MANELLA, J.

Neil Rosenbaum, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

MANELLA, J.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 charge upon obtaining additional evidence if, at the time it declined to proceed, the prosecution lacked evidence supporting the objectively reasonable belief that it could secure a murder conviction on the evidence then available, despite the exercise of due diligence in the investigation of the crimes. Regarding Evidence Code section 1108, we conclude that the admissibility of prior sexual misconduct under the statute does not hinge on whether there is sufficient independent evidence to prove that a sexual act occurred in the current case.

In the unpublished portion of this decision, we reject appellant's remaining contentions, with the exception of his challenge to the jury's special circumstance finding that he committed the murder during the commission, or attempted commission, of a kidnapping. Because that error was not prejudicial, we modify the judgment to strike the finding, and affirm the judgment, so modified.

RELEVANT PROCEDURAL BACKGROUND

In June 1985, an information was filed charging appellant with receiving stolen property (Pen.Code, § 496 ), namely, Jones's car. In February 1986, after pleading guilty to the charge, appellant was sentenced to a prison term of three years eight months.

On December 16, 2011, an information was filed charging appellant with Jones's murder. Accompanying the charge were allegations (§ 190.2, subd. (a)(17)) that the murder was committed while appellant was engaged in the commission, or attempted commission, of robbery (§§ 211, 211.5), kidnapping (§§ 207, 209, 209.5), and rape (§ 261). In addition, the information alleged that appellant had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1)), and had been convicted of two prior felonies (§ 1203, (e)(4)). Appellant pleaded not guilty and denied the special allegations.

Prior to trial, the court denied appellant's motion to dismiss the action on the ground that it constituted a “multiple prosecution” under section 654. Later, during the trial, the court dismissed the prior conviction allegations at the prosecution's request. After a jury found appellant guilty of first degree murder, and found all the murder-related special circumstance allegations to be true, the trial court sentenced appellant to a term of life imprisonment without the possibility of parole. This appeal followed.

FACTS

A. Prosecution Evidence

1. Events Preceding Jones's Murder

In 1974, appellant lived near Linda Tulach's apartment in Long Beach. Tulach testified that on August 4, 1974, at approximately 4:00 a.m., she and her two-year-old son were in her apartment, sleeping in the same bed. At the sound of breaking glass, she awoke to see appellant holding a knife. He moved quickly to her bed and said, “Don't scream, bitch.” When she asked, “Do you want money?,” he replied, “No, I want you.” While holding the knife, appellant touched Tulach's breasts and thigh, and ran his hands under the bed's mattress, saying that he was looking for weapons. After permitting Tulach to remove her son from the bedroom, appellant disabled her telephone and began running his hands along the legs of a pair of Tulach's pants he found on her bed. Tulach saw that her front door was unlocked, grabbed her son, and fled to a neighboring apartment. Several days later, while shopping, Tulach saw appellant in a parking lot, flagged down a police officer, and pointed out appellant as the man who had broken into her apartment.

Debra Perry was appellant's “common law ... wife” from 1977 to 1985. According to Perry, appellant was known as “Plumber Joe,” and he sold drugs obtained from Bill Brummet, who was a “major drug supplier” in Long Beach.

2. Jones's Disappearance

In April 1985, Martine Carcamo was dating Joanna Jones and living in an apartment building on Ocean Boulevard in Long Beach, near the Pacific Holiday Towers apartment complex. Jones sometimes spent weekends with Carcamo in his apartment. On the afternoon of April 28, 1985, Jones parked her blue Camaro close to his apartment and the Pacific Holiday Towers. After spending the night in Carcamo's apartment, Jones left for work the following morning, April 29, between 5:00 and 5:30 a.m.

Eugene Blackburn testified that in 1985, he worked as a security guard in the Pacific Holiday Towers. On April 29, 1985, his shift began at midnight and ended at 7:00 a.m. At 2:47 a.m., three people entered the building, one of whom signed the visitor sheet as “Joe Spicer.” According to Blackburn, between 5:00 and 5:30 a.m., the same person left the building “going like a bat out of hell,” and ran toward Ocean Boulevard.

After Jones left Carcamo's apartment, she failed to return his phone calls. He informed the police that she was missing. A few days later, while standing outside his apartment building, Carcamo saw Jones's Camaro pass by. The car was driven by appellant, and contained three other occupants. When Carcamo followed in his own car, appellant performed a U-turn and stopped. Carcamo also halted his car and yelled that he knew who owned the Camaro. The three passengers fled the Camaro on foot, and appellant drove away. Carcamo then reported to the police that he had seen Jones's car.On May 2, 1985, Long Beach Police Officer Paul Chastain and his partner responded to a call regarding Jones's potential kidnapping and stolen car. The officers located Jones's unoccupied Camaro parked at a market. The three passengers who fled from Carcamo were identified as Karen Zirpel, Lorraine McCrimmon, and Gerald Kuhnke, who then used the name “John Rustin.” The officers went to a nearby residence, where they saw appellant and Kuhnke. Although Kuhnke was detained, appellant fled from the officers.

Perry testified that after 11:00 p.m. on April 28, 1985, appellant left her apartment with two friends, and that she did not see him again until approximately 9:00 a.m. the following morning. On April 29, between 9:00 and 10:00 a.m., she walked to a convenience store with appellant, who pointed out a blue Camaro. He did not explain how he had obtained it. At some point, she saw appellant wipe down the car's interior. On May 2, Perry was arrested. Following her release, she had a phone conversation with appellant, who said that he was running from the police and that Brummet had “set him up.” They discussed the stolen Camaro and the related investigation into a potential murder.

On May 8, when arrested at Perry's apartment, appellant said he had not killed the car's owner. Following his arrest, appellant made additional voluntary statements to Officer Chastain, who accompanied him to the police station. Appellant said that on April 29, at approximately 9:30 a.m., a man named “Sean” offered the Camaro to him for the purpose of arranging its sale. Sean wanted $1,500 for the car, of which appellant would get $300. Appellant took possession of the car, although he was aware that it had probably been stolen. Later, when a man followed appellant while he was driving the Camaro, he decided to abandon it. Appellant told Officer Chastain that he had been “set up” for the homicide by Brummet.

On May 8, Long Beach Police Department Detective William Maclyman interviewed appellant. Appellant told Maclyman that Sean had asked him to try to sell the Camaro for him.

3. Discovery of Jones's Body

On June 8, 1985, several weeks after Jones's disappearance, hikers in Azusa Canyon smelled a foul odor from a drainage tunnel under the roadway. Looking into the tunnel, they observed a decomposing body, later identified as Jones's, and reported it. Los Angeles County Sheriff's Department Sergeant Robert Perry, who responded to the discovery, found Jones's unclothed body inside a culvert under a rural road, approximately 48 miles from Carcamo's apartment. Jones lay on her back with her legs spread apart, each touching a side of the culvert. Other than a pair of shoes near her feet, no items of her clothing were present.

Two days later, Dr. Lakshmanan Sathyavagiswaran performed an autopsy on Jones. Her body was decomposed, and showed maggot and animal activity. Dr. Sathyavagiswaran found an injury to her rib, as well as nine sharp force trauma injuries consistent with stab wounds to her neck, chest, and torso. Evidence of bleeding from the neck wounds supported the conclusion that she was alive when they occurred.

4. Investigation (1985 through 1987)

After appellant's arrest, fingerprints were lifted from the Camaro's exterior and its passenger area. Investigators also identified bloodstains on a mat and a cup holder found in the car's trunk.

On October 3, 1985, Sergeant Perry interviewed appellant at his attorney's office. Appellant stated that on the evening of April 28, 1985, he bought some methamphetamine and visited two friends, Gineen Bertram and Dave Metcalf, in Bertram's apartment in the Pacific Holiday Towers. During the night, appellant briefly left the apartment to buy drugs, and returned. At 8:00 a.m. the following day, when appellant was walking on a street near the apartment to buy a soda, he encountered Sean, who was driving the Camaro, and asked appellant to arrange for its sale. Sean initially requested $2,500 for the car, but agreed to accept $500 or a quantity of methamphetamine. Appellant identified “Sean” as Rick Castle, whom appellant characterized as a close associate of Brummet's. Appellant described Castle as a White male who walked with a limp due to a motorcycle accident. In addition, appellant maintained that Brummet wanted him off the streets, and had a bounty out on him.

Following the interview, Sergeant Perry unsuccessfully tried to locate Castle. The fingerprints lifted from the Camaro were determined not to match those of Castle or Brummet. At some point, investigators conducted a search of Brummet's residence, but found no evidence regarding Jones's murder.

On January 17, 1987, Sergeant Perry again interviewed appellant, who was then in prison. Appellant stated he had sold drugs for Brummet, but fell out with Brummet after he stole Brummet's gun. In 1984, Brummet threatened to kill him. Appellant further stated that he thought Brummet had “set him up.” According to appellant, Sean asked him to sell the Camaro for $2,500, and required appellant to give him $500. Appellant also said that he abandoned the car because he was using it to transport drugs, and thought that Carcamo was a pursuing “narc officer.”

5. Subsequent Investigation

In December 2008, Jones's murder was assigned to Los Angeles County Sheriff's Department Detective Stephen Davis, whose focus was on “cold cases.”

At some point in 2009, Detective Davis contacted Richard Castle. At trial, Castle denied knowing either appellant or Brummet; he also denied any involvement in Jones's murder and the theft of her car. According to Castle, in late 1984 or early 1985, he lived in Long Beach for two months, and suffered injuries in a motorcycle accident. After the accident, he and his roommate sometimes used methamphetamine. When Castle's roommate stole the settlement funds he had received following the accident, Castle moved to Arizona.

On May 19, 2009, Detective Davis interviewed appellant at his home in Nevada. Appellant stated that in 1985, he was “really involved in drugs.” The night before he obtained the Camaro, he visited Metcalf and his girlfriend in her apartment in the Pacific Holiday Towers. The apartment overlooked the street area around the building. The next day, appellant left the apartment and went home. Appellant initially stated that a “big black dude” brought the Camaro to him, but later said that the “black dude” introduced him to Sean, who had the car. Appellant also said that he obtained the car during the evening. Although appellant suspected the car was stolen, he saw it as a “way ... to make some quick money.” Appellant said that he intended to sell the car to Brummet, who wanted it. Appellant recalled no threats against him by Brummet, but stated that they once had an argument regarding whether appellant should carry a gun while he sold drugs. Appellant further stated that he was familiar with the Azusa Canyon area, which he had visited.

In October 2009, Detective Davis conducted a second interview of appellant, and obtained a DNA sample from him. During the interview, appellant stated that prior to obtaining the Camaro, he was acquainted with Sean, but did not know his true name. Appellant further stated that he obtained the car when a “black dude” and Sean brought it to him at a garage where he “dealt.” In August 2010, Detective Davis arranged for Gerald Kuhnke to testify during a grand jury proceeding related to appellant. When called as a witness in the trial below, Kuhnke testified that in 1985, he and Karen Zirpel were homeless in Long Beach, and often used methamphetamine. When arrested, Kuhnke usually provided the false names, “John Rustin” and “Jonathan Rustin” to the police.

Kuhnke further testified that on one occasion, he and Zirpel were passengers in a Camaro driven by someone he knew as “Joe the Plumber,” who offered to sell it to them for $1,500. According to Kuhnke, Joe the Plumber said, “I killed a girl and buried her” in the hills or the woods. Sometime later, after fleeing from the car, Kuhnke was arrested. Kuhnke did not relate Joe the Plumber's statement to anyone else, including investigating detectives, because “[he] was so freaked out” by it, and he “wanted away from [Joe the Plumber] as quickly as possible.” Soon afterward, he and Zirpel moved to Wisconsin, where he “reclaimed [his] life” and eventually became a Christian pastor. Kuhnke stated that the remark “changed [his] life.” At trial, Kuhnke was unable to identify appellant as “Joe the Plumber.”

In connection with the grand jury proceeding, Detective Davis obtained a court order permitting the monitoring of appellant's phone. Before and after appellant's niece testified in the grand jury proceeding, appellant and an unidentified male engaged in recorded phone conversations. During the conversations, the pair discussed questions to the niece during the proceeding regarding her visits to Azusa Canyon with appellant. Appellant said, “Everybody ... knows where Azusa Canyon is.... [H]ell, I got more pussy in Azusa Canyon than....” He also said, “[T]hey were asking her about ... we ever went up to ... the lake ... in Azusa Canyon but hell, I've been up there a hundred thousand times, ... it was a hang out place, it was a party place.”

In 2012, DNA testing disclosed that the bloodstains on the mat and cup holder from the Camaro's trunk were mixtures, consistent with at least two contributors. Jones's DNA matched the profile of the major contributor to the mixture found on the mat, and appellant was included as a possible minor contributor to that mixture. Jones and appellant were also possible contributors to the mixture on the cup holder. The methods used to conduct the analyses were unavailable in the 80's.

At trial, DNA expert Tiffany Shew testified regarding the “random match probability” of the potential contributors to the bloodstains. Under that measure, which relies on ratios, the probability of a match increases with the denominator of the ratio. For Jones, the random match probabilities regarding the mixtures on the mat and the cup holder were one in 18,000,000,000 and one in 742,000, respectively. According to Shew, it was “highly probable” that Jones contributed to the bloodstains on the mat and the cupholder. For appellant, the analogous random match probabilities were one in 2,237 and one in 4,312. Shew stated that appellant could not be excluded as a contributor to the bloodstains.

B. Defense Evidence

Gineen Bertram testified that in 1985, she lived in her mother's apartment in Long Beach, and was a heavy user of methamphetamine. She and her boyfriend David Metcalf knew appellant. According to Bertram, in April 1985, appellant once stayed overnight in her apartment. That evening, she and Metcalf went out drinking and picked up appellant, who was their drug supplier; the three then went to her apartment, where they spent the night doing drugs. Appellant left the apartment “a couple of times” to obtain more drugs. She stated: “[H]e just left and came back. There was no big hurry.”

Mary Volpe testified that in 1985, she was a drug user and knew appellant, whom she then called “Plumber Joe.” In April 1985, appellant once talked to Volpe's boyfriend regarding buying or selling a blue Camaro that appellant was driving. Volpe testified that appellant associated with a Black male who was “a big dude.” She did not know appellant to carry a knife.

DISCUSSION

Appellant contends (1) that the trial court erred in declining to dismiss the underlying action, (2) that the evidence of his prior sexual assault on Tulach was improperly admitted, (3) that there was insufficient evidence to support his conviction, and (4) that his defense counsel rendered ineffective assistance. As explained below, we reject his contentions, with the exception of his challenge to the special circumstance finding that the murder was committed during the commission, or attempted commission, of a kidnapping.A. Propriety of Underlying Action

Appellant maintains that under the double jeopardy clause of the United States Constitution and section 654, the trial court was obliged to dismiss the underlying action, in view of his 1986 conviction for receiving Jones's stolen Camaro. Because the double jeopardy clause and section 654 support distinct claims regarding multiple prosecutions, we address them separately. (In re Dennis B. (1976) 18 Cal.3d 687, 691 [135 Cal.Rptr. 82, 557 P.2d 514](Dennis B . ).)

1. Double Jeopardy

We begin with appellant's contention predicated on double jeopardy. Generally, the double jeopardy clause of the United States Constitution operates as a restraint on prosecutors and the courts. (People v. Fields (1996) 13 Cal.4th 289, 298–299 [52 Cal.Rptr.2d 282, 914 P.2d 832].) “The double jeopardy proscription ... protects persons from being consecutively charged with violation of the same law or violation of laws so related that conduct prohibited by one statute is necessarily included within conduct prohibited by the other.” (Dennis B ., supra, 18 Cal.3d at p. 691, 135 Cal.Rptr. 82, 557 P.2d 514.) The “appropriate yardstick” for that determination is the so-called “elements test,” which is based on a statutory comparison of the crimes. (Scott, supra, 83 Cal.App.4th at pp. 795–796, 100 Cal.Rptr.2d 70 ; People v. Kelley (1997) 52 Cal.App.4th 568, 576 [for purposes of assessing existence of double jeopardy, the test “is whether each offense contains an element the other does not”].)

Under the elements test, appellant's conviction for receiving stolen property was separate and independent from the murder charged against him in the underlying prosecution. That charge was tried on theories of premeditated murder and felony murder predicated on the commission, or attempted commission, of kidnapping, robbery, and rape. Each theory constitutes a distinct offense, for purposes of double jeopardy. (See People v. Wilson (1996) 43 Cal.App.4th 839, 848–849 [under double jeopardy clause, premeditated murder and felony murder are different crimes]; People v. Massie (1998) 19 Cal.4th 550, 572–573 [79 Cal.Rptr.2d 816, 967 P.2d 29][under double jeopardy clause, predicate felony is element of felony murder].) None of the theories is a lesser included offense of receiving stolen property, as each requires a killing. Conversely, receiving stolen property is included within none of those theories. An item of stolen property is not required for them, with the exception of felony murder based on robbery, and it is otherwise well established that receiving stolen property is not a lesser included offense of robbery (People v. Mora (1956) 139 Cal.App.2d 266, 274 ). In sum, the double jeopardy clause of the United States Constitution did not bar the underlying action.

2. Section 654

We turn to appellant's contention predicated on section 654. As elaborated below (see pt. A.2.c., post ), that contention relies primarily on the evidence available to the prosecution in 1985, as well as the prosecution's concession before the trial court that in 1985, there was probable cause to have charged appellant with Jones's murder. Appellant maintains that the prosecution's failure to do so mandated the dismissal of the underlying action.

a. Governing Principles

As explained in Kellett v. Superior Court (1966) 63 Cal.2d 822, 825–826 [48 Cal.Rptr. 366, 409 P.2d 206] (Kellett ), in addition to circumscribing multiple punishments, section 654 establishes an independent rule regarding multiple prosecutions. Under that rule, “[w]hen ... 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 joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (Id . at p. 827, 48 Cal.Rptr. 366, 409 P.2d 206.) The purpose of the rule is to deter “needless harassment and the waste of public funds....” (Ibid . )

The rule is subject to a so-called “unavailable evidence” exception traceable to double jeopardy principles. (People v. Witcraft (2011) 201 Cal.App.4th 659, 671 .) Generally, the double jeopardy proscription is inapplicable when the prosecution “ ‘is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.’ ” (People v. Scott (1997) 15 Cal.4th 1188, 1202 [65 Cal.Rptr.2d 240, 939 P.2d 354], quoting Grady v. Corbin (1990) 495 U.S. 508, 516, fn. 7 [109 L.Ed.2d 548, 110 S.Ct. 2084], overruled on other grounds in United States v. Dixon (1993) 509 U.S. 688, 712, 113 S.Ct. 2849 .)

In Davis, supra, 36 Cal.4th at page 558, 31 Cal.Rptr.3d 96, 115 P.3d 417, our Supreme Court held that the rule regarding multiple prosecutions in section 654 is subject to that exception. There, the defendant commandeered a car using a gun, kidnapped the driver, and took his belongings and car. (Davis, supra, at p. 518, 31 Cal.Rptr.3d 96, 115 P.3d 417.) The defendant was later arrested while driving the car. (Ibid . ) After the incident, the victim was unable to identify the defendant as the perpetrator, and the defendant pleaded guilty to a misdemeanor charge of taking a motor vehicle. (Id . at p. 558, 31 Cal.Rptr.3d 96, 115 P.3d 417.) Later, after serving a sentence for that crime, the defendant told a third party how he had obtained the car. (Ibid . ) As a result, he was prosecuted for robbery and kidnapping. (Id . at p. 556, 31 Cal.Rptr.3d 96, 115 P.3d 417.) Applying the “unavailable evidence” exception, the Supreme Court held that section 654 did not bar that action, concluding that at the time of the defendant's initial conviction, neither the victim nor any other witness could have established that he had kidnapped and robbed the victim. (Davis, supra, at p. 558, 31 Cal.Rptr.3d 96, 115 P.3d 417.)

Here, we confront an issue regarding the “unavailable evidence” exception not addressed in Davis, namely, the quantum of evidence constituting the prosecution's possession of “facts necessary to sustain [the charge].” As noted above, the exception is triggered only when the prosecution, despite due diligence, first acquires facts of that kind after the initial conviction. Appellant argues that the exception was not triggered because in 1985, when the prosecution charged appellant with receiving stolen property, it had “all the facts necessary to sustain a murder conviction.” In support, he cites the prosecution's acknowledgment that once Jones's body was discovered, there was probable cause to charge him with murder.

The issue before us thus implicates the prosecution's discretion regarding the charging of crimes. The prosecution may not charge a crime without “probable cause,” that is, evidence supporting a reasonable suspicion that the defendant committed the crime. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 473 [62 Cal.Rptr. 581, 432 P.2d 197].) That showing “need not be sufficient to support a conviction.” (Ibid . ) However, when the prosecution has probable cause to charge a crime, the decision to do so is a matter of prosecutorial discretion. (Valli, supra, 187 Cal.App.4th at p. 801, 114 Cal.Rptr.3d 335.) As our Supreme Court has explained, notwithstanding the constitutional guarantees of due process and a speedy trial, “[a] court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges.” “ ‘Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt.... A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.’ ” (People v. Nelson (2008) 43 Cal.4th 1242, 1256 [78 Cal.Rptr.3d 69, 185 P.3d 49] (Nelson ), quoting People v. Dunn–Gonzalez (1996) 47 Cal.App.4th 899, 914, 915 .)

b. Underlying Proceedings

At the preliminary hearing in the underlying action, the prosecution presented evidence similar to that later admitted at trial, although it offered no DNA evidence or testimony from Kuhnke regarding the remarks he heard by “Joe the Plumber” in 1985. Prior to trial, appellant filed a motion to dismiss the action under section 654, contending that at the time of his conviction for receiving stolen property, “the prosecution was or should have been aware [of] the instant case.”

The prosecution's opposition relied on the “unavailable evidence” exception set forth in Davis, stating: “[T]he various agencies involved in the disappearance and murder of ... Jones acted with due diligence. By the time Jones'[s] body was found ..., there was no doubt probable cause to arrest [appellant] for Jones'[s] murder. Additionally, there was sufficient evidence to charge [him].... However, despite the best efforts of investigators from three different agencies, sufficient evidence had not been developed to meet the prosecution's burden at trial—proof beyond a reasonable doubt.” The prosecution maintained that following appellant's conviction for receiving stolen property, three critical items of evidence had been acquired: appellant's 2009 interviews, which conflicted with his earlier accounts of the relevant events; appellant's 2010 phone conversations regarding his familiarity with Azusa Canyon as a place for getting “pussy”; and the results of the DNA testing regarding the contributors to the bloodstains on the items in the Camaro's trunk.At the pretrial hearing on appellant's motion, the trial court considered the testimony from the preliminary hearing and the then-available results of the DNA testing. In denying the motion, the court concluded that after 2008, the prosecution acquired “new evidence ... [n]ot triggered by a failure to investigate the first time” that supported “an objectively reasonable belief of the probability of a conviction” by a jury applying the beyond-a-reasonable-doubt standard of proof. The court stated that appellant's 2009 interviews raised the reasonable inference that he lied to investigators in 1985, as they “completely contradict[ed]” some of his prior statements; in addition, the court stated that the 2010 phone conversations disclosed appellant's familiarity with Azusa Canyon as a place to “have sex.” The court acknowledged that the DNA testing did not conclusively establish that appellant contributed to the bloodstains on the items in the Camaro's trunk, but noted that the testing represented “new technology.”c. Analysis

As explained below, we discern no error in the trial court's ruling. To the extent appellant challenges the court's determinations of law regarding the application of the “unavailable evidence” exception, we examine those determinations de novo. (See In re R.L. (2009) 170 Cal.App.4th 1339, 1343, fn. 4 .) To the extent appellant challenges the court's factual determinations relating to the exception, we review those determinations for the existence of substantial evidence. (Davis, supra, 36 Cal.4th at p. 558, 31 Cal.Rptr.3d 96, 115 P.3d 417 ; Barriga v. Superior Court (2012) 206 Cal.App.4th 739, 748 .)

Our research has disclosed no decision addressing the court's key legal determination, namely, that the exception applies when the prosecution exercised due diligence in its investigation and had probable cause to charge a defendant with murder in conjunction with a closely related crime, but deferred filing the murder charge until it acquired evidence supporting the objectively reasonable belief that it could sustain a murder conviction. Nonetheless, we find guidance from United States v. Stearns (9th Cir.1983) 707 F.2d 391 (Stearns ).

Although Stearns addressed a claim of double jeopardy, our Supreme Court cited Stearns with approval in holding that the rule regarding multiple prosecutions under section 654 is subject to the “unavailable evidence” exception to the double jeopardy proscription. (Davis, supra, 36 Cal.4th at p. 558, 31 Cal.Rptr.3d 96, 115 P.3d 417.) In Stearns, a married couple disappeared in 1974 after anchoring their yacht in the lagoon of an uninhabited atoll. (Stearns, supra, 707 F.2d at p. 392.) Several months later, the yacht was discovered in the possession of the defendants, who had repainted it and registered it under a new name. (Ibid . ) Following their arrest, they claimed that the married couple had drowned, and offered conflicting explanations regarding how they acquired the yacht. (Ibid . ) Suspecting foul play, investigators searched the atoll and lagoon, but found no evidence regarding the married couple's fate. (Id . at p. 394.) In 1981, after the defendants had been convicted of theft, the missing woman's skull and a box containing one of her bones were discovered underwater near the atoll, and tests revealed that her bones had been subjected to “high temperatures.” (Id . at p. 392.) The defendants were thereafter charged with felony murder. (Ibid . ) After the trial court denied the defendants' motion to dismiss the action on the basis of double jeopardy, the Ninth Circuit determined that the “unavailable evidence” exception was applicable because the prosecution had exercised due diligence in its early investigation. (Id . at p. 394.) In so concluding, the Ninth Circuit stated that due diligence did not require the use of “extraordinary” methods: “A more thorough search may have been possible.... A complete search of the lagoon, however, would have required ... an extraordinary amount of time, effort, and money.” (Ibid . )

Stearns is instructive regarding the relationship between the “unavailable evidence” exception and prosecutorial discretion regarding the charging of crimes. Its analysis reflects a determination that the prosecution's having possession of facts raising a suspicion of “foul play” prior to the defendants' initial convictions did not bar the application of the exception. In addition, it reflects a determination that the prosecution's delay in obtaining evidence reasonably likely to sustain a murder conviction did not preclude the exception's application, as the prosecution displayed ordinary diligence in its initial investigation. We agree with the trial court that for purposes of applying the “unavailable evidence” exception to the rule in section 654, the prosecution first possesses “facts necessary to sustain [the] charge” when it secures evidence supporting the objectively reasonable belief that it “ ‘will be able to promptly establish guilt beyond a reasonable doubt’ ” (Nelson, supra, 43 Cal.4th at p. 1256, 78 Cal.Rptr.3d 69, 185 P.3d 49 ). Thus, the exception 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. To hold otherwise would be to encourage prosecutors to overcharge—by filing charges they lacked an objectively reasonable basis to believe would result in conviction—thus improperly cabining the prosecutorial discretion that is a basic element of the criminal justice system.

That discretion is not unlimited. In the relatively few cases where the “unavailable evidence” exception is invoked, the court must decide whether the exercise of prosecutorial discretion not to have pursued the later filed charges was reasonable. For the reasons we next discuss, we discern no error in the trial court's determination that the evidence supporting an objectively reasonable belief that appellant would be convicted of Jones's murder was not within the prosecution's possession in 1985 and could not have been obtained despite due diligence. Appellant contends the prosecution acquires “facts necessary to sustain [the charge]” when it obtains evidence sufficient to support a determination of guilt on appeal, that is, when it has substantial evidence of guilt, for purposes of appellate review. We disagree. As noted above, the focus of the prosecution's assessment is whether it “ ‘will be able to promptly establish guilt beyond a reasonable doubt’ ” at trial . (Nelson, supra, 43 Cal.4th at p. 1256, 78 Cal.Rptr.3d 69, 185 P.3d 49.) In a criminal proceeding, “ ‘ “[t]he functions of the jury include the determination of the credibility of witnesses, the weighing of the evidence, and the drawing of justifiable inferences of fact from proven facts.” ’ ” (People v. Ross (1953) 120 Cal.App.2d 882, 886 , quoting Curley v. U.S. (1947) [160 F.2d 229, 232].) In contrast, on review for the existence of substantial evidence, appellate courts “determine, without reweighing the evidence, whether there was sufficient evidence to permit a rational jury to convict.” (People v. Salgado (2001) 88 Cal.App.4th 5, 15 .) Accordingly, the prosecution, in determining whether its evidence will sustain a charge at trial, must assess the weight of that evidence, a consideration not implicated in appellate review. We decline to construe the “unavailable evidence” exception to impose upon the prosecution a yardstick for assessing evidence fundamentally unrelated to the exercise of prosecutorial discretion regarding the charging of crimes.

Applying the “objectively reasonable belief” standard above, we conclude that the trial court did not err in finding that the exception, so understood, was applicable in the underlying action. In 1985, prior to appellant's conviction for receiving stolen property, the prosecution had evidence establishing “probable cause” regarding Jones's murder, that is, evidence supporting a reasonable suspicion that appellant committed the crime. That evidence was provided by appellant's abrupt departure from the Pacific Holiday Towers at approximately the time Jones left Carcamo's apartment, appellant's possession of the Camaro shortly after her disappearance, and his subsequent conduct, including his flight from investigating officers prior to his arrest. In addition, appellant's prior sexual assault potentially linked him to Jones's murder, as there was evidence that she had been sexually assaulted.

Nonetheless, despite diligent investigation, the prosecution lacked evidence regarding certain key issues, namely, when Jones was murdered, why she was taken to Azusa Canyon, and how and when she was taken there. That evidence was required to rebut appellant's theory that someone else—for example, Brummet—kidnapped Jones, gave her car to Sean, and murdered her. Those gaps in the prosecution's evidence were filled after 2008.

The trial court reasonably concluded that the newly developed evidence was not the result of a prior failure of due diligence. In December 2008, Jones's murder was assigned to Detective Davis, who reinvestigated “cold cases.” The initial items of new evidence that Davis developed could not have been obtained prior to appellant's conviction for receiving stolen goods, namely, appellant's 2009 accounts of his acquisition of Jones's car, which differed materially from the accounts he provided in 1985 and 1986. After obtaining that evidence, Davis also sought DNA testing, which appellant does not dispute represented “new technology,” and which strongly suggested that Jones and appellant contributed to the bloodstains on the items found in the Camaro's trunk. Moreover, Davis secured appellant's 2010 recorded phone conversations, in which he revealed his familiarity with Azusa Canyon as a place for having sex. As those conversations were directly prompted by the 2010 grand jury proceeding, nothing before us suggests that a similar wiretap in 1985 or 1986 would have produced that evidence.

The newly acquired evidence provided concrete support for the theory that appellant murdered Jones in Azusa Canyon on the morning of April 29, 1985, just hours before he displayed the Camaro to Perry, his common law wife. To begin, the evidence showed that in all likelihood, Jones was transported while alive to Azusa Canyon in the Camaro's trunk on that morning. Although the DNA evidence itself did not conclusively identify appellant as the murderer, it strongly suggested that Jones had contributed to the bloodstains on the items from the Camaro's trunk, and thus rendered it likely that she had been transported to Azusa Canyon in the trunk. Furthermore, she probably was alive before arriving there, as she died of neck wounds inflicted by a knife or similar weapon, yet the trunk disclosed little blood. In view of other evidence that appellant openly drove the Camaro from the time he displayed it to Perry until his arrest, the DNA evidence showed that Jones probably died before Perry first saw the car.

The newly acquired evidence also placed the spotlight on appellant as Jones's murderer. The 2009 interviews supported the reasonable inference that appellant had lied in 1985 regarding how he obtained the Camaro. From 1985 to 1987, appellant maintained he obtained the car from Sean, an acquaintance he encountered on the street on the morning of April 29. He attributed Jones's death and the theft of her car to Brummet, with whom he claimed to have an antagonistic relationship, and posited that Brummet had “set him up” for the murder. In contrast, in 2009, appellant said he did not receive the car until the evening of April 29, that a “big black dude” brought the car to his attention, and that the transfer took place in a garage. Further contradicting his earlier statements, he claimed that he intended to sell the car to Brummet, with whom he enjoyed an essentially good relationship. Furthermore, appellant's unsolicited statements recorded in the 2010 phone conversation supported the reasonable inference that appellant took Jones to Azusa Canyon because it was a place he went to have sex. The new evidence thus provided material support for the theory that appellant committed the murder.Appellant contends that in 1985, the prosecution possessed evidence sufficient to sustain a murder conviction against him. Aside from the facts discussed above, he relies on certain remarks he made when arrested, namely, that he did not kill “that girl” or “anyone.” He argues that his flight from police officers prior to his arrest showed a “consciousness of guilt,” and that his remarks upon arrest demonstrated knowledge of Jones's death before the discovery of her body. However, viewed in context, those items of evidence supported no compelling inference that he murdered Jones. Prior to appellant's conviction for receiving stolen property, the prosecution knew that appellant claimed to have been aware that the Camaro was stolen when he obtained it from Sean. For that reason, a jury was likely to regard appellant's flight as manifesting only his awareness that he had received stolen goods. In addition, the prosecution was aware that prior to appellant's arrest, he had talked to Perry, who then knew from her own arrest that there was an investigation into the potential murder of the girl who owned the Camaro. A jury was thus likely to concluded that appellant's prearrest contact with Perry nullified the inference that he knew of a potential murder only because he was the murderer. Accordingly, in 1985, the prosecution reasonably concluded that appellant's flight and remarks would not result in a murder conviction.

Appellant also contends that in 1985, the prosecution did not exercise due diligence in investigating Jones's murder because it could have, but failed, to secure Kuhnke's evidence regarding Joe the Plumber's remark that he had killed a girl. Pointing to a police report regarding Kuhnke's arrest, appellant maintains that officers never adequately questioned Kuhnke regarding the stolen Camaro. The report states that upon arrest, Kuhnke and Zirpel “denied knowledge of the car being stolen until confronted by [Carcamo]. They then became suspicious and fled.” To show that Kuhnke never was interrogated or queried, appellant relies on the report, which states that on May 2, 1985, when booked, Kuhnke and Zirpel “were not questioned about the stolen car, but ... made several voluntary statements.”

The record does not establish that the prosecution failed to obtain Kuhnke's evidence in 1985 due to a lack of diligence. In fact, the record shows that Kuhnke was interviewed by two different officers—Officer Chastain and Detective Maclyman—after his arrest, and that Maclyman's interview with Kuhnke took place on May 3, 1985, after Kuhnke was booked. Furthermore, Kuhnke's testimony established that in 1985, it was unlikely he would have disclosed the remark, regardless of how he was questioned. In addition to Kuhnke's admission that he then often lied to police to protect himself, he explained that he had not revealed the remark to the investigating detectives or anyone else because it “freaked [him] out” and he just “wanted away from him as quickly as possible.” Indeed, shortly thereafter he moved to Wisconsin. According to Kuhnke, the remark triggered a change in his life, and “scared [him] straight.”Appellant further suggests that the prosecution failed to secure three other items of evidence in 1985 for want of diligence. He argues (1) that it was not until 2009 that investigating officers learned from Perry that appellant often carried a knife, even though they interviewed her in 1985, and (2) that in 1985, appellant's knowledge of the Azusa Canyon area could have been discovered through a search of public records or a wiretap. Although appellant does not dispute that the DNA evidence submitted at trial was unavailable in 1985, he also argues (3) that certain tests then possible might have established that the bloodstains on the items found in the Camaro's trunk were “consistent” with his blood. We reject these contentions. Because knives are common and easily acquired, appellant's possession of a knife would not have materially enhanced the evidence available in 1985, had the prosecution then known that fact. Furthermore, it is speculation that in 1985, the prosecution had sufficient legal basis to obtain a wiretap, and that such a wiretap—or public records—would have disclosed the salient information obtained in 2010, namely, that appellant knew Azusa Canyon as a place to have sex. Finally, nothing in the record shows that the blood tests specified by appellant would have identified him—or Jones—in any meaningful way as a contributor to the bloodstains. In sum, the trial court did not err in denying appellant's motion under section 654 to dismiss the underlying action.

B. Admission of Tulach's Testimony

Appellant contends that the trial court erred in admitting Tulach's testimony under Evidence Code section 1108. For the reasons explained below, we reject the contention.

1. Governing Principles

Subdivision (a) of Evidence Code section 1108 provides that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352.” Subdivision (d)(1)(A) of Evidence Code section 1108 defines “[s]exual offense” to include rape (Pen.Code, § 261 ). Evidence of an uncharged sexual offense is admissible under Evidence Code section 1108. (People v. Reliford (2003) 29 Cal.4th 1007, 1009 [130 Cal.Rptr.2d 254, 62 P.3d 601].)

In determining whether to admit Tulach's testimony under Evidence Code sections 1108 and 352, the trial court was obliged to consider “its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the [trier of fact] ..., its similarity to the charged offense, its likely prejudicial impact on the [trier of fact], the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission.... [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 917 [89 Cal.Rptr.2d 847, 986 P.2d 182].) The court's ruling is reviewed for an abuse of discretion. (People v. Wesson (2006) 138 Cal.App.4th 959, 969 .)

“[T]he Legislature's principal justification for adopting [Evidence Code] section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. [Evidence Code s]ection 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes. [Citation.]” (People v. Falsetta, supra, 21 Cal.4th at p. 915, 89 Cal.Rptr.2d 847, 986 P.2d 182.)

Evidence Code Section 1108 marks a departure from Evidence Code section 1101, which limits the admission of prior criminal conduct. As our Supreme Court has explained, “[b]efore [Evidence Code] section 1108 was enacted, Evidence Code section 1101 governed the admission of prior criminal conduct, and a body of law developed concerning how similar the prior conduct had to be to the charged crime; the required degree of similarity varied depending on the use for which the evidence was offered. [Citation.] ‘All of that radically changed with respect to sex crime prosecutions with the advent of section 1108.... [Evidence Code s]ection 1108 now “permit[s] the jury in sex offense ... cases to consider evidence of prior offenses for any relevant purpose” [citation] subject only to the prejudicial effect versus probative value weighing process required by [Evidence Code] section 352.’ [Citation.] ‘In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.’ [Citation.] Or, as another court put it, ‘[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.’ [Citation.]” (People v. Loy (2011) 52 Cal.4th 46, 63 [127 Cal.Rptr.3d 679, 254 P.3d 980] (Loy ).)

2. Underlying Proceedings

Prior to trial, the prosecution sought leave to present testimony from Tulach regarding the 1974 incident, during which appellant entered her apartment at night, touched her breast and thigh, and said that he wanted “her,” rather than money. In opposing the request, appellant maintained that the 1974 incident was insufficiently similar to Jones's murder, relying in part on decisions predating the enactment of Evidence Code section 1108.

The court concluded that Tulach's testimony was admissible under Evidence Code section 1108, subject to certain restrictions intended to limit potential prejudice to appellant. The court determined that Tulach's testimony was “highly probative” regarding a central issue, namely whether appellant raped or attempted to rape, Jones. Furthermore, to the extent the prosecution sought to admit the evidence to resolve that issue, the court concluded the 1974 incident was not overly remote, and there was no substantial danger of undue prejudice. Nonetheless, the court determined that the 1974 incident was inadmissible regarding another “bottom line” issue, namely, the identity of Jones's assailant. To preclude prejudice to appellant, the court stated that it would give a jury instruction specifying the issues for which Tulach's testimony could be considered.

Following the presentation of evidence at trial, the court instructed the jury with a modified version of CALCRIM No. 1191, which stated that if the jury found appellant had committed the uncharged crimes in 1974, it was permitted, but not required, to conclude that appellant acted with the intent to commit felony murder predicated on rape, had a scheme or plan to do so, or was disposed or inclined to commit sexual offenses.

3. Analysis

Appellant's principal contention is that the trial court erred in admitting Tulach's testimony because the 1974 incident was too dissimilar, and too remote in time, from Jones's murder. We disagree.

In People v. Robertson (2012) 208 Cal.App.4th 965, 970 , the defendant was charged with kidnap for rape and related offenses. The evidence at trial showed that in 2009, the defendant lured his victim into a garage, locked it, and sexually assaulted her. (Id . at pp. 972–973, 146 Cal.Rptr.3d 66.) The court also admitted evidence under Evidence Code section 1108 that approximately 34 years earlier, in 1974, the defendant committed a rape and kidnapping. (People v. Robertson, supra, 208 Cal.App.4th at pp. 987–988, 992, 146 Cal.Rptr.3d 66.) During that incident, the defendant picked up a hitchhiker, drove her to an isolated field, and raped her. (Ibid . ) In affirming the admission of the 1974 incident, the appellate court rejected a contention that the prior incident was too remote, stating that “ ‘ “substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses.” ’ ” (Id . at p. 992, 146 Cal.Rptr.3d 66.) Applying that standard, the appellate court determined that the similarities between the 1974 and 2009 crimes were sufficient to support the trial court's ruling. (Id . at pp. 992–994, 146 Cal.Rptr.3d 66.)

We reach the same conclusion here. During each incident, appellant attacked a woman and took action to isolate his victim. Furthermore, each incident commenced in the early morning, and took place in, or otherwise involved, the same area of Long Beach. In view of those similarities, the trial court did not err in admitting evidence of the 1974 incident, even though it occurred 11 years prior to the crimes charged against appellant in the instant case.

Appellant also contends that the court erred in admitting the 1974 incident under Evidence Code section 1108 because there was little other evidence that Jones was, in fact, subject to a sexual assault, or attempted sexual assault, aside from her lack of clothing when discovered. He argues that “evidence that the defendant committed other sex crimes is not admissible under [Evidence Code] section 1108 unless, independent of that evidence, there is sufficient evidence to prove that a sexual act occurred in the current case.” For the reasons discussed in the unpublished portion of this opinion, the 1974 incident was properly admitted to resolve the key issue regarding a sexual offense presented at trial, namely, whether appellant, in attacking Jones, acted with intent to commit a rape (see pt. C.2., post ).

Nothing in Evidence Code section 1108 suggests that prior sexual misconduct is admissible only if there is sufficient independent evidence that the currently charged sex crime actually involved a “sex act.” On the contrary, the statute authorizes the admission of such misconduct in criminal actions in which the defendant is “accused” of enumerated sexual offenses, including attempted rape and other attempted sex crimes. (Evid.Code, § 1108, subds. (a), (d)(1)(A), (d)(1)(F).) Evidence Code section 1108 thus permits the admission of prior sexual misconduct to establish charged offenses that require no accomplished “sex act,” such as attempted rape (People v. Clark (2011) 52 Cal.4th 856, 948 [131 Cal.Rptr.3d 225, 261 P.3d 243] [attempted rape requires only conduct exceeding mere preparation showing that defendant put plan into action] ).Furthermore, under the circumstances presented here, the trial court did not err in admitting appellant's prior sexual misconduct. Evidence Code section 1108 authorizes the trial court to admit such misconduct “ ‘for any relevant purpose, ’ ” without engaging in the purpose-specific analysis required under Evidence Code section 1101. (Loy, supra, 52 Cal.4th at p. 63, 127 Cal.Rptr.3d 679, 254 P.3d 980, quoting People v. James (2000) 81 Cal.App.4th 1343, 1353, fn. 7 , disapproved on another ground in Loy, supra, 52 Cal.4th at pp. 73–74, 127 Cal.Rptr.3d 679, 254 P.3d 980.) Under the latter statute, the target purpose dictates the degree of similarity between prior and current offenses required for admissibility. “The least degree of similarity ... is required in order to prove intent.” ( People v . Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757].) In contrast, “[t]he greatest degree of similarity is required ... to prove identity.” (Id . at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

Although the trial court admitted the 1974 incident under Evidence Code section 1108, its carefully considered ruling was informed by Evidence Code section 1101, as the court referred to the stringent standard for proof of identity under the latter statute in limiting the use of the 1974 incident. Under Evidence Code section 1101, evidence of a prior sexual offense is admissible to show that the defendant's conduct underlying the currently charged sexual offense was, in fact, performed with the requisite sexual intent. In People v. Daniels (2009) 176 Cal.App.4th 304 (Daniels ), the defendant was charged with kidnapping for rape. At trial, the evidence showed that in 2005, the defendant encountered his intoxicated and essentially unconscious victim outside a bar and transported her to his motel room, where he placed her on the bed. (Id . at pp. 308–309, 97 Cal.Rptr.3d 659.) Soon after, she awoke and fled. (Id . at p. 309, 97 Cal.Rptr.3d 659.) Under Evidence Code section 1101, the prosecution was permitted to establish that in 1990, the defendant committed a rape after breaking into his victim's house. In affirming the defendant's conviction, the appellate court held that the 1990 rape had been properly admitted under Evidence Code section 1101, concluding that “[t]he 1990 events and the 2005 events were sufficiently similar to support an inference that defendant acted with the same intent on both occasions.” (Daniels, supra, 176 Cal.App.4th at p. 315, 97 Cal.Rptr.3d 659.)

Although Daniels examined the application of Evidence Code section 1101, its holding establishes the propriety of the trial court's ruling under Evidence section 1108. Daniels demonstrates that Evidence Code section 1101 permits the admission of prior sexual misconduct to show the defendant's sexual intent with respect to the charged offense. In our view, because Evidence Code section 1108 was intended to enhance the admissibility of prior misconduct when sexual offenses are charged, the same is true for that section. Accordingly, the trial court did not err in admitting the 1974 incident to establish appellant's intent, and thereby show that his acts were, in fact, a sexual assault, or attempted sexual assault. (See also People v. Wilson (2008) 166 Cal.App.4th 1034, 1043–1054 [under Evidence Code, §§ 1101, 1108, trial court properly instructed jury that it could consider defendant's demonstrated sexual misconduct to establish his intent regarding other charged sex crimes].)

Appellant contends the trial court improperly assessed the potential for prejudice under Evidence Code section 352, arguing that evidence of the uncharged crimes was prejudicial in light of the jury instructions. The trial court instructed the jury with a modified version of CALCRIM No. 1191, which stated that if the jury found appellant had committed the uncharged crimes in 1974, it was permitted, but not required, to conclude that appellant acted with the intent to commit felony murder predicated on rape, had a scheme or plan to do so, or was disposed or inclined to commit sexual offenses. Appellant argues that the instruction permitted the jury to consider the evidence for an improper purpose, namely, to determinethe identity of Jones's assailant. We disagree.

CALCRIM No. 1191, as provided to the jury, stated: “If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder or that the rape special circumstance is true. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purpose as stated above.” (Italics added.) Accordingly, the instruction, viewed as a whole, directed the jury to look at the other trial evidence to determine whether appellant was Jones's assailant before determining his culpability under a felony murder theory predicated on rape. We presume the jury followed the instruction. (People v. Delgado (1993) 5 Cal.4th 312, 331 [19 Cal.Rptr.2d 529, 851 P.2d 811].) In sum, Tulach's testimony was properly admitted.

C.–D. DISPOSITION

The special circumstance finding that the murder was committed during the commission, or attempted commission, of a kidnapping is ordered stricken, and the judgment, so modified, is affirmed in all other respects.

Epstein, P. J., and Willhite, J., concurred.