Filed 7/16/21 P. v. Hernandez CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F080886 Plaintiff and Respondent, (Kern Super. Ct. No. MF012467A) v. JUAN MANUEL HERNANDEZ, OPINION Defendant and Appellant. THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Kenneth R. Green, Jr., Judge. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- * Before Levy, Acting P.J., Franson, J. and Smith, J. INTRODUCTION Appellant and defendant Juan Manuel Hernandez pleaded no contest to assault with a firearm and was placed on probation; this court affirmed his conviction on appeal. Defendant subsequently filed a motion to vacate his conviction and claimed it was supported by newly discovered evidence of actual innocence. The trial court conducted a hearing and denied his motion. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed his own supplemental letter brief. We affirm. FACTS1 On April 17, 2017, defendant was at his home with Kelli Hernandez (Kelli).2 Max Prieto, Kelli’s former boyfriend, walked to defendant’s residence because he was going to ask Kelli for his property. Defendant threatened Prieto with a shotgun, punched Prieto, and hit him with the shotgun, causing a cut and a facial fracture. When deputies responded to the residence, defendant denied using a shotgun, but Kelli said he hit Prieto with it. The deputies obtained a search warrant and found the shotgun and methamphetamine in the house. The responding deputies believed defendant was under the influence of a controlled substance, although defendant denied it. The deputies took a urine sample from defendant, and the results were negative. (People v. Hernandez, supra, 2018 WL 2112175 at pp. *1, *3, *4 & fn. 1 [nonpub. opn.].) 1 On August 27, 2020, this court granted defendant’s “Motion to Incorporate by Reference,” filed on August 18, 2020, and incorporated by reference the record from his first appeal in People v. Hernandez (F076191, May 8, 2018) 2018 WL 2112175, into the instant appeal. 2 We refer to this witness by her first name because of the commonality of last names; no disrespect is intended. 2. PROCEDURAL BACKGROUND On April 19, 2017, a felony complaint was filed in the Superior Court of Kern County charging defendant with count 1, assault with a firearm, a Winchester 12-gauge shotgun (Pen. Code, § 245, subd. (a)(2)),3 count 2, possession of methamphetamine while armed with a loaded and operable firearm (Health …
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