By Richard Wingerden of the Law Offices of Richard Wingerden posted in Theft on October 5, 2015.

On October 5, 2015, The San Jose Mercury News reported that two San Jose residents were arrested in Morgan Hill on suspicion of stealing a car and other offenses early Thursday morning. Heriberto Rojas, 19, and Christina Zambrano-Rodriguez, 20, were arrested on suspicion of stealing a vehicle, receiving stolen property, obstructing a police investigation and violating parole, police said.

Although both men were arrested on three separate charges and violating parole, we will focus on the charge of receiving stolen property. In California, receiving of stolen property is a violation of Penal Code section 496. To be found guilty of violating this crime, the district attorney will need to prove the following two elements: first, the defendant received (or bought, sold, aided in selling, concealed, or withheld from its owner) property that had been stolen or obtained by extortion; AND second, when the defendant received (bought, sold, aided in selling, concealed or withheld) the property, the defendant knew the property to be stolen or obtained by extortion. So not only does the district attorney need to establish that the property was stolen, they have to prove that the defendant actually knew that the property was stolen. If the district attorney fails to prove both elements, then the case should result in an acquittal at trial.

The obvious and easiest way to prove that the defendant knew that the property was stolen would be to ask the defendant. Did you know that the car was stolen when your friend sold it to you? Yes. Case closed. Now, what if the defendant attended a criminal 101 class and knew to invoke his or her Fifth Amendment right against self incrimination and did not make a statement? Then the district attorney would need to establish that the defendant knew that the property was stolen by the totality of the circumstances. It is the district attorney’s job to prove this, not you. So keep your mouth shut and ask for an attorney before you make any statement.

If you happen to find yourself in this unfortunate situation, you need to know your rights and possible defenses. Call the Law Offices of Richard Wingerden for a free professional consultation at (408) 228-2297. The office serves the entire San Francisco Bay Area, including San Jose, Santa Clara, Morgan Hill, Gilroy, San Mateo, and Fremont.

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