Filed 8/18/20 P. v. Anthony CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

DION ANTHONY,

Defendant and Appellant.

 B295757

 (Los Angeles County

 Super. Ct. No. MA061302)

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. 
2

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.
3

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 
4

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. 
5

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. 
6

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 
7

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 
8

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.
9

“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 
10

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:
11

“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 
12

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 
13

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. 
14

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.
15

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 
16

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 
17

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.
18

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. 
19

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. 
20

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 
21

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. 
22

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. 
23

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.” 
24

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 
25

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 
26

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 
27

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 
28

prosecution was Huff, which is reflected by the jury’s request for a readback 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.
29

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.