Filed 8/18/20 P. v. Anthony CA2/4
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                           B295757

         Plaintiff and Respondent,                                    (Los Angeles County
                                                                       Super. Ct. No. MA061302)
         v.

DION ANTHONY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court for Los Angeles
County, Shannon Knight, Judge. Affirmed.
         Daniel G. Koryn, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, David E. Madeo and Thomas C. Hsieh, Deputy Attorneys
General, for Plaintiff and Respondent.
        Defendant Dion Anthony appeals from a judgment sentencing him
to 25 years to life in prison after a jury found him guilty of first degree
murder (Pen. Code,1 § 187, subd. (a)). He raises two issues on appeal.
First, he contends the trial court erred by denying his motion to dismiss
the information based upon the People’s failure to comply with the
Interstate Agreement on Detainers (§ 1389). Second, he contends the
court erred by admitting the preliminary hearing testimony of one of
the prosecution’s witnesses after finding that the prosecution exercised
due diligence in attempting to secure the witness’s presence at trial.
We conclude the record supports the trial court’s determinations as to
both issues. Accordingly, we affirm the judgment.


                               BACKGROUND
        In 2013, Lydia Castillo lived in a two-bedroom mobile home in
Lancaster. She was in a non-exclusive dating relationship with
defendant, whom she called Ace. Defendant lived in Colorado, but had
family (including two teenage sisters) in Lancaster and often visited the
area. One of those visits occurred in mid-June 2013.2 On the night of
June 18, Castillo and defendant spent the night at the home of
defendant’s great-aunt, Carolyn Walls. They left Walls’s home at
around noon on June 19.



1       Further undesignated statutory references are to the Penal Code.

2       Unless otherwise stated, further references to dates are to the year
2013.


                                        2
     The next morning, on June 20, defendant went to Walls’s house to
pick up his sisters, who were living there. He told Walls that he was
taking his sisters, by bus, to Colorado, and he asked Walls for money to
buy his sisters’ bus tickets. Although Walls gave him the money,
defendant drove his sisters to Colorado in Castillo’s car.


A.   Discovery of Castillo’s Body and Investigation
     Castillo was close to her younger sister, Rosalina Lozano, and the
two spoke almost every day. On the afternoon of June 19, Lozano
invited Castillo over to her home for dinner. Castillo declined, telling
Lozano that she was meeting with defendant. Over the next few days,
Lozano and other family members tried to contact Castillo, but were
unable to reach her. On June 23, Lozano and her stepfather, Pedro
Ramirez, went to Castillo’s home. Castillo’s car was missing and the
front door and security door were unlocked. Ramirez went inside, and
found Castillo’s body in her bedroom.
     Lozano called the police. When the deputy sheriffs arrived, they
found Castillo’s body, which showed signs of decomposition, on the floor
of the master bedroom. Her body was partially wrapped in a comforter
with small gold tassels, and there was a trail of similar tassels from the
living room, down the hallway, to the master bedroom. The door to the
other bedroom appeared to have been forced open recently; the door
jamb was shattered and there were wood splinters and chunks of wood
inside the room. The kitchen and china cabinet appeared to have been
ransacked, and Castillo’s large screen television, jewelry, and a
collection of Jack Daniel’s bottles were missing. After Castillo’s family

                                     3
members were interviewed, defendant was deemed a suspect in the
homicide.
      Information regarding Castillo’s missing car was entered into a
nationwide alert system. On June 25, Detective Ray Lugo, the
investigating officer, received a report that Castillo’s car had been
involved in a police pursuit in Englewood, Colorado, and that three
people were arrested; defendant was not one of the arrestees. Detective
Lugo flew to Colorado on June 27 and interviewed the three arrestees,
one of whom was Kahlil Phillips, who had been driving Castillo’s car
during the pursuit. According to Phillips, defendant told him the car
belonged to his fiancée, who was staying in defendant’s apartment, and
she gave defendant permission to let Phillips use it for a week to get to
and from work.3 Defendant told him “there’s a body on the car,”
meaning the car was connected to a death.
      An autopsy of Castillo’s body revealed that she had a fracture on
her lower lumbar vertebrae. The medical examiner testified that the
fracture could have been caused by a fall from a significant height, such
as from the second or third story of a building, a high fence, or a tree
(although there probably would be some broken bones accompanying
the injury in such a case, and they were not present in this case), or by
sustained pressure or force being applied to Castillo’s spine, such as by
someone putting a knee on her back while she was on her stomach and



3     Phillips could not be located at the time of trial, so his testimony from
the preliminary hearing was read to the jury.


                                        4
applying a lot of force. The medical examiner determined the cause of
death to be homicide by asphyxia.


B.   Defendant’s Admission to Tammie Huff
     Tammie Huff is defendant’s cousin. In November, she had a
conversation with her boyfriend (a police informant) that was secretly
recorded; the recording was played for the jury. During that
conversation, Huff said that defendant told her Castillo had given him a
disease and laughed about it. Defendant said that they fought, and
that he choked her with his belt until she could not breathe. He told
her that he took Castillo’s car to Denver and gave it to someone; he said
he told that person that he had “killed the bitch.” That person was
supposed to take the car to a chop shop but he got into a crash before he
made it to the chop shop.
     A week before the trial, the prosecutor interviewed Huff; a
recording of the interview was played for the jury. During the
interview, Huff at first denied repeatedly that she ever spoke with
defendant about Castillo’s murder. After being told there was a
recording of her, she ultimately admitted that defendant told her that
he strangled Castillo with a belt “[b]ecause she gave him something he
can’t get rid of” and laughed about it.
     At trial, Huff denied ever talking to defendant about Castillo’s
murder.




                                     5
C.   Defendant’s Testimony
     Defendant testified at trial as follows. He travelled to California
several times, and stayed with Castillo during some of those trips. He
and Castillo were intimate, but not exclusive. On June 19, he and
Castillo went to a bar. He had asked Castillo to get him some cocaine;
before they went into the bar she gave him what he thought was
cocaine, but Castillo told him sometime after he ingested it that it was
crystal methamphetamine. He had never taken crystal
methamphetamine before, and he began to panic.
     They eventually left the bar, and defendant drove them back to
Castillo’s home. Defendant was angry. Castillo tried to calm him down,
but he decided he wanted to leave and go to his girlfriend Brittany’s
house. He went into Castillo’s bedroom to gather his belongings.
Castillo was jealous and started arguing with him, telling him, “Go
ahead and go back to her. That’s why both of you guys have something
can’t get rid of now.” Defendant believed Castillo meant that she had
given him a sexually transmitted disease, and asked her what she had
given him. Castillo made light of it and said, “You’ll have to find out for
yourself.” Defendant was furious, and kicked his leg backward at the
door of the second bedroom, breaking it open, off its hinges. Castillo
grabbed onto defendant’s shirt to try to keep him from leaving, and
defendant forcefully pushed her away; she fell through the bathroom
doorway onto the floor. Castillo told defendant that she had hurt her
back. Defendant helped her get up and walked her into her bedroom.
He got her under the covers, gave her what he thought was pain



                                     6
medication (although it turned out to be Benadryl), and waited until
Castillo fell asleep.
      Because Castillo had made threats that her relatives would come
after defendant if he hurt her, defendant was worried that she would
call her family once she woke up. He believed that Castillo owned a
pistol, so he searched her home for it, but could not find it. He decided
to leave and take Castillo’s car. At first he thought he would just use it
to go to the bus station (he and his sisters were planning to take the bus
to Colorado) and leave the car there, but then he thought he should just
pick up his sisters and drive them all the way to Colorado. So, he took
Castillo’s television and jewelry so he could pawn them for gas money
along the way. He thought he would abandon the car once he and his
sisters got to Colorado so it could be found and returned to Castillo.
      After defendant arrived in Colorado, he found out from a news
report that Castillo had died. He was surprised because he did not
think he had hurt Castillo enough to have caused her death. He told
Phillips, whom he had met earlier, that there was a body on the car (by
which he meant it belonged to a deceased person), and that the police
might be looking for it. Phillips told him he knew of a chop shop, so
defendant told him he could take it there and keep the money he got for
the car.


D.    Closing Arguments, Verdict and Sentence
      The prosecution argued that defendant’s version of what
happened was inconsistent with the evidence presented and the injuries
Castillo suffered. Instead, he argued that defendant killed Castillo by

                                     7
kneeling on her back as he strangled her with his belt, as defendant
told Huff, and then ransacked her house looking for valuables. He
asked the jury to find defendant guilty of first degree murder.
     Defense counsel (who had conceded in his opening statement that
defendant had killed Castillo, but argued he was guilty only of
voluntary manslaughter) argued there was reasonable doubt that
defendant had killed Castillo, but even if the jury concluded otherwise,
the only appropriate verdict would be voluntary manslaughter.
     The jury found defendant guilty of murder in the first degree, and
the trial court sentenced him to a term of 25 years to life in prison.
Defendant timely filed a notice of appeal from the judgment.


                              DISCUSSION
A.   Denial of Defendant’s Motion to Dismiss
     Defendant contends the trial court erred in denying his motion to
dismiss the complaint against him based upon the prosecution’s failure
to comply with the Interstate Agreement on Detainers. We conclude
the trial court correctly found the Interstate Agreement on Detainers
did not apply.


     1.    The Interstate Agreement on Detainers
     “The Interstate Agreement on Detainers [the IAD] is a compact
among 48 States, the District of Columbia, Puerto Rico, the Virgin
Islands, and the United States.” (Carchman v. Nash (1985) 473 U.S.
716, 719 (Carchman).) In California, it is codified as section 1389 of the
Penal Code.

                                     8
     “A detainer is a request filed by a criminal justice agency with the
institution in which a prisoner is incarcerated, asking the institution
either to hold the prisoner for the agency or to notify the agency when
release of the prisoner is imminent.” (Carchman, supra, 473 U.S. at p.
719.) The IAD “‘facilitates the resolution of detainers, based on untried
indictments, informations or complaints in one jurisdiction, lodged
against persons who have “entered upon a term of imprisonment” in
another jurisdiction.’” (People v. Lavin (2001) 88 Cal.App.4th 609, 612
(Lavin).)
     “‘The IAD establishes a procedure by which a prisoner against
whom a detainer has been lodged may demand trial within 180 days of
a written request for final disposition properly delivered to the
prosecutor and appropriate court of the prosecutor’s jurisdiction.
(§ 1389, art. III, subd. (a).) The failure of the state receiving the request
to act in compliance with the IAD and the 180-day limit results in
dismissal of the pending criminal charges with prejudice. (§ 1389, art.
V, subd. (c); [citation].)’” (Lavin, supra, 88 Cal.App.4th at pp. 612-613.)
     Under the IAD, the official having custody of the prisoner must
“promptly inform [the prisoner] of the source and contents of any
detainer lodged against him.” (§ 1389, art. III, subd. (c).) To start the
running of the 180-day period, the prisoner must give or send a written
notice and request for final disposition “to the warden, commissioner of
corrections or other official having custody of him.” (§ 1389, art. III,
subd. (b).) The custodial official must then forward the prisoner’s
written notice and request for final disposition “to the prosecuting
officer and the appropriate court of the prosecuting officer’s

                                      9
jurisdiction,” along with “a certificate of the appropriate official having
custody of the prisoner, stating the term of commitment under which
the prisoner is being held, the time already served, the time remaining
to be served on the sentence, the amount of good time earned, the time
of parole eligibility of the prisoner, and any decisions of the state parole
agency relating to the prisoner.” (§ 1389, art. III, subd. (a); see also art.
III, subd. (b).) If the prisoner is not brought to trial in the jurisdiction
that lodged the detainer within 180 days after the court receives the
request for final disposition and accompanying certificate, the court
must dismiss the indictment, information, or complaint with prejudice.
(§ 1389, art. V, subd. (c).)


      2.    Relevant Facts
      A criminal complaint charging defendant with murder was filed
by the Los Angeles District Attorney on November 13, 2013. It appears
that on that same date, an arrest warrant was issued and was entered
into the National Crime Information Center (NCIC) maintained by the
Federal Bureau of Investigation.
      In July 2014, defendant pled guilty to aggravated robbery in
Colorado and was sentenced to 12 years in prison. The Colorado
Department of Corrections (Colorado DOC) conducted an assessment of
defendant around the time of his conviction, and prepared a document
entitled “Diagnostic Narrative Summary” (Colorado DOC Summary). A
section of that document addressed defendant’s criminal history and
citizenship/immigration status, and included the following subsection:



                                      10
     “E. DETAINERS/WARRANTS: YES
     “County: LOS ANGELES, CA
     “Docket #: 2AV04489
     “Conviction: HOMICIDE - MURDER
     “Class Felony: UNKNOWN
     “Sentence: PENDING
     “Date of Offense: DATE OF WARRANT 11/13/201 [sic]
     “Date of Sentence: PENDING
     “Source: NCIC
     “Brief Description of Offense: Offender said detectives spoke to
     him about who was driving a vehicle when someone was
     murdered. He said he told detectives he would not speak to them
     without an attorney.
     *FULL EXTRADITION”


     In August 2014, the Los Angeles District Attorney began the
process to extradite defendant from Colorado to California for trial on
the murder charge. On January 9, 2015, Governor Edmund G. Brown,
Jr.’s office sent to the extradition/clemency coordinator for Colorado an
executive agreement for the extradition of defendant. On September
29, 2015, officials in California were notified by Colorado’s “Detainer
Operations Supervisor” that defendant was “available for pick up on the
Executive Agreement.”
     In the meantime, in December 2014, defendant sent two
handwritten documents—a one-page “Petition for Writ of Habeas
Corpus Ad Prosequendum” and a one-page “Demand for Speedy
Disposition of Detainer”—to the Antelope Valley branch of Los Angeles
Superior Court. The documents were filed by the court on February 17,
2015. Both documents listed the case number as 2AV04480, which was
a case in which defendant was charged in August 2012 with a


                                    11
misdemeanor violation of Lancaster City Ordinance section 9.20.030
(prohibiting the consumption of alcoholic beverages on public streets or
parking lots). In the demand for speedy disposition, however, defendant
stated that the “DETAINER AND OR WARR[A]NT” charged defendant
with homicide-murder; the case number for the murder case (i.e., the
present case) is MA061302.4
      Sometime in 2015—after Governor Brown had sent the executive
agreement for extradition of defendant for the Colorado governor’s
signature—the Colorado DOC provided defendant with a document (on
Colorado DOC letterhead) entitled “DETAINER
NOTICE/ADVISEMENT OF RIGHTS.”5
      In November 2015, defendant filed a motion to dismiss the murder
complaint under section 1389. Defendant filed another motion to
dismiss under section 1389 on August 17, 2017.6 In the August 2017


4     Upon receipt of defendant’s demand for speedy disposition, the court in
the misdemeanor case (2AV04489) ordered that case dismissed under section
1385.

5      The copy of this document included in the record on appeal is not very
clear, and the date on it is illegible. However, defendant’s counsel stated to
the trial court that the detainer notice/advisement of rights was dated
May 11, 2015. The record also includes two other documents associated with
this notice: a form request for final disposition of detainer signed by
defendant and a Colorado DOC certificate of inmate status dated August 27,
2015, which was addressed to the Los Angeles District Attorney’s office. It is
unclear whether these documents were delivered to the appropriate
authorities in California; defendant’s motions to dismiss under the IAD did
not mention them.

6     We note that defendant was represented by the Law Offices of the
Public Defender when the original motion was filed, but was represented by

                                      12
motion, defendant asserted, based upon the Colorado DOC Summary,
that “[a]t the time of [defendant’s] entry into the custody of the
[Colorado DOC] . . . there was a pending detainer from Los Angeles
County, requesting ‘full extradition’ of [defendant] for a charge of
‘homicide-murder.’” He contended that the February 17, 2015 filing of
his hand-written demand for speedy disposition of the detainer was
sufficient to start the 180-day period to bring him to trial on the murder
charge, and, since he had not been brought to trial within that time the
murder charge against him must be dismissed. In opposition, the
prosecution argued that no detainer was filed in Colorado in this case,
and that, in any event, defendant’s handwritten demand failed to
satisfy the requirements of the IAD.
     The motion was argued a few days before the trial began. The
court found there was no detainer lodged with the Colorado DOC by the
prosecution. Instead, “there was simply an outstanding warrant that
had been entered into the national database as happens as a matter of
course with all warrants,” which the Colorado DOC discovered when it
ran defendant on intake after his conviction. The court found that the
notice of detainer defendant received from prison authorities in 2015
did not establish that the Los Angeles District Attorney’s office lodged a
detainer, because it was a document generated by the Colorado DOC
that merely advised defendant that he was wanted by the Los Angeles
District Attorney’s office for murder.


the Law Offices of the Alternate Public Defender when the subsequent
motion was filed.


                                    13
     3.    Defendant’s Contention on Appeal
     On appeal, defendant contends the trial court erred in finding no
detainer was lodged by the Los Angeles District Attorney’s office.
Relying upon In re Blake (1979) 99 Cal.App.3d 1004, he argues that an
arrest warrant has been held to constitute a detainer under the IAD,
noting that “‘detainer’ has been defined to mean simply ‘a written
notification, filed with the institution in which a prisoner is serving a
sentence, advising the institution that such prisoner is wanted to face
pending criminal charges in another jurisdiction.’” (Quoting In re
Blake, supra, 99 Cal.App.3d at p. 1021.) Thus, he concludes that “[a]t
the time of [defendant’s] entry into the custody of the [Colorado DOC]
. . . there was a pending detainer from Los Angeles County” because
“the homicide warrant operated as a detainer.”
     We do not dispute that an arrest warrant may, under certain
circumstances, constitute a detainer. But those circumstances are not
present in this case.
     As noted, the IAD requires for its application that a detainer be
“lodged” against the prisoner who has “entered upon a term of
imprisonment” in another jurisdiction (§ 1389, art. III, subd. (a)), i.e.,
the detainer must be “filed by a criminal justice agency with the
institution in which a prisoner is incarcerated.” (Carchman, supra, 473
U.S. at p. 719.) This requires both (1) an affirmative act by the
prosecutor of the untried charges to lodge the detainer with the
appropriate authorities, and (2) that at the time of lodging, the prisoner
be serving a term of imprisonment. Neither of these is shown here.



                                     14
     As the Attorney General observes, the lodging of a detainer is
discretionary with the district attorney; the district attorney can decide
not to file a detainer and proceed instead by way of an extradition
request to the Governor of the state in which the prisoner is
incarcerated. (People v. Rhoden (1989) 216 Cal.App.3d 1242, 1251;
People v. Castoe (1978) 86 Cal.App.3d 484, 490.) As the prosecution
demonstrated here, that is what occurred in this case.
     Defendant argues, however, that even where the prosecuting
authority seeks to obtain the prisoner’s presence by means other than a
detainer (such as extradition), the filing of an arrest warrant can
trigger the operation of the IAD, as was the case in United States v.
Mauro (1978) 436 U.S. 340. What defendant overlooks is that in
Mauro, the prosecuting authority lodged the arrest warrant with the
officials of the institution where the prisoner was incarcerated. (Id. at
p. 346 [“federal officials lodged the federal bank robbery warrant as a
detainer against him with the state prison authorities”].) That did not
happen here. Instead, the arrest warrant for defendant merely was
entered into NCIC, a national database, and was not filed with any
prison authorities. Indeed, defendant was not serving a term of
imprisonment at the time the warrant was entered into NCIC, and
therefore it could not have been lodged with the appropriate authorities.
     Throughout his argument on appeal, defendant simply ignores the
language of the IAD requiring that the detainer be “lodged” with the
officials having custody of the prisoner. We cannot ignore that
language, especially because the lodging of a detainer triggers duties on



                                    15
the part of the custodial officials to provide notice to the prisoner of the
detainer and to inform him of his rights under the IAD. (See People v.
Oiknine (1999) 79 Cal.App.4th 21, 28 [“‘While it is true that the IAD’s
provisions are to be “liberally construed,” . . . this does not warrant a
disregard of the clear language and structure of the IAD’”].) Because
there was no evidence establishing that the Los Angeles District
Attorney’s office lodged a detainer for defendant with the Colorado
DOC, we conclude the trial court correctly denied defendant’s motion to
dismiss.


B.   Admission of Khalil Phillips’s Preliminary Hearing Testimony
     Defendant contends the trial court prejudicially erred by
admitting into evidence Khalil Phillips’s preliminary hearing testimony,
because the prosecution failed to exercise due diligence in trying to
secure Phillips’s presence of Phillips at trial. We conclude the court did
not err.


     1.    Relevant Background
     Defendant’s preliminary hearing, at which Khalil Phillips
testified, took place on May 8, 2018. At that time, Phillips was in
custody (in Colorado) on a probation violation, and was brought to
California to testify. While in California, Phillips told the prosecutors
that he had 30 days left on the probation violation; the Englewood,
Colorado police officer who accompanied Phillips to California, Sergeant
Edward Disner, told the prosecutors that Phillips likely would be in
custody even longer, and that he would be under the supervision of the

                                     16
probation department once he was released. Phillips also told Detective
Lugo, the investigating officer on defendant’s case, that he would return
for the trial, because that was part of his probation agreement.
     The information charging defendant with first degree murder was
filed on May 21, 2018, and defendant was arraigned the following day.
The matter was continued multiple times for various matters. On
September 28, 2018, the trial court continued the case to December 7,
2018, for the pretrial hearing, as day 0 of 42. At the pretrial hearing on
December 7, 2018, the trial court set dates for the readiness conference
(Jan. 2, 2019), the hearing on defendant’s motion to dismiss (Jan. 11,
2019), and jury trial (Jan. 14, 2019).
     Ten days before the pretrial hearing, on November 27, 2018, one
of the prosecutors,7 Matthew P. Allen, contacted Detective Lugo. He
told the detective that he expected the trial to begin in January 2019,
and he asked the detective to check to see if Phillips was still in
custody. If he was, he asked Detective Lugo to start the process to get
Phillips ordered out for the trial. If Phillips was out of custody, Allen
asked Detective Lugo to find out if Phillips would agree to come to
California and testify; if not, Allen said they would need to organize an
out of state subpoena for him. Allen followed up with Detective Lugo on
December 17, 2018, asking if he had been able to find out if Phillips was
still in custody. When Allen contacted Detective Lugo again on
December 28, 2018, the detective told him he had arranged for Sergeant
Disner to locate Phillips.


7    There were two prosecutors on defendant’s case.

                                    17
     In late December 2018, Sergeant Disner began searching for
Phillips. He learned that Phillips had been released from jail and was
on probation in the 18th Judicial District of Colorado under the
supervision of Arapahoe County. He ran Phillips’s criminal history and
discovered he had been listed as transient in his last several contacts
and arrests. He led a team of officers from the Englewood Police
Department in trying to locate Phillips at his previous known
addresses, based on Phillips’s prior contacts with law enforcement that
were entered into the Colorado Crime Information Computer (CCIC)
system. He also contacted Phillips’s probation officer to get updated
information about his whereabouts, but the probation officer said that
Phillips had failed to meet with her as required by the terms of his
probation. She told Sergeant Disner that she was working on a warrant
affidavit that she would send to the Arapahoe County District
Attorney’s Office.
     On January 2, 2019, Allen contacted Detective Lugo, who told him
that Phillips had been released from custody and was homeless. Allen
immediately obtained an out of state subpoena and sent it to the
Arapahoe County District Attorney’s office so that office could begin the
process of setting a hearing in Colorado. That same day, Allen spoke to
Sergeant Disner, who told him about the efforts he had made up to that
point. Allen also spoke to Terri Combs at the Arapahoe County District
Attorney’s office. Combs told Allen that she would assign Debbie Knox,
a process server, to look for Phillips, and she would instruct Knox to
work with Sergeant Disner.



                                    18
     Sergeant Disner spoke with Knox the next day. She told him that
she checked government records and Lexis Nexus for addresses
associated with Phillips. She said she would be using her team of
process servers to locate and serve Phillips.
     On January 7, 2019, the probation violation warrant for Phillips
was entered into the CCIC system. That same day, Sergeant Disner
ran a “query query” (a search to see if other law enforcement agencies
had queried Phillips’s name), and he and his team contacted the
agencies who recently had queried Phillips. Those agencies included
the Jefferson County Sheriff’s Office, Lakewood Police Department,
Aurora Police Department, Denver Police Department, and the Denver
Sheriff’s Office. None of those agencies had any updated contact
information or other information that could lead to the location of
Phillips. Sergeant Disner and his team also contacted several other law
enforcement agencies based upon prior CCIC entries regarding Phillips.
In addition, Sergeant Disner contacted the Fugitive Location and
Apprehension Group (FLAG) for assistance. FLAG is a group, made up
of officers from several agencies, that was formed for the sole purpose of
finding and arresting fugitives. FLAG was unable to locate Phillips.
     On January 8, Knox contacted Phillips’s mother at her home. She
told Knox that Phillips did not live there, that she did not know where
he was, and she did not have a phone number for him. She also did not
know if Phillips was working. Knox checked with the Colorado
Department of Labor to see if Phillips had any work wages. The
Department showed that the last time wages were reported for Phillips
was in 2017.

                                    19
     On January 9, 2019, Combs sent an email to Allen to tell him that
Knox had not been able to locate and serve Phillips. She also said that
she had spoken to Sergeant Disner and Phillips’s probation officer, and
neither had been able to locate Phillips. Therefore, Combs said that her
office was not going to be able to serve Phillips in time for the hearing
on the out of state subpoena, which was scheduled for January 10, 2019.


     2.    Prosecution’s Motion and Hearing on the Motion
     The prosecution brought a motion to admit Phillips’s preliminary
hearing testimony on January 14, 2019, the first day of trial. The
motion included declarations from Allen and Sergeant Disner in which
each man described the efforts they had made to try to secure Phillips’s
presence at trial, as well as email correspondence from Sergeant Disner,
Combs, and Knox discussing their efforts to locate and serve Phillips.
     The court held a hearing on the motion that same day, at which
Sergeant Disner testified. Sergeant Disner stated that he received a
call from Detective Lugo in December 2018, asking him to assist in
locating Phillips. He began looking for Phillips sometime late that
month, shortly before or on Christmas. He described the efforts he and
his team made to locate Phillips, including the people and agencies they
contacted. In addition to Sergeant Disner’s testimony and the
declarations and exhibits attached to the motion, the prosecution
submitted the F.B.I. rap sheet for Phillips. The rap sheet showed that
Phillips had been arrested several times between the time of the
preliminary hearing and the start of defendant’s trial, including two
arrests in December 2018: one by the Lakewood (Colorado) Police

                                    20
Department on December 8, 2018 and another by the Broomfield
(Colorado) Police Department on December 11, 2018.
     Defense counsel argued that the prosecution had failed to show
what specific actions had been taken by the various parties in Colorado;
he contended that Sergeant Disner’s testimony regarding what he
believed they had done was insufficient because he had not followed up
to find out if those actions actually had been taken. Counsel also
argued that the efforts to locate Phillips should have started earlier.
The prosecutor argued that the prosecution’s efforts to return Phillips to
testify began the day of the preliminary hearing, when they received
assurances from Phillips that he would come back, and were told that
he would be supervised by the probation department once he was
released from custody. The prosecutor also noted that once the
prosecution learned that Phillips had been released from custody, they
immediately engaged the assistance of a process server and her team,
Sergeant Disner and his team, and the Arapahoe County District
Attorney’s office.
     The trial court asked the prosecutor whether Phillips was kept in
custody either time he was arrested in December 2018, or when he was
released. The prosecutor responded it was his understanding that he
was not kept in custody, but he did not have any specific information.
The court said it wanted to hear what Detective Lugo had done to try to
locate Phillips between November 27, 2018, when Allen asked him to
check on Phillips’s custody status, and January 2019, when the search
for Phillips appeared to have begun in earnest. The court continued the
hearing on the motion to allow further testimony.

                                    21
     The hearing resumed two days later, on January 16, 2019.
Sergeant Disner testified that he and his team had continued to look for
Phillips since the earlier hearing. He contacted Andy Kuritz, the filing
officer with the Safe Streets Task Force, several times. Officer Kuritz
told him that he put out an alert through “Leads On Line,” which is an
on-line service that notifies him if Phillips pawns any items or sells a
cell phone through Eco A.T.M.; Officer Kuritz reported that he had not
received any alerts. Officer Kuritz also checked homeless shelters, but
did not find Phillips in any of them. In addition, he contacted the
Lakewood Police Department Special Response Team, which searched
through homeless areas in the City of Lakewood, as well as the areas
where Phillips had been arrested in the past, but they were unable to
locate Phillips. Officer Kuritz also checked CCIC earlier that day (the
day of Sergeant Disner’s testimony), and told Sergeant Disner there
were no additional queries for Phillips, and there were two outstanding
warrants (one out of the Lakewood Police Department and one out of
the Colorado Probation Department).
     Sergeant Disner also testified about the most recent times Phillips
had been in custody. He was in custody on a case from Broomfield on
June 14, 2018; he was remanded on June 20, 2018, and given 18
months of probation. He abandoned probation, and on November 26,
2018, a complaint was filed and a warrant issued. Phillips then was
detained by the Lakewood Police Department on December 8, 2018 and
sentenced on December 19, 2008 to 30 days in jail, with 21 days served,
plus good time. When Sergeant Disner checked on or shortly after
Christmas, Phillips no longer was in custody.

                                    22
     After Sergeant Disner testified, the court again continued the
hearing on the prosecution’s motion, which resumed on January 18,
2019. On that date, after hearing argument from the prosecution and
defense counsel, the court observed that “it’s very clear that additional
efforts could have been made and probably should have been made to
locate Mr. Phillips[,] and certainly it would appear that it would have
been a good idea to begin those efforts earlier.” But the court also noted
that Phillips had given assurances to the prosecutor and investigating
officer that he would cooperate, return voluntarily for trial, and would
maintain contact with his probation officer when he was released from
custody. Therefore, the prosecutors did not have reason to believe until
recently that Phillips was not cooperative and was not reporting to his
probation officer. The court concluded: “I think that certainly there are
issues as far as the timing, but at least as of relatively recently, the end
of December, it does appear to the court that reasonable diligence has
been exercised in an effort to locate Mr. Phillips. Certainly I think we
can all agree not everything that could have been done was done and
the efforts were not started as soon as we all would have liked, but the
fact that additional efforts could have been made is not dispositive. It’s
the test of the efforts that were made. [¶] So based on that finding of
reasonable diligence the court does find . . . Mr. Phillips to be
unavailable pursuant to Evidence Code section 240 and the People will
be permitted to read in his preliminary hearing testimony.”




                                     23
     3.    Defendant’s Contention on Appeal
     Defendant contends the trial court erred in finding the
prosecution had used due diligence to secure Phillips’s presence at trial,
and therefore his constitutional rights to due process and to confront
and cross-examine the “primary” witness against him were violated.
We disagree.
     The confrontation clauses of the state and federal Constitutions
grant criminal defendants the right to confront the witnesses against
them. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) “Although
important, the constitutional right of confrontation is not absolute.
[Citations.] ‘Traditionally, there has been “an exception to the
confrontation requirement where a witness is unavailable and has
given testimony at previous judicial proceedings against the same
defendant [and] which was subject to cross-examination . . . .”
[Citation.]’ [Citation.] Pursuant to this exception, the preliminary
hearing testimony of an unavailable witness may be admitted at trial
without violating a defendant’s confrontation right. [Citation.]” (People
v. Herrera (2010) 49 Cal.4th 613, 621.)
     In California, this exception is codified in section 1291 of the
Evidence Code. Subdivision (a)(2) of that section “provides that ‘former
testimony,’ such as preliminary hearing testimony, is not made
inadmissible by the hearsay rule if ‘the declarant is unavailable as a
witness,’ and ‘[t]he party against whom the former testimony is offered
was a party to the action or proceeding in which the testimony was
given and had the right and opportunity to cross-examine the declarant
with an interest and motive similar to that which he has at the

                                    24
hearing.’ Thus, when the requirements of [Evidence Code] section 1291
are met, the admission of former testimony in evidence does not violate
a defendant’s constitutional right of confrontation.” (People v. Herrera,
supra, 49 Cal.4th at p. 621, fn. omitted.)
     In the present case, defendant does not contest that he was a
party to the preliminary hearing and that he had the right and
opportunity to cross-examine Phillips at that hearing. Thus, the only
issue is whether Phillips was “unavailable as a witness.” (Evid. Code,
§ 1291, subd. (a).) Under Evidence Code section 240, a declarant is
“‘unavailable as a witness’” if he or she is “[a]bsent from the hearing
and the proponent of his or her statement has exercised reasonable
diligence but has been unable to procure his or her attendance by the
court’s process.” (Evid. Code, § 240, subd. (a)(5).)
     “[T]o establish unavailability, the prosecution must show that its
efforts to locate and produce a witness for trial were reasonable under
the circumstances presented.” (People v. Herrera, supra, 49 Cal.4th at
p. 623.) “‘What constitutes due diligence to secure the presence of a
witness depends upon the facts of the individual case. . . . The totality of
efforts of the proponent to achieve presence of the witness must be
considered by the court. Prior decisions have taken into consideration
not only the character of the proponent’s affirmative efforts but such
matters as whether he reasonably believed prior to trial that the
witness would appear willingly and therefore did not subpoena him
when he was available [citation], whether the search was timely begun,
and whether the witness would have been produced if reasonable
diligence had been exercised [citation].’” (People v. Sanders (1995) 11

                                     25
Cal.4th 475, 523.) “We review the trial court’s resolution of disputed
factual issues under the deferential substantial evidence standard
[citation], and independently review whether the facts demonstrate
prosecutorial good faith and due diligence.” (People v. Herrera, supra,
49 Cal.4th at p. 623.)
     Defendant asserts that the prosecution failed to show due
diligence in this case because (1) the search should have begun earlier,
particularly since Phillips was out-of-state; (2) Phillips’s testimony was
critical to the prosecution’s case, and therefore “it was incumbent on the
prosecution to take its duty to secure his attendance very seriously”;
and (3) Phillips was not a very credible witness. We are not persuaded.
     First, although the trial court indicated that the efforts to find
Phillips could have started earlier, it found that the prosecution had no
reason to believe—based upon Phillips’s assurances he would cooperate
and the fact that he would be required to maintain contact with his
probation officer when released from custody—that Phillips would be
difficult to locate when needed for trial. The record supports that
finding. Moreover, the record shows that, at the prosecution’s request,
Sergeant Disner began looking for Phillips on or about December 25,
2018, almost three weeks before the trial was set to begin. As the
Supreme Court has observed, “‘we could not properly impose upon the
People an obligation to keep “periodic tabs” on every material witness in
a criminal case, for the administrative burdens of doing so would be
prohibitive.’” (People v. Fuiava (2012) 53 Cal.4th 622, 676.) Given
Phillips’s assurances to the prosecutors, and the fact that he was to be
under the supervision of his probation officer once released from

                                    26
custody, we conclude that it was reasonable to begin the search for
Phillips three weeks before the trial was scheduled to begin. (See, e.g.,
Id. at pp. 675-676 [it was reasonable to begin search two weeks before
the date set for trial].)
      Second, while Phillips’s testimony was helpful to the prosecution’s
case, he certainly was not the “primary” witness, as defendant asserts.
In fact, Phillips was mentioned only five times in either side’s closing
arguments. The prosecution referred to Phillips once during the
opening argument, when listing the people who defendant lied to; he
observed that defendant lied when he told Phillips that Castillo, who he
said was his fiancée and was up in his apartment, said that Phillips
could use her car. Defense counsel also mentioned Phillips once during
his closing argument, stating: “And if you believe [defendant] told
Kahlil Phillips there’s a body on this car and that means that he is
telling Mr. Phillips that he killed her, it’s still a voluntary
manslaughter.” But defendant himself admitted during his testimony
that he told Phillips “there was a body on the car.” Then, in the
prosecution’s final closing, Phillips was mentioned three times, mostly
in passing. First, the prosecution referred to Phillips’s testimony that
defendant referred to Castillo as his fiancé as one of two examples to
show that defendant was “a casual liar.” With the remaining two
mentions of Phillips, the prosecution sought to show that portions of
defendant’s admission to Huff about how he killed Castillo was
corroborated by Phillips’s testimony regarding defendant giving him
Castillo’s car. Far from being the “primary” witness, Phillips was
primarily a corroborating witness. Instead, the primary witness for the

                                      27
prosecution was Huff, which is reflected by the jury’s request for a read-
back of all of her testimony, but did not ask for any other witness’
testimony.
     Finally, defendant fails to explain how the “fact” that “Phillips
was a witness of dubious credibility” is relevant to determining whether
the prosecution exercised due diligence in securing Phillips’s attendance
at trial. To the extent defendant suggests that this “fact” demonstrates
that the prosecution could not reasonably have believed Phillips’s
promise to voluntarily appear at trial (although he does not expressly
argue this), we observe that the prosecution did not rely solely on
Phillips’s promise to appear, but also on the fact that Phillips would be
under the supervision of his probation officer once he was released from
custody, and that his agreement to testify would be a condition of his
probation. We find that under the circumstances, it was reasonable for
the prosecution to rely on Phillips’s promise to appear, given that he
would be under the supervision of his probation officer.
     In short, in light of Phillips’s promise to appear, the fact that he
was going to be under the supervision of his probation officer and
therefore presumably easy to locate, and the evidence establishing the
extensive efforts made over the course of more than three weeks to
locate Phillips, we conclude the trial court did not err in finding the
prosecution exercised due diligence in attempting to locate Phillips and
secure his presence at trial. Therefore, the court properly declared
Phillips an unavailable witness and allowed his preliminary hearing
testimony to be read at trial.



                                    28
                     DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                 WILLHITE, J.
We concur:



MANELLA, P. J.



COLLINS, J.




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