Almost three years after the movie distribution executive disappeared, John Creech was indicted today on a single count of capital murder for Gavin Smith’s death. A superseding Grand Jury indictment was unsealed Wednesday that charges the already behind bars Creech with the special circumstance of lying in wait in the May 2, 2012 murder of the Fox exec. Those special circumstances make the defendant, who is in jail on an 8-year stretch for unrelated drug charges, eligible for the death penalty, the L.A. County District Attorney’s office said today.

“Prosecutors will decide later whether to seek death or life in prison without the possibility of parole,” the D.A.’s office added Wednesday. As announced back on January 29, when Creech was charged with a now dismissed criminal murder charge, Deputy DA Bobby Grace with the Major Crimes Division will be prosecuting the case. Creech pleaded not guilty to the capitol murder charge in court today before L.A. County Superior Court Judge James Brandlin. A pretrial hearing is next set for April 27.

The 57-year-old studio exec went missing late on the evening of May 1, 2012. Smith’s greatly deteriorated body was discovered on October 26 2014 in a grave in Angeles National Forest by hikers. The case of the almost 2-decade 20th Century Fox employee was declared a homicide in March 2013 after the former college basketball player’s black Mercedes 420E was found that February in a Simi Valley, CA storage locker. That locker belonged to one John Creech.

In jail at the time, Creech was declared the person of interest in the case by police. Convicted in September 2012 for his current stint behind bars, the suspect was not in jail at the time Smith disappeared. It was also known to law enforcement that Cheech and his wife knew Smith personally. The case was profiled on America’s Most Wanted in the fall of 2012. Gavin Smith was officially declared dead in May 2013.