Today the District Attorney of San Mateo County, Stephen Wagstaffe, issued a press release indicating that the two men who conspired to sell a found iPhone 4 to tech sites last year will be charged in the theft. Gizmodo, the tech site who purchased the phone and famously reported on the iPhone 4 before release, will not be charged with any crime. Why not? Receipt of stolen property requires a scienter (intent) element which Gizmodo apparently lacks. This means, the D.A. believes Gizmodo’s story that they had no idea the phone was stolen and paid $5,000 for a phone that was merely lost. The text of the press release:

The San Mateo County District Attorney’s Office has filed misdemeanor chargesagainst two individuals for the misappropriation of an iPhone 4 prototype that was lost byan Apple employee and subsequently recovered in a Redwood City establishment by thedefendants on March 25, 2010. Brian Hogan, 22, of Redwood City was charged withone count of misappropriation of lost property, and Sage Wallower, 28, of Emeryville, wascharged with misappropriation of lost property, and possession of stolen property. Their arraignment is scheduled for Thursday, August 25, 2011 at 9:00 in Redwood City. After a consideration of all of the evidence, it was determined that no charges would be filedagainst employees of Gizmodo

CA Pen. Code § 485 (Misappropriation of lost property). One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of anotherperson not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft (and in this case grand theft = $1000 + 1 year in the penitentiary).

CA Pen. Code § 496 (Possession of stolen property).  (a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. However, if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year.

Via Gizmodo.