FINDINGS AND RECOMMENDATIONS
Jose Escobedo Salazar, a state prisoner, proceeds pro se with an amended petition for writ of habeas corpus [doc #5] pursuant to 28 U.S.C. § 2254. He challenges his convictions in the Sacramento County Superior Court, case number 06F05583.
II. FACTUAL AND PROCEDURAL BACKGROUND
The California Court of Appeal summarized the facts of Salazar's offenses of conviction in an unpublished opinion on direct appeal:
The victims, 16 and 20 years old at the time of trial, testified that while living at home with defendant, their mother, and other siblings, defendant molested them. Specifically, J.S. testified that when she was five and six years old, defendant repeatedly French-kissed her and put his hands and tongue on her vagina. Several times, defendant told her not to tell her mother. T.S. testified that when she was in the fourth to sixth grades, defendant repeatedly French-kissed her and groped her buttocks. Neither girl told the other of the molestations, but J.S. later learned T.S. had complained to their aunt about defendant's sexual abuse of T.S. When J.S. was 15 years old, she began to suffer from depression and had problems with her parents; she believed the problems were caused by defendant's sexual abuse of her. One day, after having an argument with defendant, J.S. called T.S. and asked to meet her at their grandmother's home. There, J.S. told T.S. of the molestations. The girls then told the aunt, and the matter was reported to the sheriff's department.
After interviewing both victims, a detective set up a pretext telephone call from J.S. to defendant. The call was conducted in Spanish, was about 20 minutes long, and was monitored by Detective Juan Hidalgo, who was fluent in Spanish. People's exhibit No. 3 is a CD of the entire call, and People's exhibit No. 4 is a CD of the last minute of exhibit No. 3, which Hidalgo described as being very emotional for both defendant and J.S. Detective Hidalgo prepared a written summary of People's exhibit No. 3 in English. Using this summary, he testified about the content of the call. It began with J.S. telling defendant she was having nightmares about the two of them and wanted to talk with him about what had happened when she was little and why it had happened. Defendant told her that he loved her, that she could call him whenever she wanted, and that he wanted her forgiveness if he had "offended" her. J.S. asked if "it" happened because he was having problems with "mom." Defendant replied he was "sorry" but "[t]here are things that happened that I just don't know." When J.S. repeated that she did not "understand why [he] did that to [her]," because she was his "daughter," defendant replied, "I'm trying to tell you it's a problem that one has."
J.S. finally became more specific during the conversation, asking defendant "[w]hy couldn't [he] do it with a prostitute" rather than with his "own daughters." Defendant asked for forgiveness from J.S., and she agreed if he promised never again to harm her emotionally, including "[n]othing sexual." Defendant "promise[d]" and said, "I have learned my lesson with what has happened over the past few days. I know the big errors that I committed. I ask for your forgiveness and forgiveness from your sisters."
Exhibit No. 4 was played for the jury without interruption. It was played again, but in segments, with the prosecutor asking Detective Hidalgo for the English translation of what was being said. The People then rested their case.
Several of defendant's relatives testified they had spent time with defendant's family and had never seen defendant act inappropriately with his daughters.
Defendant testified and denied having molested his daughters. He admitted kissing them in a playful manner, but said it was never anything sexual. He explained that he was very emotional during the pretext call and was apologizing for arguments he had with the girls that caused them to move out of the house. During cross-examination of defendant, exhibit No. 4 was again played in its entirety.
Exhibit No. 4 was also played twice for the jury during the prosecutor's closing argument.
People v. Salazar, No. L 2217759, 2009 WL 2217759, slip op. at 1 -2 (Cal. App. 3rd Dist. 2009).
The jury found Salazar guilty of six counts of lewd and lascivious acts on a child under 14 and two counts of attempting the same offense. The court sentenced him to a determinate prison term of 18 years. The California Court of Appeal, Third District, affirmed the conviction and sentence and the California Supreme Court denied his petition for review.
This matter proceeds on Salazar's amended petition filed on February 11, 2010, in which he asserts two grounds for relief:
A. The trial court denied him his right to due process and a fair trial by (1) permitting the prosecutor to play only a small portion of the pretext call; (2) letting a "biased interpreter" explain parts of the call; and (3) allowing the prosecutor to argue the "emotion" of the call; and
B. Trial counsel rendered ineffective assistance of counsel at trial in connection with the prosecutor's use of the ...