 248, 851 P.2d 42]:12 “In criminal proceedings, under the reciprocal discovery provisions of section 1054 et seq., all court-ordered discovery is governed exclusively by—and is barred except as provided by—the discovery chapter newly enacted by Proposition 115. (§§ 1054, subd. (e), 1054.5, subd. (a).)”
Appellant, based upon this language, argues: “In order to determine whether the discovery of appellant’s writings was lawful, consequently, the [1026]*1026four corners of the new discovery scheme must be scrutinized. If such discovery was not authorized by the latter scheme, then it was ‘barred.’ ”
Appellant then proceeds to “scrutinize” the statute, readily concluding the subject “discovery” is outside section 1054.3.13 (Respondent concedes as much.) Appellant then turns to section 1054.4, relied upon by the trial court and respondent, which provides: “Nothing in this chapter shall be construed as limiting any law enforcement or prosecuting agency from obtaining nontestimonial evidence to the extent permitted by law on the effective date of this section.”
Appellant concedes this section authorizes a prosecuting agency to obtain “nontestimonial evidence” outside the “four corners” of the discovery statutes but only “nontestimonial evidence.”
Finally, appellant concludes that because the subject writings are communicative (citing Schmerber v. California, supra, 384 U.S. 757) and contain factual assertions they are “testimonial” and therefore not authorized by section 1054.4.
We find the contention a sophism. It is erroneously based upon the notion that the prosecutor’s motion was a “discovery” motion to which the reciprocal discovery statutes applied. It was not.
To return to the linchpin language of Littlefield: “In criminal proceedings, under the reciprocal discovery provisions of section 1054 et seq., all court-ordered discovery is governed exclusively by—and is barred except as provided by—the discovery chapter . . . .” (5 Cal.4th at p. 129, italics added.)
The statute makes clear the meaning of “discovery” in its statement of purposes: “To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.” (§ 1054, subd. (b).)
In making its motion, the prosecutor sought no evidence from appellant, testimonial or nontestimonial. The evidence sought by the prosecutor was [1027]*1027possessed by the trial court (not a “party”) and it was from the trial court the prosecutor sought and obtained it.14
In rejecting a similar “four corners scrutiny” argument, People v. Superior Court (Broderick) (1991) 231 Cal.App.3d 584, 594 [282 Cal.Rptr. 418], stated, “Proposition 115 discovery procedures apply only to discovery between the People and the defendant. They are simply inapplicable to discovery from third parties.” (See also 5 Witkin & Epstein, Cal. Criminal Law (1993 Supp.) § 2498D, pp. 16-17.)
We add these brief observations. In delivering the writings to the court, appellant makes no claim that he acted pursuant to the reciprocal discovery statutes. Yet by that delivery, and dispossession, he would foreclose not only reciprocal “discovery” but “normal investigative efforts.” (5 Witkin & Epstein, Cal. Criminal Law, supra, § 2498D, p. 17.)
Additionally, appellant makes no claim that by granting the prosecutor’s motion the trial court ordered appellant to disclose anything, testimonial or nontestimonial.
Finally, we note that as used in section 1054.4 the writings, although communicative, were “nontestimonial.” The section “makes clear that it is not directed at normal investigative efforts of law enforcement agencies.” (5 Witkin & Epstein, Cal. Criminal Law, supra, § 2498D, p. 17.) Seizing murder checklists and diaries containing evidence are normal investigative efforts. (See, e.g., People v. Miller, supra, 60 Cal.App.3d 849; 1 LaFave, Search & Seizure, supra, §§ 2.6(d) and 2.6(e), pp. 487-494.) In concluding otherwise appellant misreads Schmerber v. California, supra, 384 U.S. 757, and Doe v. United States, supra, 487 U.S. 201.
In Schmerber the issue was whether compelling a defendant to give a blood sample was “testimonial” and thus violative of the Fifth Amendment. In Doe the issue was whether compelling Doe to execute consent bank disclosure forms was “testimonial.” (Doe held it was not.) Similarly, when the issue involved compelling a defendant to do something (give a handwriting exemplar, try on a jacket, make sounds) courts have determined whether the compelled act is “testimonial.” (See Doe v. United States, supra, 487 U.S. at pp. 210-211 [101 L.Ed.2d at p. 197].) Implicit in such use of “testimonial” is “compulsion.” It is in that sense that the term is used in section 1054.4. (See United States v. Moody, supra, 977 F.2d 1145; Fisher v. United States, supra, 425 U.S. 391, 399-400 [48 L.Ed.2d 39, 49-50].) As we have noted, [1028]*1028voluntarily created writings do not involve compelled testimony. (See also Evid. Code, § 140: [“ ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.”]; Stern v. Superior Court (1947) 78 Cal.App.2d 9, 13 [177 P.2d 308] [“All evidence is not testimony. Testimony is limited to that sort of evidence which is given by witnesses speaking under oath or affirmation”.]). Appellant’s contention that “every written . . . statement ... is necessarily testimonial” was explicitly rejected by Doe v. United States, supra, 487 U.S. 201, 208-209 [101 L.Ed.2d 184, 196],
In holding the trial court properly furnished the inculpatory writings to the prosecutor15 we implement the purpose of the reciprocal discovery statutes: “To promote the ascertainment of truth in trials . . . .” (§ 1054, subd. (a).) As Justice Powell observed in United States v. Nobles: “ ‘lire ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.’ ” (United States v. Nobles, supra, 422 U.S. 225, 231 [45 L.Ed.2d 141, 149],)16
B. Reasonable Doubt.
Appellant contends the trial court erred in giving the standard reasonable doubt instruction. (CALJIC No. 2.90.) We disagree.
The California Supreme Court (People v. Jennings (1991) 53 Cal.3d 334, 385-386 [279 Cal.Rptr. 780, 807 P.2d 1009]; People v. Johnson (1992) 3 [1029]*1029Cal.4th 1183, 1234 [14 Cal.Rptr.2d 702, 842 P.2d 1]; People v. Sandoval (1992) 4 Cal.4th 155,185-186 [14 Cal.Rptr.2d 342, 841 P.2d 862]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [15 Cal.Rptr.2d 400, 842 P.2d 1160]) and the United States Supreme Court (Victor v. Nebraska (1994) 511 U.S. _ [127 L.Ed.2d 583, 114 S.Ct. 1239]) have both found CALJIC No. 2.90 constitutional.
C. CALJIC Nos. 2.03 and 2.62.
Appellant contends the trial court erred in giving a consciousness of guilt instruction (CALJIC No. 2.03).17 We disagree.
It was for the jury to determine whether the note appellant left for his parents and some of his statements to Detective Reed were “false or deliberately misleading.” If the jury found them so, CALJIC No. 2.03 provided appropriate legal guidance. (See People v. Bacigalupo (1991) 1 Cal.4th 103, 127-127 [2 Cal.Rptr.2d 335, 820 P.2d 559]; People v. Kelly (1992) 1 Cal.4th 495 [3 Cal.Rptr.2d 677, 822 P.2d 385]; People v. Liss (1950) 35 Cal.2d 570, 576 [219 P.2d 789]; People v. Waller (1939) 14 Cal.2d 693, 702 [96 P.2d 344].)
Appellant also contends the trial court erred in giving CALJIC No. 2.6218 (failure to deny or explain evidence). We disagree.
The instruction, if justified by the evidence, does not violate a defendant’s privilege against self-incrimination, deny him the presumption of innocence, nor violate due process. (People v. Saddler (1979) 24 Cal.3d 671, 678 [156 Cal.Rptr. 871, 597 P.2d 130].)
When a defendant testifies but fails to deny or explain inculpatory evidence or gives a “bizarre or implausible” explanation, the instruction is [1030]*1030proper. (People v. Mask (1986) 188 Cal.App.3d 450, 455 [233 Cal.Rptr. 181]; see also People v. Belmontes (1988) 45 Cal.3d 744, 784 [248 Cal.Rptr. 126, 755 P.2d 310].) “[T]he applicability of CALJIC No. 2.62 is peculiarly dependent on the particular facts of the case.” (People v. Roehler (1985) 167 Cal.App.3d 353, 393 [213 Cal.Rptr. 353].)
Appellant testified, failed to deny or explain inculpatory evidence, and gave a bizarre and implausible explanation. We cite only some of the many examples.
Appellant gave detailed and specific testimony about his prolific consumption of alcohol and cocaine during the afternoon of March 28,1992, but had no memory of inculpatory events during that same afternoon: he did not remember tying the victim’s wrists and elbows; he did not remember double-looping the rope around the victim’s neck and strangling her; he did not remember seeing the noose around the victim’s neck after he had strangled her (he saw only her “eyes”); although too weak to lift the victim appellant did not explain how she was found wrapped in a tarp and then covered by a blanket; although appellant testified he called out for help and looked for neighbors to assist the victim, he did not explain why he then drove the victim’s car to withdraw $200—and did not seek help for her; and appellant failed to explain what appeared to be his murder checklist.
The trial court properly gave CALJIC No. 2.62.
Disposition
The judgment is affirmed.
Lillie, P. J., concurred.