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Brian Richard Dinday

Brian Dinday’s Answers

1,307 total


  • I have a battery charge against me in Calexico,CA. I hit someone in a fight to protect my father. Am i allowed to throw the 1st.

    I have a battery charge against me in Calexico,CA. I hit someone in a fight to protect my father. Am i allowed to throw the 1st.punch to protect my fmily if a threat is present. My dad has diabetes and the neiboring business in a swap meet got in...

    Brian’s Answer

    If it was reasonable to believe under the circumstances that your father was about to be attacked immediately, then you had the right to hit the attacker to prevent the attack. That second-splitting issue is of course what your case is all about. It all depends on what the person you hit was doing and what he said that made you think you had to hit him to prevent harm to your father.

    You are permitted to use as much force as is reasonably necessary to protect him, but no more. Of course, if all that was happening was two old men shouting at each other, then no force was needed. So get a lawyer and let him help you prove yourself innocent. You do not need an arrest or conviction for assault and battery. And if you do beat the charge, then follow up with a factual innocence petition under Penal Code Section 851.8, so that your arrest gets sealed and destroyed too. Good luck

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  • Will an 15 year old infraction show up on background check by an government agency?

    I did something very stupid about 15 years ago, the charge was petty theft pc490.1 infraction with nolo-content. (i was a college student at the time and so ashamed to even discuss with a lawyer) this has been never erased from my mind... now i se...

    Brian’s Answer

    I see you posted this question twice, but Mr. Tan brought up a good issue: you can run your own background check by following this link given below. You have to get the local P.D. to take your fingerprints, then you have to send in an application and a fee and the California Dept. Of Justice will send you what they have. I predict the infraction conviction will appear. Here is an additional issue though: Employers cannot legally ask you for arrests, only convictions, but when they get a DOJ check, the response is your entire history, including arrests, not just convictions.

    Here is the DOJ link: http://ag.ca.gov/fingerprints/security.php

    So now I will re-paste my prior response to this question in your other posting

    Your infraction conviction will show up, but that does not mean that your case is hopeless. I specialize in Factual Innocence petitions in California, and just this weekend taught a Continuing Legal Education seminar to criminal defense lawyers at Yosemite Park for the California Public Defenders Association.

    I had a similar case in the San Francisco Bay Area this year that involved the exact same charge that you have. There is a loophole that might qualify you to get your arrest record vacated and perhaps the physical records and databases of your arrest also destroyed.

    When people plead guilty to infractions, it is a very short and cursory procedure. Courts do not take their time on these because they are so minor that you can't even go to jail on an infraction. However, what is not well known is that the constitution still applies to these offenses and for any plea to an infraction where the accused does NOT affirmatively waive his or her constitutional rights ON THE RECORD, the conviction is not valid. I will wager that your court reporter's transcript will show you did NOT waive your rights.

    I should be able to get that conviction vacated, and I am pretty confident of that. What is less certain is whether I will be able to succeed in getting the arrest records destroyed, but I did succeed in the other case I mentioned.

    If you want to look into this possibility, you should give me a call. My contact info, and some informative articles on sealing and destroying arrest records can be found here:

    http://lawyer-expungement.com/petition.htm

    and

    http://lawyer-expungement.com/results.htm

    Good luck.

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  • Will an 15 year old infraction show up on background check by an government agency?

    I did something very stupid about 15 years ago, the charge was petty theft pc490.1 infraction with nolo-content. (i was a college student at the time and so ashamed to even discuss with a lawyer) this has been never erased from my mind... now i se...

    Brian’s Answer

    It will show up, but that does not mean that your case is hopeless. I specialize in Factual Innocence petitions in California, and just this weekend taught a Continuing Legal Education seminar to criminal defense lawyers at Yosemite Park for the California Public Defenders Association.

    I had a similar case in the San Francisco Bay Area this year that involved the exact same charge. There is a loophole that might qualify you to get your record sealed and destroyed.

    When people plead guilty to infractions, it is a very short hand, quick, and cursory procedure. Courts do not take their time on these because they are so minor that you can't even go to jail on an infraction. However, what is not well known is that the constitution still applies to these offenses and any plea to an infraction where the accused does NOT affirmatively waive his or her constitutional rights ON THE RECORD, the conviction is not valid.

    I should be able to get that conviction vacated, and I am pretty confident of that. What is less certain is whether I will be able to succeed in getting the arrest records destroyed.

    If you want to look into this possibility, you should give me a call. My contact info, and some informative articles on sealing and destroying arrest records can be found here:

    http://lawyer-expungement.com/petition.htm

    and

    http://lawyer-expungement.com/results.htm

    Good luck.

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  • My son was charged with PC M273d(a) severity M for spanking his daughter. Is this a misdemeanor?

    arrested severity F, charged severity M - what is the difference?

    Brian’s Answer

    It means the police arrested him for a felony offense, bu the prosecutor reviewed it and decided to charge it only as a misdemeanor, so yes, it is a misdemeanor.

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  • If I filed a restraining order and no longer wish for it to be in place, how do I go about it?

    I began a relationship with an employee at work a few months, at one point he stated that he would kill me when I tried to break it off. I then filled a restraining order, I understand that a statement like that is said to be a Terrorist Threat. T...

    Brian’s Answer

    Regarding your private email to me, I'm sorry my advice offended you, but when you ask a general panel of attorneys for advice, you get what you get. No, I am not a psychologist, but people call us "counselor" for a reason. A LOT of what lawyers do is counseling and since I have seen many many personal crises in the past 35 years, I have some knowledge and experience where certain described paths usually lead. Yours is all too familiar. It's well mapped terrain, and only the inexperienced participants don't see where it leads.

    So go ahead and ignore the advice you asked for. Keep this gem of a man who threatens to kill you and is on probation for other criminal acts. What do I know? Maybe he'll make you very happy.You think the odds of that are good, do you? Miss, I was just giving you the advice I would give my daughter. Please excuse me for trying to protect you from (at the least) heartache and maybe a broken jaw or worse one day. Believe it or not, I know this guy a lot better than you do. I've met him a thousand times. He has different names and different faces, but I've seen his handiwork constantly for 35 years. Good luck.

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  • Can a defendent file perjury charges against a victim in a domestic violence case?

    My son pled guilty to a domestic violence assault case and the "victim" lied about several things and made false assertions about gang affilitation and criminal past that were never substantiated and have affected his sentencing. He was ordered to...

    Brian’s Answer

    Well, if the victim was lying about the domestic violence charge, he never should have pleaded guilty. Now that he has, it's a bit late to claim he's innocent. However, if there is conclusive evidence of her lies and his innocence, then submitting it to the court with a motion to withdraw his plea of guilty might be the way to go. If he is not satisfied with the defense and representation he got, perhaps he should consult another lawyer for a second opinion.

    If he was represented by the Public Defender, then perhaps they are too overworked to have checked into these facts before allowing him to plead guilty. If you want to help, in that case, perhaps you could retain private counsel to see if there is any way to undo the damage done. Or perhaps he actually got the best deal he could. He is in a better position to know than you.

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  • My father, husband and I ownd a condo as joint tenants. My father died. Do I inherit his share? I'm divorcing my husband.

    My husband and I own the condo, but I want a divorce. Does my father's share of our condo as a joint tenant go to me? My father put in a down payment for the condo that was larger than ours, but we paid the mortgage for 12 years. He lived there...

    Brian’s Answer

    I agree with Mr. Saltman. This can't be answered without seeing the documents. There are two methods of taking co-ownership title to realty : joint tenancy and tenancy in common. In the first, the interest of a joint owner who dies gets divided automatically with the survivors, and it happens outside of probate. With the latter, the individual ownership interests of the owners can be deeded away, or inherited. So a lawyer needs to see both the original deed and the document your dad signed when he "gave his interest to you". Good luck.

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  • I am trying to avoid Garnishment. The judgement is filed

    I was meking payments. I now fell behind again. They do not want to work with me any more. What options do I have?

    Brian’s Answer

    Other than selling some asset to pay off the debt, none that I can see. You don't state the nature of the debt or the amount. Is it so great that it renders you insolvent? Is it serious enough to think Bankruptcy? If so, talk to a BK lawyer.

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  • Been living with my partner for about 2 years. If I refinace my home and put his name on title how do l protect my equity?

    Been living with my partner for about 2 years. If I refinace my home and put his name on title how do l protect my equityI have built in the home over the 12 years. He is not buying iinto the home we are just refinancing to pay out some of his debt.

    Brian’s Answer

    If you put his name on the title, you are making a gift to him of a half interest in the property. On top of that, you are borrowing against YOUR equity to pay HIS debts? Meanwhile he has not married you and obligated himself to care for you or to financially protect you. I would strongly advise against doing this. If he is not sensible about incurring debts he cannot pay, then YOUR property will wind up being levied against one day to pay new debts.

    And why SHOULD he start being more careful about incurring debts he can't pay, when YOU are willing to bail him out? You are planning a disaster here. You should seek the advice of a family lawyer AND a financial advisor before doing any such thing. Do you want to find out if he really loves you? Decline to use your property to clean up his debts and see if he sticks around. Then you'll know. Would I be far out on the limb if I guessed that your family has "warned you about him"? Add me to the list.

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  • Are you legally obligated to discuss issue that are not properly brought before the courts

    Are you legally obligated to discuss any issues that are not properly brought before the court. Issues that are not in a motion or served

    Brian’s Answer

    Yes, you really need to give us more facts. There are times the answer would be yes and other times "no". Example: in a Court of Appeal oral argument, a justice asked a lawyer "Would you like to tell us why we should not sanction you for a frivolous appeal"? Responding would be a waiver of the need for notice of such a sanction, to which the attorney was entitled, by the Court's own rules. Rather than be sandbagged, the proper answer would have been, "I'd be happy to, but without proper notice I am not prepared to do so." In other situations where the judge is NOT trying to sandbag you, you might indulge the judge to keep him/her happy with your side. So give us more facts if you want an answer. Better still, if you have a lawyer, ask him or her.

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