Filed 5/22/24 P. v. Rodas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DOMINGO RODAS,

Defendant and Appellant.

B326555

(Los Angeles County

Super. Ct. No. BA360125)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, H. Clay Jacke II, Judge. Affirmed.

Aurora Bewicke, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Zee Rodriguez and Nicholas 
2

Webster, Deputy Attorneys General, for Plaintiff and 

Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

A jury convicted defendant Domingo Rodas of one count of 

first degree murder and two counts of willful, deliberate, and 

premeditated attempted murder. On appeal, Rodas contends his 

counsel provided ineffective assistance by failing to introduce 

evidence of his mental health history. Rodas also argues the trial 

court erroneously admitted testimonial hearsay relating to the 

murder victim’s autopsy. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

One afternoon in August 2009, Ashli Hughes was hanging 

posters outside the Music Box Theater, where she worked. 

Around 1:30 p.m., Hughes saw Rodas “lurking” outside the 

theater. She also saw a homeless man she knew as Keith, later 

identified as Keith Falin, sleeping on the ground nearby. Hughes

went inside for five or 10 minutes. Footage from a nearby 

security camera showed that while Hughes was inside, Rodas 

approached Falin, kneeled down, and reached his arm toward 

Falin. When Hughes returned, she saw a commotion, blood on 

the ground, and fire department employees assessing Falin.

Falin had been stabbed in the chest. He later died from his 

injuries.

Later that afternoon, Kenneth McFetridge was taking a 

nap against a wall about half a mile from the Music Box Theater. 

When he awoke, he felt severe pain in his chest and had difficulty 

breathing. His friend asked someone to call an ambulance. 

Paramedics discovered a puncture wound in McFetridge’s chest.
3

Around 4:45 p.m., about a quarter mile from where 

McFetridge had been napping, Ronald Vaughan was walking 

from his storage unit to a bus stop. A man came up behind

Vaughan as he was walking. The man abruptly turned and 

lunged at Vaughan’s chest, then walked away. Vaughan initially

thought the man had punched him, but then he noticed blood and 

realized he had been stabbed.

Around 4:50 p.m., Los Angeles Police Officer Michael Kim 

responded to a call about a “man down” near the Music Box 

Theater. After he arrived, Kim received a description of the 

suspect. Kim and his partner searched the area and soon spotted

a man, Rodas, matching the suspect’s description. They

conducted an investigative stop and found a knife in a makeshift

cardboard sheath in Rodas’s sleeve.

Falin’s DNA was found on the sheath and handle of the 

knife. McFetridge’s DNA was found on the shirt Rodas was 

wearing when he was arrested. Police officers later showed 

Vaughan a six-pack photo lineup, and Vaughan identified Rodas 

as “closest” to the man who stabbed him.

2014 trial and subsequent appeal

In February 2012, a trial court found Rodas incompetent to 

stand trial based on two psychiatric assessments. (People v. 

Rodas (2018) 6 Cal.5th 219, 224 (Rodas).) He was admitted to 

Patton State Hospital for treatment in April 2012. (Id. at p. 225.) 

Rodas was transferred to Atascadero State Hospital in February 

2013, and in May, the hospital’s medical director certified Rodas 

as mentally competent. (Id. at pp. 225–226.) The same month,

the trial court ruled Rodas was competent to stand trial. (Id. at 

p. 226.)
4

In March 2014, after jury selection and before opening 

statements, defense counsel informed the court she had 

developed a doubt as to Rodas’s competence to stand trial. 

(Rodas, supra, 6 Cal.5th at p. 227.) The court addressed Rodas 

directly and, after a brief colloquy, determined he understood the 

charges and was willing to help counsel. (Id. at p. 229.) The trial 

proceeded. Rodas was convicted of both attempted murders and 

of murdering Falin.1 (Id. at p. 230.)

Rodas appealed, arguing the trial court should have 

suspended proceedings when defense counsel raised a doubt 

about his competence. (Rodas, supra, 6 Cal.5th at p. 230.) The 

Court of Appeal affirmed, concluding counsel’s doubts “ ‘did not 

necessarily constitute substantial evidence of defendant’s 

incompetence.’ ” (Ibid.)

Our Supreme Court reversed. The court’s opinion 

described Rodas’s extensive mental health history. In 1974, 

when he was 19 and serving in the U.S. Army, Rodas was 

hospitalized for a psychiatric disorder. (Rodas, supra, 6 Cal.5th 

at p. 224.) He was later medically discharged from the Army 

based on a psychiatric disability. (Ibid.) Rodas was declared 

incompetent to stand trial in 1984 and 1986. (Ibid.) He regained 

competency and was convicted of burglary. (Ibid.) In 1988, at 

the end of his prison sentence for burglary, Rodas was confined at 

the Atascadero and Patton State Hospitals under a mental health 

conservatorship, where he was diagnosed with paranoid 

schizophrenia and schizoaffective disorder with substance abuse. 

(Ibid.)

1 Rodas was also charged with and acquitted of two other 

murders. (Rodas, supra, 6 Cal.5th at p. 230.)
5

As noted above, Rodas was assessed again in 2011 and 

2012, declared incompetent in 2012, and restored to competency 

in 2013. However, the clinical report supporting the certificate of 

mental competency cautioned that Rodas should remain on his 

psychiatric medication regimen to maintain competency. (Rodas, 

supra, 6 Cal.5th at p. 226.) In March 2014, when defense counsel 

expressed doubt about Rodas’s competency, Rodas told the court 

he was no longer taking his medication. (Id. at p. 229.) In the 

context of this history, and the specific observations of Rodas’s 

counsel suggesting his condition had deteriorated, our Supreme 

Court determined there was substantial evidence of mental 

incompetence. The court concluded the trial court should have 

suspended proceedings and conducted a new formal competency 

inquiry. (Id. at p. 232.)

The 2022 trial

On remand, Rodas was retried for murdering Falin and 

attempting to murder McFetridge and Vaughan.

Deputy medical examiner Dr. Lisa Scheinin had conducted 

Falin’s autopsy, but she retired before Rodas’s second trial. 

Deputy medical examiner Dr. Vadims Poukens testified at the 

second trial regarding Falin’s cause of death based on his review 

of the autopsy report. Defense counsel initially objected to Dr. 

Poukens’s testimony to the extent it relied on hearsay, such as 

notes, in the autopsy report. However, the prosecutor explained 

the autopsy report was kept during the regular course of 

business, and defense counsel stated, “based on that 

representation I think that’s fine.” The court permitted Dr. 

Poukens to testify, and defense counsel stated she would object as 

needed.
6

The People introduced one diagram from Falin’s autopsy 

report with handwritten notations describing a stab wound to his 

chest, aorta, and lung, and seven photographs showing the 

injury. Dr. Poukens testified that, based on his analysis of the 

photographs, Falin had been stabbed once in the aorta and left 

lung. He opined Falin was killed by the stab wound, and that it 

was a homicide. Dr. Poukens testified that Dr. Scheinin

estimated the wound was between five and seven inches deep. 

He also testified that the autopsy report indicated Dr. Scheinin

searched for other potential causes of death. According to Dr. 

Poukens, the autopsy report reflected that Falin was “probably a 

smoker” and his liver was “slightly enlarged and fatty,” but Dr. 

Poukens opined these factors did not contribute to Falin’s death.

After the People rested, defense counsel informed the court, 

outside the presence of the jury, that Rodas planned to testify,

against her recommendation. The court questioned Rodas, who

confirmed he wished to testify. Defense counsel also stated that 

she recommended introducing a 44-page packet of mental health 

records covering a date range of 1986 to 1988, in lieu of “live 

mental health psychiatric testimony.” Counsel explained: “I 

thought it would be relevant to have it admitted, and it is my 

client’s desire not for me to. It is my client’s desire that it not be 

admitted, and I respect that choice.” The following colloquy then 

occurred:

The Court: All right. Is that correct, sir, that 

you do not want your mental health records to 

come before the jury?

[Rodas]: Yes. Yes, your honor.

The Court: So with that understanding or with 

that request, you realize that your decision not 

to have them admitted you can’t later say, well, 
7

there was something in my mental health 

records that could have helped me -- in the 

event that you’re convicted -- that could have 

helped me, but they weren’t presented because

you’re the one that’s saying don’t present them. 

You understand what I’m saying?

[Rodas]: Yes, your honor.

The Court: So you can’t say the failure to 

present them, your lawyer’s failure to present 

them was her fault or an error in the case. 

Understood?

[Rodas]: Yes, your honor.

On direct examination, defense counsel asked Rodas if he 

recalled any incidents in August 2009, if he had ever been 

hospitalized for any mental illness, and if he had ever taken any 

medications to help with any mental illness. To each inquiry, 

Rodas responded: “No comment.” The People did not crossexamine Rodas.

The jury convicted Rodas as charged. The trial court 

imposed a state prison sentence of 39 years to life, plus nine 

years. Rodas timely appealed.

DISCUSSION

I. Rodas Has Not Established Ineffective Assistance of 

Counsel

Rodas argues his trial counsel provided ineffective 

assistance by failing to introduce evidence of his mental health 

history. He contends this evidence could have cast doubt on 

whether he formed the requisite mental state for the charged 

crimes. We conclude Rodas has not established that his trial 

counsel’s performance was deficient or that it prejudiced the 

defense.
8

The Sixth Amendment to the United States Constitution 

and article I, section 15 of the California Constitution guarantee 

the right to the assistance of counsel in criminal prosecutions. 

The “proper standard for attorney performance is that of 

reasonably effective assistance.” (Strickland v. Washington

(1984) 466 U.S. 668, 687 (Strickland); People v. Pope (1979) 23 

Cal.3d 412, 424 [attorney must provide “reasonably competent 

assistance”].) An ineffective assistance claim “has two 

components. First, the defendant must show that counsel’s 

performance was deficient. This requires showing that counsel 

made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment. 

Second, the defendant must show that the deficient performance 

prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a 

trial whose result is reliable.” (Strickland, at p. 687.)

“Where the record contains no explanation for the 

challenged representation, we will reject an ineffective assistance 

claim unless counsel was asked to explain his performance and 

failed to provide an explanation, or unless there simply could be 

no satisfactory explanation.” (People v. King (2010) 183 

Cal.App.4th 1281, 1299 (King); People v. Ledesma (1987) 43 

Cal.3d 171, 218 (Ledesma).) “ ‘ “In order to prevail on [an 

ineffective assistance of counsel] claim on direct appeal, the 

record must affirmatively disclose the lack of a rational tactical 

purpose for the challenged act or omission.” [Citation.]’ 

[Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 403

(Majors).)
9

“We review the legal question of whether defendant’s 

constitutional rights were violated de novo.” (People v. Palmer

(2020) 49 Cal.App.5th 268, 280.)

In People v. Lang (1989) 49 Cal.3d 991 (Lang), abrogated on 

other grounds by People v. Diaz (2015) 60 Cal.4th 1176, the 

California Supreme Court held defense counsel’s failure to offer 

mitigation evidence at the penalty phase of a capital trial, in 

accordance with the defendant’s wishes, was not deficient 

performance and could not form the basis of an ineffective 

assistance claim. Defense counsel had planned to call the 

defendant’s grandmother as a witness during the penalty phase 

of the capital case, but did not do so at the defendant’s request. 

(Lang, at p. 1029.)

On appeal, the defendant argued that in agreeing to his 

wishes, defense counsel rendered ineffective assistance. The 

court rejected this argument, reasoning that requiring defense 

counsel to present mitigating evidence over the defendant’s 

objection “would be inconsistent with an attorney’s paramount 

duty of loyalty to the client and would undermine the trust, 

essential for effective representation, existing between attorney 

and client.” (Lang, supra, 49 Cal.3d at p. 1031.) The court 

further explained that “[w]hile selection of defense witnesses is 

generally a matter of trial tactics over which the attorney, rather 

than the client, has ultimate control [citation], it does not 

necessarily follow that an attorney acts incompetently in 

honoring a client’s request not to present certain evidence for 

nontactical reasons. . . . Given the attorney’s ethical duty of 

loyalty to the client, it is ‘not outside the range of competent 

attorney actions to fail to present mitigating evidence when the 
10

defendant adamantly endorses that position.’ [Citation.]” (Ibid.; 

accord, People v. Brown (2014) 59 Cal.4th 86, 112–113.)

The court alternatively concluded that even if defense 

counsel acted improperly, the invited error doctrine “estop[ped] a 

defendant from claiming ineffective assistance of counsel based 

on counsel’s acts or omissions in conformance with the 

defendant’s own request[s].” (Lang, supra, 49 Cal.3d at p. 1032.) 

Similarly, in Majors, supra, 18 Cal.4th at page 409, the court 

applied the Lang analysis in rejecting the defendant’s argument 

that defense counsel was ineffective for deferring to the 

defendant’s request during the guilt phase of the trial that 

counsel not request a jury instruction on a lesser related offense.

Considering the reasoning of Lang, we disagree that the 

record indicates there could be no satisfactory explanation for 

counsel’s failure to introduce into evidence the packet of mental 

health related records, over Rodas’s objection. Defense counsel 

did not state that she was merely deferring to Rodas’s wishes. 

She said only that she “respect[ed]” Rodas’s choice to not present 

the packet of records. While counsel indicated she believed the 

documents were relevant, the record before us does not establish 

how significant they would have been since they did not appear to 

directly speak to Rodas’s mental health in 2009. As in People v. 

Haskett (1982) 30 Cal.3d 841, 853, “defense counsel was aware of 

defendant’s reluctance to call into question his own mental 

stability, and could have concluded that [she] would have 

difficulty securing defendant’s cooperation” if she proceeded with 

offering the documents as evidence. The record further does not 

indicate why the defense did not introduce other evidence 

relevant to Rodas’s mental state in 2009. We cannot discern from 

the record what other evidence was available, what the nature of 
11

that evidence may have been, or whether counsel’s decision not to 

introduce such evidence was erroneous.

We find the Lang court’s reasoning applicable here that,

given counsel’s ethical duty of loyalty to her client, and in light of 

the absence of a record establishing the probative value of the 

packet of documents, we cannot determine that it was outside the 

range of competent attorney actions to fail to present the 

evidence over Rodas’s objection, even if it was for a nontactical 

reason. Further, as in Lang, Rodas expressly informed the court 

that he was directing his attorney not to present the documents.

He is therefore estopped from now claiming ineffective assistance 

on that ground.

On appeal, Rodas contends Lang is inapplicable because 

the court’s analysis is limited to mitigation evidence in the 

penalty phase of capital cases and the discussion of the invited 

error doctrine is dicta this court should reject. (Cf. People v. 

Poore (2022) 13 Cal.5th 266, 311–312 (conc. opn. of Liu, J.)

[suggesting Lang may be in tension with discussion in McCoy v. 

Louisiana (2018) 584 U.S. 414, regarding the division of roles 

between counsel and defendant].) However, even if Rodas’s trial 

counsel’s performance was deficient and the invited error 

doctrine does not apply, Rodas’s ineffective assistance claim still 

fails because he has not established prejudice.

A defendant claiming ineffective assistance must

demonstrate that “counsel’s errors were so serious as to deprive 

the defendant of a fair trial, a trial whose result is reliable.” 

(Strickland, supra, 466 U.S. at p. 687.) “[P]rejudice must be 

affirmatively proved. [Citations.] ‘It is not enough for the 

defendant to show that the errors had some conceivable effect on 

the outcome of the proceeding . . . . The defendant must show 
12

that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.’ [Citations.]” (Ledesma, 

supra, 43 Cal.3d at pp. 217–218.)

Rodas has not met this threshold. The only specific 

evidence the record shows Rodas’s counsel withheld was “a 44-

page packet entitled mental health records . . . ranging in time 

from 1986 to 1988.” Yet, this packet is not included in the 

appellate record, and Rodas has not presented any evidence as to 

what facts were reflected in it. Even if we assume the packet 

described Rodas’s mental health diagnoses and history through 

1988 (Rodas, supra, 6 Cal.5th at p. 230), Rodas fails to explain 

how the packet of records, if admitted, would have conceivably 

affected the outcome of the proceeding. The record suggests the 

information contained in the materials ended in 1988, two 

decades before Rodas was alleged to have committed the acts at 

issue in this case. During those two decades, it appears Rodas 

received some mental health treatment, and there is no 

indication in the record that the packet included information 

about the status of Rodas’s mental health in August 2009. Rodas 

has not carried “his burden of proving prejudice as a 

‘demonstrable reality,’ not simply speculation as to the effect of 

the errors or omissions of counsel.” (People v. Williams (1988) 44 

Cal.3d 883, 937.)

II. Rodas Has Not Established Reversible Error Based 

on Violation of His Sixth Amendment Confrontation 

Right

Rodas also contends the trial court erred in admitting

hearsay in certain autopsy materials and Dr. Poukens’s
13

testimony based on those materials. He argues this evidence 

violated his Sixth Amendment confrontation right because the 

autopsy report included Dr. Scheinin’s hearsay statements. We

disagree.2

“[A] hearsay statement is one in which a person makes a 

factual assertion out of court and the proponent seeks to rely on 

the statement to prove that assertion is true. Hearsay is 

generally inadmissible unless it falls under an exception.” 

(People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez).) 

Separately, the Sixth Amendment guarantees the accused “the 

‘right . . . to be confronted with the witnesses against him’ . . . .” 

(Crawford v. Washington (2004) 541 U.S. 36, 54 (Crawford).)

“In light of our hearsay rules and Crawford, a court 

addressing the admissibility of out-of-court statements must 

engage in a two-step analysis. The first step is a traditional 

hearsay inquiry: Is the statement one made out of court; is it 

offered to prove the truth of the facts it asserts; and does it fall 

under a hearsay exception?” (Sanchez, supra, 63 Cal.4th at 

p. 680.) If the statement is hearsay, the second step examines 

2 The People argue Rodas forfeited any such claim because

his counsel failed to expressly make a confrontation clause 

objection at trial. (People v. Redd (2010) 48 Cal.4th 691, 730.) 

However, before the challenged testimony was offered, Rodas’s

counsel objected on hearsay grounds because Dr. Poukens did not 

create the diagram or compile the notes in the autopsy report. 

Rodas’s “challenge on appeal is merely a constitutional ‘gloss’ 

upon an objection raised below, and therefore is not forfeited.” 

(People v. Foster (2010) 50 Cal.4th 1301, 1322, fn. 9.) To the 

extent Rodas arguably forfeited the hearsay arguments he raises 

on appeal by failing to object further during the testimony, we 

exercise our discretion to consider the arguments.
14

whether it “is testimonial hearsay, as the high court defines that 

term.” (Ibid.) Testimonial hearsay has “two critical components. 

First, to be testimonial the statement must be made with some 

degree of formality or solemnity. Second, the statement is 

testimonial only if its primary purpose pertains in some fashion 

to a criminal prosecution.” (People v. Dungo (2012) 55 Cal.4th 

608, 619.)

The introduction of testimonial hearsay violates a 

defendant’s confrontation right under the Sixth Amendment 

except under certain conditions that do not exist here. (People v. 

Garton (2018) 4 Cal.5th 485, 505 (Garton).)3 “Violation of the 

Sixth Amendment’s confrontation right requires reversal of the 

judgment against a criminal defendant unless the prosecution 

can show ‘beyond a reasonable doubt’ that the error was 

harmless.” (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661,

citing Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

We begin by assessing whether the evidence Rodas 

challenges constituted hearsay. (Sanchez, supra, 63 Cal.4th at 

p. 680.) The challenged evidence is: (1) photographs from the 

autopsy report depicting Falin’s injuries; (2) a diagram from the 

autopsy report including Dr. Scheinin’s handwritten notes; 

(3) Dr. Poukens’s testimony based on the autopsy report; and 

3 Crawford “bars the introduction of testimonial out-of-court 

statements offered for their truth unless (1) there is a showing 

that the declarant is unavailable and either (2) the defendant had 

a prior opportunity to cross-examine the declarant or (3) the 

defendant has forfeited his right to object through his own 

wrongdoing.” (Garton, supra, 4 Cal.5th at p. 505.) The People 

made no showing below, and do not argue on appeal, that Dr. 

Scheinin was unavailable for the second trial.
15

(4) Dr. Poukens’s testimony conveying Dr. Scheinin’s out-of-court 

statements from the autopsy report.

“ ‘It is clear that the admission of autopsy photographs . . . 

does not violate the confrontation clause. Hearsay is defined as 

an out-of-court “statement.” (Evid. Code, § 1200.) A statement is 

defined for this purpose as an “oral or written verbal expression 

or . . . nonverbal conduct of a person” intended as a substitute for 

oral or written expression. (Evid. Code, § 225, italics added.) 

Only people can make hearsay statements; machines cannot. 

[Citation.]’ [Citation.]” (Garton, supra, 4 Cal.5th at p. 506.) The 

seven photographs from the autopsy report introduced at trial 

were not hearsay.4

Dr. Poukens’s testimony relating his own opinions based on 

his review of the autopsy report was also not hearsay. We agree 

with the People that Garton, supra, 4 Cal.5th 485, is on all fours

with this case, and Rodas fails to distinguish it in his briefing. In 

Garton, as here, the coroner who conducted an autopsy retired 

before trial. (Id. at p. 504.) The coroner’s successor testified and 

provided opinions as to the cause of death based on the autopsy 

report. (Ibid.) On appeal, our Supreme Court held that a

testifying coroner may rely on an autopsy report prepared by 

another person so long as the coroner does not relate as true any 

specific out-of-court statements. (Id. at p. 506.) The Garton court

concluded it was clear that the testifying coroner “was exercising 

her own independent judgment to arrive at her conclusions.” (Id. 

4 Rodas also argues the People did not establish an adequate 

foundation for the photographs. However, his counsel failed to 

object to the photographs on this basis at trial, and thereby 

forfeited the issue on appeal. (People v. Dykes (2009) 46 Cal.4th 

731, 756; Evid. Code, § 353.)
16

at p. 507.) Likewise, here, Dr. Poukens permissibly relied on Dr. 

Scheinin’s autopsy report, and properly formed his own 

independent conclusions based on the report. As in Garton, these 

statements were not hearsay. (Ibid.)

The remaining two pieces of challenged evidence contained 

hearsay. The diagram from the autopsy report showed the 

outline of a body and included handwritten notes stating: “2 –

LUNG [¶] 1 – TO AORTA [¶] LT-RT, FRT TO BACK, DOWN. [¶]

5” DEEP TO 7” [¶] 1 ENTRY [¶] 2 WOUNDS TO LT LUNG [¶] 

TOP WOUND 3”-4” [¶] LOWER 5”-7” TWRS AORTA.” The 

handwritten statements were made out of court and the People 

have not identified any nonhearsay purpose for the statements. 

Similarly, Dr. Poukens’s testimony about Dr. Scheinin’s estimate 

of the wound depth and her examination of the body also related 

hearsay statements. (Sanchez, supra, 63 Cal.4th at p. 674.)

Yet, even assuming these statements were testimonial

hearsay, any error in admitting them was harmless beyond a 

reasonable doubt. Garton again provides useful guidance. There, 

the testifying coroner conveyed several out-of-court statements 

from the autopsy report regarding the state of the victim’s body 

and the manner of death. (Garton, supra, 4 Cal.5th at p. 507.) 

Our Supreme Court concluded that even if these out-of-court 

statements were testimonial, reversal was not required. (Ibid.) 

The court reasoned that the hearsay comprised a “relatively 

small portion” of the coroner’s testimony, amounting to “only five 

or six statements out of testimony spanning 30 transcript pages

. . . .” (Ibid.) Moreover, the hearsay was duplicative of other 

evidence independently establishing how the victim was killed, 

and the defense’s closing argument conceded there was no 
17

dispute as to the cause of death. (Ibid.) Any error was therefore 

harmless beyond a reasonable doubt.

Likewise, here, just two of Dr. Poukens’s statements in 18 

pages of testimony conveyed out-of-court statements. Only one of 

the eight exhibits introduced from the autopsy report included 

hearsay. Moreover, other evidence overwhelmingly established 

Falin’s death was caused by a stab wound. The autopsy 

photographs showed stab wounds to Falin’s chest, aorta, and 

lung. Dr. Poukens testified, based on his independent 

assessment of the evidence, that the cause of death was a stab 

wound to the chest. He further testified Falin’s smoking and 

fatty liver were not contributing factors, and that he could not 

identify any other contributing factor from the autopsy file.

As in Garton, Falin’s cause of death was not disputed. In

closing argument, Rodas’s trial counsel conceded someone killed 

Falin willfully and that he was stabbed. The central issue for 

Rodas’s defense was not the cause of death, but whether Rodas 

was the perpetrator and whether Falin was killed willfully, 

deliberately, and with premeditation, as required for first degree 

murder. Under these circumstances, hearsay statements about 

the depth of the wound and whether other factors may have 

contributed to Falin’s death did not “have high value in the 

overall evidentiary calculus.” (People v. Caro (2019) 7 Cal.5th 

463, 493.) Thus, even if the trial court erred in admitting this 

evidence, any error was harmless beyond a reasonable doubt. 

(Chapman, supra, 386 U.S. at p. 24.)5

5 For the first time in his reply brief, Rodas argues he was 

prejudiced because without evidence of the depth of the wound, 

one or more jurors may have questioned his “intentions.” “We do 
18

Finally, Rodas argues his counsel’s failure to object during 

Dr. Poukens’s testimony constitutes ineffective assistance of 

counsel.6 We must reject this claim, as there is no evidence 

explaining counsel’s rationale. (King, supra, 183 Cal.App.4th at 

p. 1299.) Indeed, “ ‘[w]hether to object to inadmissible evidence is 

a tactical decision; because trial counsel’s tactical decisions are 

accorded substantial deference [citations], failure to object seldom 

establishes counsel’s incompetence.’ [Citation.]” (People v. Riel

(2000) 22 Cal.4th 1153, 1185.) “In any event where, as here and 

as is typical, the appellate record has not provided counsel the 

opportunity to offer an explanation for his or her tactical choice, 

we affirm without prejudice to the defendant’s right to litigate his 

claim in collateral proceedings in which counsel has the 

opportunity to offer an explanation for his or her tactical choice.” 

(People v. Arredondo (2018) 21 Cal.App.5th 493, 502.)

not consider arguments raised for the first time in a reply brief.” 

(Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 

Cal.App.5th 607, 636, fn. 8.) In any case, we would reject this 

argument, because other evidence, such as the fact that the knife 

penetrated so deeply as to reach Falin’s lung and aorta, was 

equally probative of the perpetrator’s “intentions.”

6 Rodas’s trial counsel objected just once during Dr. 

Poukens’s testimony, on the basis that he had no personal 

knowledge of the Los Angeles County coroner’s office’s practice of 

sending a different coroner to testify when the examining coroner 

has retired before trial. That practice is not at issue on appeal.
19

DISPOSITION

The trial court judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

EGERTON, J.