Spicer

In the underlying action, a jury found appellant Stafford Joel Spicer guilty of the 1985 murder of Joanna Jones. Appellant contends his prior conviction for receiving Jones’s stolen car mandated the dismissal of the underlying action under Penal Code section 654, and that evidence of a 1974 incident of sexual misconduct was improperly admitted under Evidence Code section 1108; in addition, he maintains that his conviction for murder must be reversed due to insufficiency of the evidence and the ineffective assistance of his defense counsel.

In the published portion of this decision, we examine appellant’s contentions under Penal Code section 654 and Evidence Code section 1108. Regarding the former, the focus of our discussion is on the “unavailable evidence” exception to the rule regarding multiple prosecutions in Penal Code section 654, as annunciated in People v. Davis (2005) 36 Cal.4th 510 [ 31 Cal.Rptr.3d 96 , 115 P.3d 417 ] (Davis). We conclude that under the exception, in cases where the prosecution has probable cause to charge the defendant with murder and a related crime and proceeds only on the related crime, it is not thereafter barred from bringing the murder…