Sanchez

*1015 Opinion

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…

J.—I respectfully dissent from the majority’s holding the defendant’s diary was properly turned over to the prosecution.

The majority affirms the trial court’s order releasing the diary to the prosecution on a ground not raised in the parties’ briefs: defense counsel had a duty to voluntarily disclose the diary anyway. (Maj. opn., ante, at pp. 1018-1020.) Government Code section 68081 provides, “Before ... a court of appeal . . . renders a decision in a proceeding . . . based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.” In their briefs, *1031 the parties focused exclusively on the issues of whether disclosure of the diary was permissible under the criminal discovery statutes (Pen. Code, §§ 1054-1054.7) 1 and whether its disclosure to the prosecution would violate defendant’s privilege against self-incrimination. 2 If the majority believes the trial court’s order may be upheld on the ground defense counsel had an ethical…

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.

By information, Arthur Anthony Sanchez (appellant) was charged with the March 28, 1992, murder of Rufugia Limon 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…