¶1I concur in that part of the opinion upholding the search and seizure. I also concur in the reversal, but only under compulsion of People v. Levey, with whose application to a case such as this I disagree. (Rule 976(b), Cal. Rules of Court.) It seems to me that to require a specific waiver of self-incrimination in this case is to impose a meaningless burden upon the trial judge.
¶2Appellant did not testify at the preliminary hearing, the transcript of which he stipulated was to determine his guilt or innocence. Accordingly, he cannot be held there to have incriminated himself. The testimony of others incriminated him, it is true, but “incrimination” and the “self-incrimination” forbade by the United States Constitution, Fifth Amendment (“. . . nor shall [he] be compelled in any criminal case to be a witness against himself, . . .”), are different terms, representing different things..
¶3The constitutional right is a privilege that “protects an accused only from being compelled to testify against himself, or otherwise provide the *239State with evidence of a testimonial or communicative nature, . . .” (Schmerber v. California (1966) 384 U.S. 757, 761 [16 L.Ed.2d 908, 914, 86 S.Ct. 1826]. And see: Gilbert v. California (1967) 388 U.S. 263, 266-267 [18 L.Ed.2d 1178, 1182-1183, 87 S.Ct. 1951].) While, contrary to statements appearing in earlier California cases (cf. People v. Haeussler (1953) 41 Cal.2d 252, 257 [260 P.2d 8]; People v. Duroncelay (1957) 48 Cal.2d 766, 770 [312 P.2d 690]), it appears that the rule against self-incrimination is not limited to statements “coming from a ‘person’s own lips’ ” (Schmerber v. California, supra, 384 U.S. at pp. 774-775 [16 L.Ed. 2d at p. 922]—dissent of Black and Douglas), nevertheless, its further extension is only to defendant’s evidence of a “communicative” nature. I cannot understand how an agreement to submit a finding of guilt or innocence upon a transcript of testimony given by other people may be considered as such evidence. Nor, for that matter, how the Fifth Amendment is involved at all. (See Schmerber v. California, supra, 384 U.S. at p. 772 [16 L.Ed.2d at p. 921]—dissent of Harlan and Stewart; and see fn. 4 in People v. Sanchez (1972) 24 Cal.App.3d 664 [101 Cal.Rptr. 193] cited and distinguished, but not disapproved, in People v. Levey, fn. 4.)
¶4Submission upon the transcript may here be tantamount to a plea of guilty but it does not “furnish a link in the chain of evidence needed for conviction.” (People v. Levey, supra, 8 Cal.3d at p. 652.) The submission was pursuant to an understanding that defendant would be found guilty of the lesser of the two offenses charged. In the limited sense of that understanding, only, was it “tantamount to a plea of guilty,” since defendant preserved the opportunity for appellate review of his contention that evidence had been unlawfully obtained. (Pen. Code, § 1538.5, subd. (m).)
¶5The record shows that defendant not only waived his right to a jury trial, but, additionally, waived his right to a trial in which the witnesses against him would be required to- appear for examination and cross-examination in defendant’s presence. Having thus waived his right (Sixth Amendment) “. . . to be confronted with the witnesses against him; . . .,” I am unable to understand why he should be required additionally to waive his right against self-incrimiiiation.