(Super. Ct. No. 10F00933)
The opinion of the court was delivered by: Robie , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Donald Ray Hubbard was found guilty of stalking, assault with a deadly weapon, and two counts of misdemeanor making annoying telephone calls. The trial court sentenced defendant to three years and eight months in state prison.
On appeal, defendant contends there is insufficient evidence to support his convictions for assault with a deadly weapon and making annoying telephone calls, and he is entitled to additional presentence conduct credits. We modify the award of presentence credits and affirm the judgment as modified.
Defendant lives in Fair Oaks, California, and is a residential customer of the Fair Oaks Water District (district). Tom Gray (Gray) is the district's general manager, and lives with his wife Bridgette, daughters Rachel and P. G., and son T. G. in the same neighborhood as defendant.*fn1
Defendant was involved in at least two disputes with the district as of June 2009. One dispute arose from an incident two years earlier, when the district installed a water meter on defendant's property and damaged his driveway. In June 2009, the district had left a notice on defendant's door stating he was violating their water conservation policy. Defendant went to the district's office to complain about the policy on June 12, 2009. Defendant was very upset; he was combative about the notice, and said that the district should stay off his property.
Defendant asked for Gray while he was at the district's office. When told Gray was not in, defendant said the district should not get involved in issues that he has with his neighbors. Defendant threatened the district with lawsuits over the meters installed on his driveway, and said that he would make his neighbors' lives so miserable that they would move.
On June 15, 2009, defendant called the district and asked for Gray. Told he was on vacation, defendant said he knows when Gray goes home and where he is. Defendant said he had a lawsuit against Gray and was going public the following day. In another June 2009 telephone conversation, defendant instructed the district employee to give the following message to Gray: "at this point going forward it was personal. Tell Mr. Gray that it's personal." Defendant also said something to the effect that it was not going to end, and he had the resources to continue.
Defendant went to the district office on June 18, 2009, after receiving a second notice for violating the water conservation policy. Defendant said he was quite upset about district personnel entering his property, and he wanted all correspondence to be done via telephone. Using a threatening manner, defendant said district personnel should not come on his property or they would be bitten by dogs, and reiterated that the district should not get involved in a dispute between neighbors.
On July 6, 2009, defendant came to the district office to make a payment with a plastic bag full of coins which he placed on the countertop. After a district employee refused the payment, defendant got very angry and threw the coins on the countertop and floor. He said to tell Gray that Gray's home address had been distributed throughout the district so that people like defendant can visit whenever they felt like it. Defendant claimed the district would be in trouble for refusing his payment, and it would suffer every gimmick he can come up with.
Defendant eventually paid his bill with a credit card that day. He also talked about the employee's accent and how the employee did not properly speak English. Noticing the employee's business card, defendant remarked that the employee had unusual first and last names, making it easy for defendant to find him. The employee felt personally threatened by defendant.
Defendant called the district and asked for Gray on July 30, 2009. When told Gray was not in the office, defendant replied that he was watching Gray's house on closed circuit television, and "I also know where his kids go to school."
Twenty-year-old Rachel testified that defendant had scared her and her family for a "very long time." Starting when she was 12, defendant would make Rachel nervous by the looks he would give her when he drove, as well as by how fast and how loudly he played the music when driving. Defendant's activities worsened once things started happening between him and her father.
On January 20, 2010, Rachel was coming home from work when she noticed defendant's silver BMW traveling in the opposite direction. After they passed each other, defendant made a U-turn and went in the same direction as she was going. Rachel reached the house and parked in a different location from her regular spot in order to be closer to the front door.
Rachel saw defendant coming down the street as she parked. Defendant drove on the wrong side of the road, as if coming at Rachel and her car. He was close enough to hit her or the car, so Rachel got back in her car and shut the door. Defendant then slowed down and drove by her. As he drove by, defendant looked like he was taking a picture of Rachel with his cell phone. After passing Rachel's car, defendant accelerated and drove off.
Rachel testified about another incident which took place within a couple of weeks of the January 20 incident. Rachel was with her then boyfriend Chris Coyle, who was picking her up, and parked near the Gray family's house. Rachel saw defendant's BMW as she walked toward Coyle's truck. Rachel pointed the BMW out to Coyle and then walked in front of Coyle's truck, toward the passenger side. ...