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Joseph Briscoe Dane
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Joseph Dane’s Answers

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  • I have a felony that was reduced to a misdemeanor pursuant to pc 1203.4. Yes or no when asked about convictions on job apps?

    Originally I was charged with First Degree Burglary and was told if I pled guilty to second degree burglary I would get 120 days in jail and 3 years probation and upon successful completion of probation I would then be able to withdraw my plea of ...

    Joseph’s Answer

    You have to have had a lawyer in this process - verify everything you read here with them.

    First - 1203.4 didn't reduce anything. That is the dismissal section.

    There are very specific procedural things that matter as to whether or not you have to disclose this or not. It matters when and how the first degree was dismissed. It matters if you plead to the first or not. It also matters when you got your 17(b) granted (that is the reduction section).

    Talk to the lawyer that assisted you with the original deal. If for some reason you cannot or do not get ahold of them, you'll need to have your case file and court records reviewed by an attorney who can advise.

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  • No last will of testimony but do have text messages

    I was with this girl for 8 yrs we broke up and she has been my friend for the last 9 years. We date other people we talk about everything without consequences we consider each other as family. So we been living together for 17 yrs. She recently pa...

    Joseph’s Answer

    You posted under a domestic violence heading. This is a probate question. I will reclassify it so attorneys in that field will see it and hopefully respond.

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  • Can i re open my case(already convicted as a prostitution)?

    i already had a record as prostitution charge twice. i have probably could go to trial but i couldn't go to trial because i heard from lawyer if i lost from trial then i will be deported. and i asked other lawyer if i can re open my case then the...

    Joseph’s Answer

    Just trying to understand - you had one case and got diversion, then got a second one, plead guilty but want to now reopen that one? There may be a way to attack the conviction if you were not advised of immigration consequences, but you will need an immigration attorney and/or criminal defense attorney to review your case to determine what can be done. This is not an online question and answer solution.

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  • My son got charges for 23152(F)VC. Can he be charged if test result show no alcohol was present, 0.00%?

    My son was in an accident and hit a street sign; no one injured and no other people was involved. He things he fell asleep or fainted while changing lanes. The police arrived and gave him an alcohol test and a blood test. My son taken to the polic...

    Joseph’s Answer

    They can proceed on DUI charges with no alcohol involved if they can prove that he was under the influence of a drug. The blood results and levels as well as his overall evaluation will matter.

    You need a good criminal defense attorney. I'd strongly suggest you find someone who focuses on criminal law and who routinely practices in the court where this case will be heard.

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  • What is the definition of consent when it comes to sexual battery under the California Civil Code?

    Defendant claims consent as an affirmative defense for my claim of sexual battery under California Civil Code 1708.5. Are there specific elements to consent that Defendant will have to prove as part of his defense? What is the general definition o...

    Joseph’s Answer

    As a starting point, here is the definition of consent from the Penal Code (this is from PC 261.6 and is specifically directed towards rape charges, but you'll get the gist of consent from it):

    "consent" shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.

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  • Was this a legal search?

    My friend was stopped for riding his bike on the wrong side of the road. He is not on probation or parole. He has a shaved head, tattoos and is Hispanic but is not a gang member. He cooperated fully with the police officers and had been answeri...

    Joseph’s Answer

    A pat down search can be done during a valid detention if there are articulable facts that make it reasonable for the officer to believe the individual has a weapon.

    First - was this detention valid? If the initial reason for the stop was the bike infraction, they can detain for a reasonable amount of time to deal with that issue. 20 minutes for a simple ticket? That sounds a bit excessive. If the detention is prolonged, the search may be invalid.

    Next - the timing of the pat down... the reason police are allowed (sometimes) to do a pat down is for officer safety. How can they justify claiming officer safety if they interacted with your friend for 20 minutes before feeling it was necessary to frisk him? Something doesn't sound right.

    And finally - him not consenting doesnt give them the right to search.

    He needs a good criminal defense attorney. I'd strongly suggest you find someone who focuses on criminal law, who is knowledgeable about search issues and police procedure and who routinely practices in the court where this case will be heard.

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  • Will I be denied for my California real estate license if I have a petty theft conviction from 2007?

    I actually forgot all about I've never been in trouble before or since that date and was told in court several years ago it would get expunged in 2 years if no other crime was committed and I didnt think to check on it but recently found out I hav...

    Joseph’s Answer

    Several issues....

    The failure to disclose the conviction will cause your application to be denied. That failure is worse than disclosing and dealing with it.

    California does not have a true "expungement" statute. What we do have is a dismissal under Penal Code 1203.4. If granted, it doesn't wipe the case off your record, but it adds a notation that the case was dismissed. That allows you to tell most employers that you have not been convicted of the crime, but it remains on your record and still counts as a prior conviction. Even with a dismissal under 1203.4, it must still be disclosed to licensing agencies.

    You may want to contact a licensing attorney immediately to discuss this. Discuss with them how to proceed including possibly withdrawing your application before they officially deny you so you can resubmit and disclose.

    Also discuss with your licensing attorney your realistic chance to even obtain a license with that conviction.

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  • I had gotten spit on what is my legal right

    I had gotten spit on now how can a police officer charge a person with battery but a private security officer like myself and a private citizens don't have the same rights to charge that person with battery

    Joseph’s Answer

    Neither you nor the police can "charge" anyone with anything. The decision to file criminal charges such as battery is the prosecutor's. You can make a police report and/or make a private person'a arrest, but then the reports are submitted to the prosecutor for review. If they feel there is a case worth pursuing, they will file charges.

    You can initiate civil proceedings such as a small claims matter.

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  • Will a felony when I was a juvenile affect me from buying a gun?

    I was convicted of a felony when I was 14 for assault with a deadly weapon under pc 245 a1 for throwing a rock at a guy when I was fighting

    Joseph’s Answer

    It depends. If you were convicted of assault with force likely to produce great bodily injury, you are banned until age 30.

    The way to check is to do a PFEC (personal firearms eligibility check) on yourself through the DOJ.

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  • Can you get a felony for nonpayment of child support expunged.

    Did not know I had a child, lived in ca was brought to Wisconsin for court, given 2 felonies for child support and 2 years probation transferred to California.

    Joseph’s Answer

    California does not have a true "expungement" statute. What we do have is a dismissal under Penal Code 1203.4. If granted, it doesn't wipe the case off your record, but it adds a notation that the case was dismissed. That allows you to tell most employers that you have not been convicted of the crime, but it remains on your record and still counts as a prior conviction.

    Your case originates out of Wisconsin - I can only hope their laws are better to try and clean up your history. That is where anything affecting the conviction must be handled.

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