A fence (as a noun) refers to a person who receives or deals in stolen goods. Fence (as a verb) means to sell stolen goods to a fence. A fence will pay a below market price for the stolen goods and then attempt to resell them and make a large profit. Fencing is a crime in California and is prosecuted under California's Receiving Stolen Property law and can also be prosecuted under federal law when the stolen goods cross state lines. California Penal Code Section 496 (Receiving Stolen Property) defines the crime of Receiving Stolen Property as:
- Buying, receiving, selling, aiding in selling, concealing, withholding stolen or extorted property, and
- Knowing it to be stolen.
Note: If a person who had possession of the stolen property was the person who stole the goods, then the appropriate charge would be Theft.
To receive property means to take possession and control of it. Possession includes "constructive possession," but mere presence near or access to the property is not enough.
A person does not actually have to hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.
Property is stolen if it was obtained by any theft, burglary, robbery or extortion. Theft includes obtaining property by larceny, embezzlement, false pretenses or trick. Property is obtained by extortion if the property was obtained by another person with that person's consent, and that person's consent was obtained through the use of force or fear.
Knowing the property is stolen depends on the subjective and actual knowledge of the receiver of goods. While actual and subjective knowledge is often lacking, the courts turn to circumstantial evidence to establish that such a state of mind existed. Proof of the knowledge may be inferred from the circumstances surrounding the defendant's receipt of the stolen property. Among the circumstances which have been held to connect the defendant with the crime are:
- Paying an absurdly low price for the goods;
- Making false statements as to how the property came into the possession of the defendant;
- Paying cash and receiving no written receipt for the goods;
- Providing a false name or a failing to establish the identity or existence of the person from whom the defendant claimed to have received the goods;
- Selling the property under a false name and at a ridiculously low price;
- Selling the property with serial numbers or marks of identification removed.
Receiving Stolen Property can be charged as a misdemeanor or felony in California. Generally, if the value of the property is not over $400, a misdemeanor will be charged. The maximum punishment for a misdemeanor is one year in county jail. If the property value is over $400 or if the defendant has prior theft charges, most likely a felony will be charged. Someone charged with a felony is potentially facing a state prison sentence.
E-fencing has become very popular with the advent of the Internet. E-fencing is the sale of stolen merchandise on the Internet. Law enforcement is regularly surfing the Internet searching for thieves who are selling stolen wares. The success of law enforcement efforts on the Internet is reflected in the rise of conviction rates.
If you or someone you know is facing criminal charges immediately contact an experienced criminal defense attorney to learn about your rights, defenses, and any and all legal options available.