Murder prosecution was proper years after defendant was convicted of receiving the victim’s stolen car under the “unavailable evidence” exception to Penal Code section 654. In 1985, Spicer was charged with receiving stolen property, Joanna Jones’ stolen car. He pleaded guilty and was sentenced to prison. In 2011, after additional evidence was obtained, he was charged with Jones’ 1985 murder. He unsuccessfully sought dismissal of the charge as a “multiple prosecution” prohibited by section 654. He was convicted of first degree murder and appealed, claiming the charges should have been dismissed under the double jeopardy clause and section 654. Held: Affirmed. Under section 654, when the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless certain exceptions apply. In this case, the court concluded that the “unavailable evidence” exception (see People v. Davis (2005) 36 Cal. 4th 510, 558) “applies when the prosecution, though having probable cause to charge a defendant with murder and a related crime, declines to file the murder charge prior to the defendant’s conviction for the related crime because it lacks facts to support the objectively reasonable belief that it can prove the murder charge at trial, despite due diligence in the investigation of the crimes.” Although the prosecution had probable cause to charge Spicer with Jones’ murder in 1985, the trial court did not err in determining that the prosecution did not possess evidence supporting an objectively reasonable belief that Spicer would be convicted of the crime at that time. Additionally, the double jeopardy clause did not bar the action because appellant’s conviction for receiving stolen property was separate and independent from the murder charge.

The trial court properly admitted prior acts evidence under Evidence Code section 1108. Over objection, the trial court admitted the testimony of a woman who said that Spicer broke into her apartment in 1974 and touched her breasts and thigh. The Court of Appeal held that the trial court did not err in admitting the evidence under section 1108. Even though there was little evidence that Jones was in fact subject to a sexual assault or attempted sexual assault, the prior act evidence was properly admitted to resolve whether appellant, in attacking Jones, acted with intent to commit rape. The similarities of the two offenses were sufficient to balance out the remoteness of the prior offense.