G.R. No.

229722, December 13, 2017

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DIONISIO DE CHAVEZ, JR. Y

ESCOBIDO, Accused-Appellant.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Before the Court is an appeal filed by accused-appellant Dionisio de Chavez, Jr. y  Escobido (accused-
appellant de Chavez) assailing the Decision1 dated June 29, 2016 of the Court of Appeals in CA-G.R.
CR-HC No. 06079, which affirmed the Decision2 dated November 22, 2012 of the Regional Trial Court
(RTC) of Rosario, Batangas, Branch 87, in Criminal Case No. RY2K101.

In an Information dated April 17, 2000, accused-appellant de Chavez and another accused, Manolito
de Chavez (co-accused Manolito) were charged with murder, defined and penalized under Article 248
of the Revised Penal Code, as amended by Republic Act No. 7659, committed as follows:

That on or about the 14th day of February, 2000, at about 5:15 o'clock in the afternoon, at Barangay

Lipahan, Municipality of San Juan, Province of Batangas, Philippines and within the jurisdiction of this

Honorable Court, the above-named accused, armed with a balisong  knife, conspiring and

confederating together, acting in common accord and mutually helping each other, with intent to kill,

with treachery and evident premeditation and without any justifiable cause, did then and there

willfully, unlawfully and feloniously attack, assault and stab with the said balisong knife suddenly and

without warning one Virgilio A. Matundan, thereby inflicting upon the latter stab wounds on his back,

which directly caused his death.3

Co-accused Manolito was arrested while accused-appellant de Chavez initially evaded arrest. After pre-
trial but before trial could begin, however, co-accused Manolito died. Thus, in an Order dated February
26, 2004, the RTC ordered the dismissal of the case against Manolito, and the archival of the case
against accused-appellant de Chavez who was then still at-large.

On March 17, 2005, accused-appellant de Chavez was arrested. Accordingly, his case was revived.

After trial on the merits, the RTC rendered a Decision dated November 22, 2012, finding accused-
appellant de Chavez guilty beyond reasonable doubt of the crime of murder, the dispositive portion of
which reads:

VIEWED FROM THE FOREGOING, conclusion is inescapable that the accused Dionisio de Chavez is

GUILTY beyond reasonable doubt of the crime of MURDER defined in and penalized by Article 248 of

the Revised Penal Code as amended by Republic Act [No.] 7659 for which the Court sentences him to

suffer the penalty of RECLUSION PERPETUA, with all the accessory penalties of the law. Furthermore,

the accused Dionisio de Chavez is ordered to pay the heirs of the deceased the amount of Seventy-

Five Thousand Pesos (Php75,000.00) as civil indemnity; Seventy-Five Thousand Pesos (Php75,000.00)

as moral damages; Seventy-Five Thousand Pesos (Php75,000.00) as exemplary damages and,

Twenty-Five Thousand Pesos (Php25,000.00) as temperate damages.4

On appeal, the Court of Appeals affirmed the RTC Decision in a Decision dated June 29, 2016, to wit:

WHEREFORE, premises considered, the appeal is hereby DISMISSED, and the Decision dated

November 22, 2012 of the Regional Trial Court of Rosario, Batangas, Branch 87, in Criminal Case No.

RY2K101, is AFFIRMED.5

Hence, this final appeal to the Court. During the pendency of the present appeal, however, in a
letter6 dated August 10, 2017, Police Superintendent (P/Supt.) I Roberto R. Rabo, Superintendent of
the New Bilibid Prison, informed this Court that accused-appellant de Chavez had died on December 9,
2016 at the New Bilibid Prison Hospital. A certified true copy of the Certificate of Death7 of accused-
appellant de Chavez was attached to the said letter.

In view of the death of accused-appellant de Chavez on December 9, 2016, therefore, the criminal
case against him, which includes this appeal, is hereby dismissed.
Paragraph 1, Article 89 of the Revised Penal Code, as amended, provides the effect of death of the
accused on his criminal and civil liabilities, to wit:

ART. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties, liability

therefor is extinguished only when the death of the offender occurs before final judgment[.]

In People v. Bayotas,8 this Court applied the foregoing provision and laid down the following guidelines
when the accused dies prior to final judgment:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as

the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the

accused prior to final judgment terminates his criminal liability and only the civil liability directly

arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso

strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of [the] accused, if the

same may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code

enumerates these other sources of obligation from which the civil liability may arise as a result of the

same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor

may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of

the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either

against the executor/administrator or the estate of the accused, depending on the source of obligation

upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil

action by prescription, in cases where during the prosecution of the criminal action and prior to its

extinction, the private-offended party instituted together therewith the civil action. In such case, the

statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal

case, conformably with [the] provisions of Article 1155 of the Civil Code that should thereby avoid any

apprehension on a possible privation of right by prescription.

From the foregoing, it is clear that the death of accused-appellant de Chavez on December 9, 2016,
during the pendency of his appeal, extinguished not only his criminal liability, but also his civil
liabilities arising from or based on the crime. But, as held in Bayotas, accused-appellant de Chavez's
civil liability may be based on other sources of obligation other than ex delicto, in which case the heirs
of Virgilio A. Matundan may file a separate civil action against the estate of accused appellant de
Chavez, as may be warranted by law and procedural rules.

WHEREFORE, the appealed Decision dated June 29, 2016 of the Court of Appeals in CA-G.R. CR-HC
No. 06079 is SET ASIDE and Criminal Case No. RY2K101 before the Regional Trial Court of Rosario,
Batangas, Branch 87, is DISMISSED, by reason of the death of accused-appellant Dionisio de
Chavez, Jr. y  Escobido. No costs.

SO ORDERED.

G.R. No. 191064               October 20, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ROLANDO ARANETA y ABELLA @ BOTONG and MARILOU SANTOS y TANTAY @
MALOU, Accused-Appellants.

DECISION

MENDOZA, J.:

This is an appeal from the August 29, 2008 Decision1 of the Court of Appeals (CA), in CA-G.R. CR-
H.C. No. 02308, which affirmed the March 12, 2004 Decision2 of the Regional Trial Court, Branch
151, Pasig City (RTC), finding the accused guilty beyond reasonable doubt for violating Section 5
and Section 11 of Article II of Republic Act No. 9165, otherwise known as the "Comprehensive
Drugs Act of 2002."

Criminal informations were filed in the RTC against Rolando Araneta y Abella a.k.a. "Botong" for
Violation of Section 8 and Section 16 of R.A. No. 6425 (Dangerous Drugs Act of 1972), as amended,
in addition to the Information filed against him and co-accused Marilou Santos y Tantay a.k.a.
"Malou" for Violation of Section 15, Article III in relation to Section 21, Article IV of R.A. 6425, as
amended. In view of the enactment of R.A. No. 9165 (Comprehensive Drugs Act of 2002), the
original informations were amended accordingly. The said Informations read:

Criminal Case No. 11491-D

People vs. Araneta & Santos

(For Violation of Sec. 5 in relation to Sec. 26, Art. II, R.A. 9165)

On or about July 5, 2002 in Pasig City, and within the jurisdiction of this Honorable Court, the above
accused, conspiring and confederating together and both of them mutually helping and aiding one
another, not being lawfully authorized to sell, dispense, transport or distribute any dangerous drug,
did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Danilo S.
Damasco, a police poseur buyer, one (1) heat-sealed transparent plastic sachet containing white
crystalline substance weighing of (sic) eight (8) centigrams (0.08 gram), which was found positive to
the test for metamphetamine hydrochloride, a dangerous drug, in violation of said law.

Contrary to Law.

Criminal Case No. 11492-D

People vs. Araneta
(For Violation of Sec. 11, Art. II, R.A. 9165)

On or about July 5, 2002, in Pasig City, and within the jurisdiction of this Honorable Court, the
accused, not being lawfully authorized to use or possess any dangerous drug, did then and there
willfully, unlawfully and feloniously have in his possession and under his custody and control one (1)
heat-sealed transparent plastic sachet containing 1.22 grams of dried marijuana fruiting tops, which
was found positive to the test for marijuana, a dangerous drug, and eight (8) heat-sealed transparent
plastic sachets containing white crystalline substance with the following recorded net weight, to wit:

1) Exh. B1 RAA/070502 – 0.07 gram;

2) Exh. B2 RAA/070502 – 0.10 gram;

3) Exh. B3 RAA/070502 – 0.08 gram;

4) Exh. B4 RAA/070502 – 0.07 gram;

5) Exh. B5 RAA/070502 – 0.08 gram;

6) Exh. B6 RAA/070502 – 0.04 gram;

7) Exh. B7 RAA/070502 – 0.06 gram;

8) Exh. B8 RAA/070502 – 0.09 gram

or having a total weight of 0.59 gram, which were found positive to the test for methamphetamine
hydrochloride, a dangerous drug, in violation of the said law.
Contrary to Law.

The prosecution’s evidence was summarized in the CA decision as follows:

On July 5, 2002, between 3:00 and 3:30 o’clock in the morning, a confidential informant arrived at
the Station Drug Enforcement Unit (SDEU) of the Pasig City Police Station to report to Officer-In-
Charge SP04 Numeriano de Lara the alleged peddling of illegal drugs of live-in couple Botong and
Malou, later identified as appellants Rolando Araneta y Abella and Marilou Santos y Tantay, at
Barangay Putol, Rosario, Pasig City. SPO4 de Lara immediately formed a team composed of SPO2
Dante Zigapan who acted as the team leader, PO2 Danilo Damasco, PO1 Orig, and PO1 Bede
Montefalcon, to confirm the veracity of the informant’s report and conduct a buy-bust operation.
Before dispatching the team, SPO4 de Lara briefed them as to the alleged illegal activities of the
couple and gave their description.

SPO2 Zigapan designated PO2 Damasco as the poseur-buyer giving him a marked P100 bill to be
used in the entrapment. The team proceeded to the target area on board two vehicles. SPO2
Zigapan, Montefalcon and the informant were in one vehicle while PO2 Damasco and PO1 Orig
were together in the other vehicle.

The team arrived at the target place around 4:10 in the morning. They positioned themselves some
20-30 meters from the alley where appellants were allegedly staying. SPO2 Zigapan gave
instructions to the informant to locate the appellants. After several minutes, the informant came back
and confirmed the presence of appellants at ROTC Street, Putol, Bgy. Rosario, Pasig City.
Thereafter, the team proceeded to the said location.

PO2 Damasco and the informant went near the appellants who were standing just outside their
house. The informant and appellants exchanged greetings. After a short conversation, Botong went
inside their house. The informant introduced PO2 Damasco to Malou by saying, "I-score itong
kaibigan ko. Baka meron ka dyan." Malou then asked PO2 Damasco, "I-score ka na ba." After Malou
asked PO2 Damasco, "Magkano," the latter immediately gave her the marked P100 bill.

Malou called Botong and when the latter came out, Malou handed to him the marked money. Botong
then gave Malou a plastic sachet which she handed to PO2 Damasco.

After examining the plastic sachet, PO2 Damasco immediately gave the pre-arranged signal to the
other members of the team who thereafter rushed to the scene. PO2 Damasco arrested Malou while
SPO2 Zigapan arrested Botong.

SPO2 Zigapan recovered from Botong the marked P100 bill and after frisking him, the police officer
found in Botong’s pocket one plastic sachet of what looked like marijuana and eight plastic sachets
containing white crystalline substance. PO2 Damasco immediately placed "RAA" and the date July
5, 2002 on the plastic sachet he brought from Malou and the plastic sachets confiscated by SPO2
Zigapan from Botong.

At the police station, PO2 Damasco prepared the written request for a laboratory examination of the
confiscated plastic sachets. Together with the request, the plastic sachets were brought by PO1 Orig
to the crime laboratory. The laboratory tests gave a positive result of the presence of
methampethamine hydrochloride or what is locally known as shabu on the contents of nine (9)
sachets and marijuana on one (1) sachet.

The evidence for the accused was summarized by the CA as follows:

Between 3:30 to 4:30 o’clock in the morning of July 5, 2006, accused Rolando Araneta together with
his live-in partner and co-accused Marilou Santos were sleeping on the ground floor of their rented
apartment, when they were suddenly awakened by a loud noise coming from the upstairs. Rolando
immediately stood up and tried to go up the stairs. That was when he met a man who introduced
himself as a policeman. The man likewise pointed a gun to him and told him not to move. He was
then instructed to sit down, to which he acceded. Thereafter, the man went near the door of his
house and opened the same. Suddenly, four (4) other policemen went inside. One of the policemen
went inside the comfort room and looked for somebody. Later, he heard the said policeman utter,
"Nobody is here." One of the policemen then approached Rolando and asked him the whereabouts
of a certain Teng. Rolando answered that he did not know Teng and that there was no other person
inside the house except for him and his wife Marilou.

The police operatives searched his house. They however found nothing illegal inside his house.
After the search, the police operatives invited Rolando and Marilou to come with them to the precinct
to answer some questions. Thereat, the police operatives informed them that they are being charged
for their involvement in illegal drug activities, which they vehemently denied. PO2 Damasco,
however, told them that if they wanted to be released, Rolando and Marilou must pay P20,000.00
each. When Rolando declined to give said amount, the police operatives filed the instant cases
against them. (TSN, June 23, 2003, pp. 2-8)

In the early morning of July 5, 2003, accused-appellant Marilou Santos and her live-in partner
Rolando were sleeping when they were awakened by a noise coming from the second floor of their
house. Rolando tried to go upstairs to find out what happened, but he met a man who instantly
poked a gun at him. Marilou tried to stand up but the policeman told her, "Stay there, don’t move."
Thereafter the police shoved them near the chair. He also asked Rolando the whereabouts of Teng
but the former answered that nobody by the name of Teng lived there. While still poking the gun on
them, the policeman opened the door of their house. Five (5) policemen then entered and conducted
a search.

After the search, the policemen brought them to the police station. Thereat, PO2 Damasco asked
them several questions. Moments later, the policeman got something from the drawer and told them
that those articles belong to them. Marilou denied that the said articles belong to them since the
policemen did not recover anything from them during the search. Despite her denial, they were still
charged with Violations of Sections 15, 16 and 8 of Republic Act 9165. After a while, PO2 Damasco
demanded P20,000.00 from them in exchange for their release. As they were innocent, Marilou
refused to give said amount, prompting the police operatives to formally charge them. (TSN, July 23,
2003, p. 3)

In the early morning of July 5, 2002, Marian Rodriguez was outside the alley in ROTC, Rosario,
Pasig City when she saw both accused going out of the alley accompanied by five (5) men. The
accused and the five (5) men passed in front of Marian. She hesitated to follow the group. Since
then Marian never saw the accused again. (TSN, September 10, 2003, pp. 3-4).

In its March 12, 2004 Decision, the RTC found the accused guilty beyond reasonable doubt and
sentenced them accordingly, as follows:

WHEREFORE, the Court renders judgment, as follows:

1) In Criminal Case No. 11491-D, the Court finds accused Rolando Araneta y Abella @ Botong and
accused Marilou Santos y Tantay A Malou GUILTY beyond reasonable doubt of violation of Sec. 5 in
relation to Sec. 26, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002, and imposes upon them the penalty of LIFE IMPRISONMENT and to pay a fine P500,
000.00 each; and

2) In Criminal Case No. 11492-D (which absorbed Criminal Case No. 11490-D), the Court finds
accused Rolando Araneta y Abella @Botong GUILTY beyond reasonable doubt of violation of Sec.
11, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and
imposes upon him the penalty of imprisonment of from Twelve (12) years and One (1) day to Twenty
(20) years and to pay a fine of P300, 000.00. Considering that the accused is a detention prisoner,
he shall be credited with the period of his detention during his preventive imprisonment.

x x x           x x x          x x x

SO ORDERED.

The RTC ruled that all the elements for the prosecution of the illegal sale of dangerous drugs were
present during the buy-bust operation conducted by the police officers. These were: 1) the identity of
the buyer and the seller; 2) the object of the sale and the consideration; and 3) the delivery of the
thing sold and payment therefor.

Furthermore, the RTC held that the defense of denial, frame-up, forcible entry, and extortion could
not prevail over the positive identification by the prosecution witnesses. It noted that accused
Rolando Araneta was not candid enough to inform the court that no less than eight (8) criminal
cases were previously filed against him in different courts for violation of the Dangerous Drugs Law.
Nevertheless, out of eight (8) criminal cases filed against him, he admitted that one resulted in a
conviction and two other cases were dismissed. The other cases were then still pending trial.

Aggrieved, the accused appealed to the CA arguing that: 1) the RTC erred in not finding that they
were illegally arrested and, as such, the sachets of shabu allegedly recovered from them were
inadmissible in evidence; and 2) the RTC erred in finding them guilty beyond reasonable doubt of
the crime charged because the testimonies of the prosecution witnesses were replete with
inconsistencies and contradictions.

On August 29, 2008, the CA rendered the subject decision affirming the decision of the RTC.
In arriving at said determination, the CA applied the "objective test" in buy-bust operations laid down
in the case of People v. Doria, 301 SCRA 668, 698-699.3 The CA ruled that the prosecution
evidence met the standard for the "objective test" through the testimony of its witness, PO2 Danilo
Damasco, who acted as poseur-buyer and who related how the informant introduced him to the
accused; how the transaction was consummated through the exchange of marked money and the
sachet of shabu; and how the accused was arrested by the entrapment team.

The CA noted that the accused were arrested in flagrante delicto and that other contraband
materials were recovered from them during the ensuing search. It concluded that the corpus
delicti was duly established.

Finally, the CA stated that the inconsistencies in the testimonies of the police officers were minor or
inconsequential. The accused failed to adduce evidence to overthrow the presumption of regularity
in the performance of duty in favor of the police officers. The accused likewise failed to show proof
that the police officers did not properly perform their jobs or had ill motives against them. Moreover,
their defense of denial and frame-up for extortion purposes was self-serving, negative evidence that
was not entitled to be given greater weight than the declaration of credible witnesses who testified
on affirmative matters.

In due time, the accused filed a motion for reconsideration stressing the inadmissibility of evidence
due to their illegal arrest, and the inconsistency in the testimonies of prosecution witnesses. They
also pointed out that the apprehending officers failed to establish that the corpus delicti (sachets
of shabu or marijuana) were the very same ones sold by and seized from them. Additionally, they
claimed that the apprehending team, who had initial custody over the confiscated drug items, failed
to make an inventory and to photograph the same in their presence.

On August 24, 2009, the CA issued a resolution4 denying their motion for reconsideration. The CA
ruled, among others, that the issues on the corpus delicti and the alleged failure of the apprehending
team to make an inventory and to photograph the shabu and marijuana in the presence of the
accused were new issues not raised in their appeal brief.

In their recourse to this Court, the accused presented only one

ISSUE

WHETHER OR NOT THE ACCUSED-APPELLANTS ARE GUILTY BEYOND REASONABLE

DOUBT FOR VIOLATING SECTIONS 5 AND 11 OF ARTICLE II OF R.A. No. 9165, OTHERWISE
KNOWN AS THE "COMPREHENSIVE DRUGS ACT OF 2002.

The accused argue that the evidence adduced by the prosecution was not able to establish without a
doubt, that the dangerous drugs presented in court were the very same ones allegedly sold by them.
They insist that the police officers failed to strictly abide by the requirements of the law as regards
the proper custody of dangerous drugs seized in the course of the alleged buy-bust operation.

The prosecution stands firm by its position that the arrest of the accused and seizure of the shabu
and marijuana were lawful and that the testimonies of the prosecution witnesses were truthful. In the
absence of any credible evidence to the contrary, the police officers are presumed to have regularly
performed their official duty. More importantly, all the elements necessary for the prosecution of the
illegal sale of drugs are present, to wit: 1) the identity of the buyer and the seller, the object and
consideration; and 2) the delivery of the thing sold and payment therefor.

The prosecution asserts that the accused cannot raise for the first time on appeal the issue on the
alleged failure of the law enforcers to comply strictly with Section 21 of Republic Act No. 9165. At
any rate, the prosecution believes that it has shown that the chain of custody of the seized items was
not broken.

THE COURT’S RULING:

After due consideration, the Court finds the evidence on record sufficient enough to sustain the
verdict of conviction. It is morally convinced that the accused are guilty beyond reasonable doubt of
the offense charged against them. The rule is that factual findings of the trial court, its calibration of
the testimonies of the witnesses and its assessment of their probative weight are given high respect
if not conclusive effect, unless the trial court ignored, misconstrued, misunderstood or misinterpreted
cogent facts and circumstances of substance, which, if considered, will alter the outcome of the
case.5 In this case, the CA found no such inculpatory facts and circumstances and this Court has not
stumbled upon any either.

Doubtless, the prosecution was able to establish all the necessary elements required in the
prosecution for illegal sale of dangerous drugs, namely: 1) the identity of the buyer and seller; 2) the
identity of the object of the sale and the consideration; and 3) the delivery of the thing sold upon
payment.

PO2 Danilo Damasco, (PO2 Damasco) the poseur-buyer, clearly and convincingly narrated in detail

the entrapment operation they had conducted that led to the arrest of the accused and the seizure of
the dangerous drugs. He related on the witness stand that upon receiving information from a
confidential informant about the illegal sale of dangerous drugs by the accused, they immediately
formed an entrapment team to conduct a buy-bust operation. Upon reaching the area in the early
morning of July 5, 2002, he and the confidential informant approached the accused. After a brief
introduction and short conversation, accused Botong went inside their house while accused Malou
received the marked money from the poseur-buyer. Malou then called Botong who thereafter came
out of the house. Malou gave the marked money to Botong who, in turn, gave Malou a plastic sachet
containing a white crystalline substance. The plastic sachet was then handed over to PO2 Damasco
who examined it and immediately gave the pre-arranged signal to arrest the accused. During the
arrest, the marked money was recovered from Rolando and so were several other plastic sachets
containing white crystalline substances together with a plastic sachet containing marijuana.
Subsequently, the accused were brought to the police station and the seized items were later
brought to the Police Crime Laboratory Office for examination.

The testimony of PO2 Damasco was corroborated by SPO2 Zipagan, the entrapment team leader,
and SPO4 Numeriano De Lara, the entrapment team organizer.

Contrary to the posture of the accused, the testimony of PO2 Damasco was clear, consistent and
convincing. As correctly assessed by the CA, his testimony passed the "objective test" in buy-bust
operations.

We therefore stress that the "objective" test in buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown. This must start from the initial
contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of
the consideration until the consummation of the sale by the delivery of the illegal drug subject of the
sale. The manner by which the initial contact was made, whether or not through an informant, the
offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug,
whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be
caught but not at all cost. At the same time, however, examining the conduct of the police should not
disable courts into ignoring the accused’s predisposition to commit the crime. If there is
overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must
also be considered. Courts should look at all factors to determine the predisposition of an accused to
commit an offense in so far as they are relevant to determine the validity of the defense of
inducement.6 [Emphasis supplied]

The Court looked into the accused’s defense of denial and accusations of frame-up, planting of
evidence, forcible entry and extortion by the police officers but found them inherently weak. Aside
from their bare allegations, the accused had nothing more to show that the apprehending police
officers did not properly perform their duties or that they had ill motives against them. They failed to
substantiate their argument that they were framed-up for extortion purposes.

Absent any convincing countervailing evidence, the presumption is that the members of the buy-bust
team performed their duties in a regular manner. It was certainly a job well done. Hence, the Court
gives full faith and credit to the testimonies of the prosecution witnesses.

The Court also holds that the seized items were admissible. A search warrant or warrant of arrest
was not needed because it was a buy-bust operation and the accused were caught in flagrante
delicto in possession of, and selling, dangerous drugs to the poseur-buyer. It was definitely legal for
the buy-bust team to arrest, and search, them on the spot because a buy-bust operation is a
justifiable mode of apprehending drug pushers. A buy-bust operation is a form of entrapment
whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers
in the execution of their criminal plan. In this jurisdiction, the operation is legal and has been proven
to be an effective method of apprehending drug peddlers, provided due regard to constitutional and
legal safeguards is undertaken.7

In People v. Villamin, involving an accused arrested after he sold drugs during a buy-bust operation,
the Court ruled that it was a circumstance where a warrantless arrest is justified under Rule 113,
Sec. 5(a) of the Rules of Court. The same ruling applies to the instant case. When carried out with
due regard for constitutional and legal safeguards, it is a judicially sanctioned method of
apprehending those involved in illegal drug activities. It is a valid form of entrapment, as the idea to
commit a crime comes not from the police officers but from the accused himself. The accused is
caught in the act and must be apprehended on the spot. From the very nature of a buy-bust
operation, the absence of a warrant does not make the arrest illegal.
The illegal drugs seized were not the "fruit of the poisonous tree" as the defense would like this
Court to believe. The seizure made by the buy-bust team falls under a search incidental to a lawful
arrest under Rule 126, Sec. 13 of the Rules of Court, which pertinently provides:

A person lawfully arrested may be searched for dangerous weapons or anything which may have
been used or constitute proof in the commission of an offense without a search warrant.

Since the buy-bust operation was established as legitimate, it follows that the search was also valid,
and a warrant was likewise not needed to conduct it.8 1avvphi1

It should also be noted that after the RTC rendered a guilty verdict, the accused filed a motion for
reconsideration based on two (2) grounds, to wit: 1) inadmissibility of the seized items; and 2)
credibility of the prosecution witnesses. In the CA, they reiterated said grounds. After an unfavorable
decision and ruling, the accused added two (2) new arguments in their motion for reconsideration, to
wit: 1) the apprehending officers failed to establish that the corpus delicti (sachets of shabu or
marijuana) were the very same ones sold by and seized from them; and 2) the apprehending team
who had initial custody over the confiscated drug items failed to make an inventory and to
photograph the same in their presence.

The Court totally agrees with the ruling of the CA that the issues on the corpus delicti and the
compliance with Section 21 of RA No. 9165 were issues that were not raised by the accused in their
appellants’ brief, and were only presented in their motion for reconsideration from the decision of the
CA.

Hence, the Court cannot act, much less, rule on said new points. To do so would violate basic rules
on fair play and due process. Thus:

We point out the defense’s failure to contest the admissibility of the seized items as evidence during
trial as this was the initial point in objecting to illegally seized evidence. At the trial, the
seized shabu was duly marked, made the subject of examination and cross-examination, and
eventually offered as evidence, yet at no instance did the appellant manifest or even hint that there
were lapses in the safekeeping of seized items that affected their admissibility, integrity and
evidentiary value. In People v. Hernandez, we held that objection to the admissibility of evidence
cannot be raised for the first time on appeal; when a party desires the court to reject the evidence
offered, he must so state in the form of objection. Without such objection, he cannot raise the
question for the first time on appeal.9

WHEREFORE, the August 29, 2008 Decision of the Court of Appeals, in CA-G.R. CR-H.C. No.
02308, is AFFIRMED.

SO ORDERED.

G.R. No. 191000               September 15, 2010

JAREN TIBONG y CULLA-AG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO MORALES, J.:

Jaren Tibong y Culla-ag (petitioner) was indicted for attempted rape allegedly committed as follows:

That on or about the 14th [sic]1 day of April 2006, at Betag, Municipality of La Trinidad, Province of
Benguet, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously try and attempt to rape [AAA2] while the latter was sleeping and therefore
unconscious, by removing the latter’s pajama and panty, and thereafter holding her vagina and fondli
ng her breasts, and endeavor to have sexual intercourse with her against her will and consent,
thereby commencing in the execution of the crime of rape but did not perform all the acts of
execution which should have produced the felony as a consequence by reason that the offended
party was awakened, defended herself and escaped from him, which cause is not his spontaneous
desistance, to the damage and prejudice of the said [AAA].

That the accused and [AAA] are relatives within the 3rd civil degree.3 (Underscoring supplied)
On April 17, 2006, then 18-year-old AAA, a college student at the Benguet State University, was at
the house owned by petitioner’s parents at Betag, La Trinidad, Benguet where she was boarding.
She occupied a room at the 3-bedroom basement.4 One of the rooms was occupied by petitioner
and his wife. The third room was unoccupied.

From the account of AAA, the following transpired:

Days before the incident, petitioner’s wife left the house after a misunderstanding with him. Before
midnight of April 17,5 2006, petitioner arrived and repaired to the sofa at the basement’s living room.
AAA thereafter fell asleep but was awakened at about midnight as she "felt someone was
undressing [her]."6 She saw petitioner, her first cousin (her father and his mother being siblings),
wearing only "briefs" and "crouching over [her]," "on top of [her] bed," and pulling down her pajamas
and panties.7 She asked appellant why he was doing that, to which he replied that "[they] will have
sexual intercourse" and keep it a secret. She retorted if he was not sickened about it, to which he
replied that she need not be bothered about their being cousins.8

Continuing, AAA narrated:

She resisted and pulled up her pajamas and panties, but appellant pulled them down to her knees
and mashed her breasts. He soon told her that they would watch a "bold" movie and apply what they
watched.9 She struggled to free herself, but he forced her to lie down. She tried to shout for help, but
he covered her mouth.

AAA further recounted:

Petitioner thereafter went towards the compact disc (CD) player which was "in front of the door of
[her] room" to insert/play a CD. Finding the opportunity to escape, she grabbed her cell phone and
bag which were placed on top of a table at her bedside, ran out of the house after appellant failed to
restrain her, headed towards the highway, took a taxicab and proceeded to the house of her elder
brother BBB10 in Bahong, La Trinidad where she sought refuge.

The following morning (April 18), AAA, accompanied by BBB and an uncle, reported the incident to
the La Trinidad Police Station where P03 Chona P. Bugnay took down her sworn complaint.11

The presentation of prosecution witnesses BBB and P03 Chona Bugnay was dispensed with, the
defense having admitted the corroborative nature of their respective testimonies.

Upon the other hand, petitioner whose wife, as earlier reflected, left the house days before the
incident after a quarrel with him, denied the accusation. He claimed that in the afternoon of April 17,
2006 until past 1:00 A.M. of the following day (April 18), he was drinking liquor with his friend Benny
Malao (Malao) in three places – first at his (petitioner’s) father’s house, then at Maryland, and finally
at Malao’s boarding house, all located at La Trinidad; and on returning home drunk early morning of
April 18, he immediately went to sleep at the living room adjacent to AAA’s room.12 1avvphi1

Branch 62 of the Regional Trial Court (RTC) of La Trinidad, Benguet found petitioner guilty of
attempted rape, as charged, disposing as follows:

WHEREFORE, the accused must be, as he is hereby found guilty beyond reasonable doubt of the
crime of attempted rape.

Applying the Indeterminate Sentence Law, there being no modifying circumstance established, he is
hereby imposed a penalty of imprisonment ranging from three (3) years and four (4) months of
prision correccional medium, as minimum, to eight (8) years and six (6) months of prision mayor
medium, as maximum.

The accused is hereby ordered to pay the private complainant moral damages in the amount of
Twenty Five Thousand Pesos (P25,000.00) and to pay the costs.

SO ORDERED.13

The Court of Appeals affirmed petitioner’s conviction, hence, the present petition for review on
certiorari, contending that the prosecution failed to prove petitioner’s guilt beyond reasonable doubt.

Petitioner cites Perez v. Court of Appeals14 which held:

Petitioner’s acts of lying on top of the complainant, embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing that
petitioner actually commenced to force his penis into the complainant’s sexual organ. Rather,
these acts constitute acts of lasciviousness. x x x.15 (Emphasis and underscoring supplied)

Insisting that there was no attempted rape, petitioner argues that AAA merely testified that he told
her that they would have sexual intercourse; and that "this is not equivalent to carnal knowledge, or
even an attempt to have carnal knowledge," since there is no showing that he had commenced or
attempted to insert his penis into her sexual organ before she fled.16

Under Article 6 of the Revised Penal Code, there is an attempt to commit a felony when the offender
commences its commission directly by overt acts but does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance.

Article 336 of the Revised Penal Code provides:

Any person who shall commit any act of lasciviousness upon the other person of either sex, under
any of the circumstances mentioned in the preceding article [referring to Article 335 on rape], shall
be punished by prision correccional.

While rape and acts of lasciviousness have the same nature, they are fundamentally different.
For in rape, there is the intent to lie with a woman, whereas in acts of lasciviousness, this element is
absent.17

Ironically, during the defense’s cross examination of AAA, the existence of petitioner’s overt acts
showing his intent to lie with her was put to light. Consider the following testimony of AAA on cross
examination:

Atty. Santos [defense counsel, to witness AAA]:

xxxx

Q He did not try to insert his penis into your vagina, Madam Witness?

A He was trying to force it on me but I covered my vagina.

Q Is it not a fact that when he put down your pajama and underwear down to your knee, he was still
wearing his brief?

A Sir, his brief was already lowered down to the middle of his upper leg (witness was illustrating
by touching the middle of her upper legs).

Q When he tried to lie on top of you, you wrestled and you tried to run out from your room. Is
that correct?

A Yes, sir.

xxxx

Q And that was the time that when he opened the CD player, you took your cell phone and ran out
from your room?

A Yes, sir.

Q So in other words, Mr. Jaren Tibong had no chance of inserting his penis in your vagina
because you ran out of your room already. Correct?

A Yes, sir.18 (Emphasis and underscoring supplied)

Petitioner’s acts, as narrated by AAA, far from being mere obscene or lewd, indisputably show that
he intended to have, and was bent on consummating, carnal knowledge of AAA.

WHEREFORE, the petition is DENIED. The assailed Court of Appeals Decision19 of October 12,
2009 in CA-G.R. CR No. 31644 is AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 189971               August 23, 2010

FREDDIE CABILDO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

NACHURA, J.:

This Petition for Review on Certiorari assails the January 15, 2009 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 30871, finding petitioner Freddie Cabildo (Cabildo) and his co-accused
Jesus Palao, Jr. (Palao) and Rodrigo Abian (Abian) guilty of attempted homicide. Likewise assailed
is the CA’s October 7, 2009 Resolution2 denying the motion for reconsideration.

The CA Decision affirmed with modification the February 5, 2007 decision3 of the Regional Trial
Court (RTC) of Palawan and Puerto Princesa City, Branch 47, finding Cabildo and his co-accused
guilty of frustrated homicide.

The RTC and the CA similarly arrived at the following factual findings:

On March 19, 1999, at 11:00 p.m., a certain Joy Herrera was driving a tricycle bound for Barangay
Rizal, Magsaysay, Palawan. On board were students of St. Joseph Academy who just came from
their school’s "Seniors’ Night." Upon reaching Poblacion, Cuyo in Barangay Tenga-Tenga, petitioner
Cabildo, his co-accused Palao and Abian, and another companion, Rene Tamba, blocked their path.
After confirming Herrera’s identity, petitioner and his group forcibly pulled Herrera from the tricycle
and mauled him.4

Meanwhile, Rocky Daquer passed by the same road on board his own tricycle with passengers John
Ryan Macula, Cris Magdayao, and Dary Puno. Daquer noticed the commotion, so he alighted from
his tricycle and approached the group to pacify them. Instead, Palao turned his ire to Daquer and
threatened: "Putang-ina mo Rocky, papatayin kita!" before drawing a fan knife from his waist. This
prompted Herrera and Daquer to run away in separate directions.5

The group pursued Daquer and after covering about 10 meters, petitioner was able to grab Daquer’s
jacket, causing the latter to fall down on one knee. While petitioner held on to Daquer by his jacket,
Palao thrust his knife at the latter but missed. Palao stabbed again and hit Daquer at the lower left
side of his back causing him to fall face down on the ground. Petitioner and his group then
proceeded to maul Daquer until the police arrived.6

The responding police officers brought petitioner and his group to the police station. The knife
recovered at the crime scene was turned over to the Office of the Prosecutor. On the other hand, the
wounded Daquer was brought to the Cuyo District Hospital where he was treated by Dr. Joselito
Vicente.7 Medical findings showed that Daquer sustained an abrasion on his left knee and a stab
wound at his left lumbar area which, barring unforeseen complications, would both heal in 15 days.8

On June 1, 1999, Cabildo, Palao, and Abian were charged with frustrated homicide. The accusatory
portion of the Information reads:

That on or about the 19th day of March, 1999, more or less 11:00 o’ clock in the evening, at
Barangay Tenga-Tenga, Municipality of Cuyo, Province of Palawan, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, conspiring, confederating together
and mutually helping each other, while armed with a bladed weapon and with intent to kill, did then
and there willfully, unlawfully and feloniously attack, assault, box and stab with a knife, one ROCKY
DAQUER, hitting him in the vital parts of his body and inflicting upon him injuries which would
ordinarily cause his death thus performing all the acts of execution which would have produced the
crime of Homicide, as a consequence, but nevertheless did not produce it by reason of causes
independent of the will of the accused, that is, by the timely and able medical assistance rendered to
said Rocky Daquer, which prevented his death.

CONTRARY TO LAW.9

When arraigned, petitioner Cabildo and Palao both pleaded not guilty. Their co-accused Abian
remained at large.10 Cabildo and Palao denied any complicity in the stabbing of Daquer, and
submitted different versions of the story.

Petitioner Cabildo claimed that, on his way home from watching the "Seniors’ Night" show, he saw
Tamba, Palao and Abian blocking the tricycle of Herrera. He saw Tamba box Herrera, after which
Abian boxed Daquer and the latter ran away. After seeing this, he left the scene and went home.11
According to Palao, he and Abian watched the Seniors’ Night together on March 19, 1999. On their
way home, they saw their friend Tamba engaged in a fistfight with Herrera. Palao admitted seeing
Daquer that night while the latter was being chased by Abian. He further testified that Abian caught
up with Daquer and the latter fell down. Thereafter, the two engaged in a fistfight until the police
arrived. When the police brought Abian to the police station, Palao allegedly went with him because
he wanted to look after his friend.12

The RTC accorded more weight to the positive testimony of the prosecution witnesses over the
denial and inconsistent declarations of the accused. The trial court declared them to have conspired
and connived with one another in committing frustrated homicide. The accused were sentenced to
suffer the indeterminate penalty of imprisonment of two (2) years, four (4) months and one (1) day,
which is the medium of prision correccional, as the minimum, to eight (8) years, which is the medium
of prision mayor, as maximum. They were likewise ordered to jointly and severally pay Daquer
₱3,190.00 for his medical expenses and ₱6,000.00 for loss of earnings.13

On appeal, the CA sustained the trial court’s finding of conspiracy but modified the conviction of the
accused to attempted homicide, noting that the wounds inflicted on Daquer were not fatal.14

Consequently, the accused were meted the new sentence of imprisonment of four (4) months of
arresto mayor medium, as minimum, to four (4) years and two (2) months of prision correccional
medium, as maximum. The rest of the trial court’s disposition was affirmed.15

Accused-appellants Cabildo and Palao moved for the reconsideration16 of the foregoing decision but
the same was denied.17 Hence, the present petition interposed solely by petitioner Cabildo.

We deny the petition.

Petitioner insists on an acquittal by impugning the credibility of prosecution witnesses Macula and
Magdayao, who were not consistent in declaring whether Herrera was a passenger or a driver of the
tricycle blocked by petitioner and his cohorts. Petitioner also questions the competency of
prosecution witness Herrera who admittedly did not witness the stabbing of Daquer, and who
proffered contradicting declarations as to the length of the knife he saw on Palao. Petitioner further
posits that his guilt was not established by the requisite quantum of evidence.

We do not agree.

First, we emphasize that the findings of fact of the trial court, its assessment of the credibility of
witnesses and their testimonies, and the probative weight thereof, as well as its conclusions based
on the said findings, will not be disturbed on appeal unless it appears that the trial court overlooked
or misconstrued cogent facts and circumstances which, if considered, would alter the outcome of the
case.18

In the present case, the inconsistencies pointed out by petitioner are too trivial and immaterial as to
considerably affect the trial court’s conclusions. Whether Herrera was a driver or a passenger of the
blocked tricycle does not relate to the essential elements of the crime committed against Daquer.
Meanwhile, the competency of Herrera as a witness to the stabbing incident should have been
raised at the most opportune time, that is, during trial and not on appeal.

At any rate, Herrera’s testimony was merely intended to establish the fact that a commotion
preceded the attack on Daquer and not the stabbing incident itself. Also, Herrera’s contradicting
estimates of the length of the knife brandished by Palao do not detract from the undisputed fact that
a stab wound was inflicted on Daquer. 1âwphi1

More importantly, the RTC’s conclusions, as affirmed by the CA, were based mainly on the
testimony of the victim himself, who clearly and positively identified his assailants and the manner by
which they committed the crime. We quote the pertinent testimony of Daquer as summarized by the
RTC:

Daquer saw accused Abian, Palao and Cabildo flag down the tricycle of Herrera. Since Daquer
could not drive on, he alighted from his tricycle and approached the group of Palao and he saw that
the accused were mauling Herrera. Daquer tried to stop Palao and his group from hurting Herrera,
but instead of stopping, the accused turned to Daquer and Palao threatened to stab Daquer. Daquer
stepped back when accused Palao and Abian faced him. Then Daquer ran away but Palao and
Abian chased him. After running a distance of about ten (10) meters accused Cabildo held on to his
jacket so he fell down on one knee. While Cabildo was holding Daquer, he (Daquer) looked back
and saw Palao thrust a twenty-two (22) inch fan knife at him but missed. Then Palao stabbed him
again and this time Daquer was hit on the lower left side of his back and he fell face down on the
sand. While on the ground all the accused still boxed Daquer until the police arrived.19
It is settled that the testimony of a single yet credible and trustworthy witness suffices to support a
conviction.20 This principle finds more compelling application when the lone witness is the victim
himself whose direct and positive identification of his assailants is almost always regarded with
indubitable credibility, owing to the natural tendency of victims to seek justice, and thus strive to
remember the faces of their malefactors and the manner in which they committed the crime. 21

Petitioner tenaciously argues that conspiracy was not established sufficiently, as the CA merely
inferred the same from the hollow threat made by Palao to Daquer. Petitioner further claims that the
attack on Daquer was a spontaneous outburst of violence when the latter unexpectedly intervened in
the skirmish between petitioner, his cohorts and their original target, Herrera. As such, there was no
opportunity for the assailants to conspire and hatch a deliberate plan to attack or even attempt to kill
Daquer.

We disagree.

First, the threat uttered by Palao to Daquer was not at all empty or, as petitioner puts it, a mere
angry remark. Records show that after throwing invectives at and threatening to kill Daquer, Palao
almost simultaneously pulled out the fan knife tucked in the waistband of his pants. Palao clearly
intended to make good his threat; and if he merely wanted to warn Daquer not to meddle in the
commotion, he would not have chased the latter, who ran away upon seeing the knife. Cabildo and
Abian agreed with Palao when they assisted him in carrying out his illicit purpose – Abian in chasing
Daquer, and herein petitioner Cabildo in holding Daquer by his jacket, thus depriving him the chance
to parry the knife and emboldening Palao to execute his devious plan with ease.

True, if taken alone, the words "Putang-ina mo Rocky, papatayin kita!" would hardly lend support to
a finding of criminal intent or common criminal design among the accused. But the acts they
performed simultaneous with and subsequent to such utterance spell the difference between a
harmless outburst of anger and an injurious retaliation.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.22 The agreement need not be proven by direct evidence;23 it may be
inferred from the conduct of the parties before, during, and after the commission of the
offense,24 pointing to a joint purpose and design, concerted action, and community of
interest.25 Complicity of the accused in the criminal design may be determined by their concerted
action at the moment of consummating the crime and the form and manner in which assistance is
rendered to the person inflicting the wound.26

Here, the CA correctly affirmed the RTC’s finding that conspiracy can be deduced from the
concerted acts of petitioner Cabildo, Palao, and Abian towards the realization of their common
unlawful goal of stabbing Daquer, viz.:

Palao unequivocally announced his intention to kill Daquer and immediately drew his batangas knife
and ran after the latter, while Cabildo and Abian readily agreed with this desire by pursuing Daquer
and actually catching up with him. Cabidlo’s act of grabbing Daquer’s jacket and pulling him to the
ground provided the opportunity for Palao to stab him twice. After getting hit on the second try
Cabildo and Abian readily proceeded to maul him together with Palao.27

We likewise agree with the CA that the crime committed was attempted homicide and not frustrated
homicide. The stab wound sustained by Daquer was considerably superficial, hence, not life-
threatening. This is clear from the medical certificate issued by Dr. Vicente stating that the stab
wound was only 2 centimeters long and 5 centimeters deep. The doctor also testified that no vital
organ of Daquer was hit.

The CA imposed the correct penalty. The imposable penalty for attempted homicide is prision
correccional, which is two degrees lower than reclusion temporal, the penalty for homicide. The
maximum of the indeterminate penalty shall be taken from the imposable penalty of prision
correccional, taking into account the modifying circumstances, if any. There being no mitigating or
aggravating circumstances, the maximum penalty should be imposed in its medium period (Art. 64,
Revised Penal Code). To determine the minimum of the indeterminate penalty, the penalty of prision
correccional has to be reduced by one degree, which is arresto mayor. The minimum of the
indeterminate penalty shall be taken from the full range of arresto mayor in any of its periods. Hence,
petitioner was correctly sentenced to suffer an indeterminate penalty from four (4) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum.

WHEREFORE, foregoing considered, the Petition is DENIED. The January 15, 2009 Decision and
the October 7, 2009 Resolution of the Court of Appeals are hereby AFFIRMED in toto.

SO ORDERED.
G.R. No. 172604               August 17, 2010
(Formerly G.R. Nos. 155345-47)

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
VENANCIO ROXAS y ARGUELLES, Appellant.

DECISION

PERALTA, J.:

On appeal by way of automatic review is the Decision1 dated January 13, 2006 of the Court of
Appeals in CA-G.R. CR-H.C. No. 00666, affirming the Judgment2 of the Regional Trial Court (RTC)
convicting appellant Venancio Roxas y Arguelles (appellant) for the crimes of Kidnapping and
Serious Illegal Detention with Frustrated Murder, Violation of Republic Act (R.A.) 6539, or the Anti-
Carnapping Act of 1972, and Theft. The Informations alleged –

In Criminal Case No. Q-94-54285 for Kidnapping and Serious Illegal Detention with Frustrated
Murder –

That on or about January 12, 1994 in Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together, confederating and mutually
helping one another, did then and there by means of force, violence against and intimidation of
person and at gunpoint, willfully, unlawfully, and feloniously kidnap, carry away and detain AGNES
GUIRINDOLA, a female, thereby depriving her of her liberty, and thereafter bring her to an
uninhabited place in Barangay Bagong Pook, San Jose, Batangas and then and there, with intent to
kill and with treachery, evident premeditation, and abuse of superior strength, willfully, unlawfully and
feloniously shoot her in the face with a hand gun, thus performing all the acts of execution which
would produce the crime of MURDER as consequence, but which, nevertheless, do not produce it
by reason of causes independent of the will of the accused, that is, the able and timely medical
assistance given to said Agnes Guirindola which prevented her death, resulting to her utmost grief,
sorrow, sufferings and sleepless night, compensable in actual, moral and exemplary damages in
such amounts as may be awarded to them under the provisions of the Civil Code of the Philippines.

CONTRARY TO LAW.[3

In Criminal Case No. Q-94-54286 for Carnapping –

That on or about January 12, 1994, in Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together, confederating and mutually
helping one another, with intent to gain and by means of force, violence against and intimidation of
person and at gunpoint, did then and there, willfully, unlawfully and feloniously, take and carry away
one Nissan Sentra Model 1993 with Plate No. TKR-837, then driven by Agnes Guirindola but owned
by her mother Elvira G. Guirindola, to the damage and prejudice of said Agnes Guirindola and Elvira
G. Guirindola in such amount as may be awarded to them under the Civil Code of the Philippines.

CONTRARY TO LAW.4

and -

In Criminal Case No. 94-54287 (amended) for Robbery –

That on or about January 12, 1994 in Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together, confederating and mutually
helping one another, with intent to gain and by means of force, violence against and intimidation of
person and at gunpoint, did then and there, willfully, unlawfully and feloniously, while on board the
motor vehicle of AGNES GUIRINDOLA, a 1993 Nissan Sentra with Plate No. TKR-837, and in the
course of its trip, divested and robbed said Agnes Guirindola of the following cash, check and
personal belongings, to wit:

Cash ₱1,000.00

Check 3,000.00

Pieces of jewelry valued at 34,000.00

and in the course of execution thereof, shoot and fatally wounded Agnes Guirindola with a handgun,
which is clearly unnecessary in the commission of the crime, to the damage and prejudice of said
Agnes Guirindola, in such amount as may be awarded to her under the provisions of the Civil Code
of the Philippines.

CONTRARY TO LAW.5

The antecedent facts as culled from the records are as follows:

On January 12, 1994, around 3:00 p.m., Agnes Guirindola (Agnes), while cruising along Panay
Avenue, Quezon City, on board a red 1993 model Nissan Sentra sedan with plate number TKR-837,
was suddenly flagged down by a man wearing a PNP reflectorized vest. The man signaled her to
make a U-turn. Agnes complied and made the U-turn. The man walked in front of her car and
proceeded to the right side of the car.6 Agnes, later on, identified the man in open court as appellant,
Venancio Roxas (Roxas).

Agnes opened the right front window of the car and asked Roxas, who had positioned himself at the
front passenger side, "Ano ang problema?" Roxas replied, "Miss, one way street po ito." Agnes
explained to the man that she usually passed by the same street and it was only that day that she
had been caught. Roxas told her that the street had been made a one-way street because a girl
figured in an accident in the same street two days ago.7

Roxas then asked for Agnes' driver’s license. After taking the driver’s license, Roxas handed her a
piece of paper which she was asked to sign. Agnes noticed that it was not the usual traffic citation
ticket but, nevertheless, she pretended to sign the same by making a check thereon.8

When Agnes handed back the paper to Roxas, the latter asked her to open the door of the car so
that he could show her the one-way sign and the other traffic aide at the corner of the street. Agnes
let Roxas enter the car. Roxas then instructed Agnes to drive to the corner of the street, and upon
reaching the corner, Roxas pointed to her the one-way sign and looked for the traffic aide he had
told Agnes about. The traffic aide was not there. Agnes asked Roxas where she could drop him.
Roxas told Agnes to make a left turn from the corner of the street and that he will alight somewhere
in Mother Ignacia. Agnes obliged and made a left turn and stopped the car. Thinking that Roxas was
waiting for a bribe, Agnes took out her wallet, pulled a ₱50.00 bill and gave it to Roxas. After
receiving the money, Roxas returned to Agnes her driver’s license.9

Upon returning the driver’s license to Agnes, Roxas immediately switched off the engine of the car
and poked a gun at her saying "Miss, kailangan ko ang kotse mo." Agnes, terrified and shocked by
Roxas’ actions, cried and pleaded with him to let her go and just take the car. Roxas continued to
poke a gun at her, unmindful of what Agnes was telling him.10

After a while, Agnes heard a knock from outside the car. Roxas opened the rear door and then
someone boarded the car, occupying the back seat. The second passenger immediately reclined the
driver’s seat and pulled Agnes towards the back seat. Agnes identified this man as Roberto Gungon
(Gungon). Subsequently, Roxas took the driver’s seat and drove the car while Gungon held Agnes
on the shoulder with one hand, and her leg with the other.11

Agnes then heard Gungon say: "Boss, dalhin natin sya sa Philcoa." After crossing Mother Ignacia
Street, Gungon got his beeper and told Roxas: "Boss, dalhin na natin siya sa dati, doon na natin
siya i-s." Agnes became more frightened as she understood "s" to mean "salvage," a lingo for
summary execution.12

Along the way, Roxas stopped the car and went to a sari-sari store. Gungon was left behind, holding
Agnes, and would tighten his grip every time she made a slight move and sometimes would poke a
gun at her. Upon returning to the car, Roxas offered Agnes a bottle of soft drink and Skyflakes
biscuit. Agnes refused so Roxas handed the softdrink to Gungon and told him: "Mamaya painom mo
sa kanya at pakainin mo siya." Gungon took the bottle of softdrink and tried to force Agnes to drink
the contents thereof. Agnes refused because she saw tablets floating inside the bottle. Roxas
resumed driving, while Gungon held Agnes.13

Agnes testified that she planned to escape, but could not make a single move because every time
she made a slight move, Gungon would poke the gun at her. The windows of the car were tinted and
remained closed.14

Around 5:00 p.m., Agnes noticed that they were already at the South Superhighway. 15

Along the superhighway, Roxas stopped the car in order to urinate. Gungon guarded Agnes by
holding her. When Roxas returned, Gungon alighted to relieve himself too. While Gungon was out of
the car, Roxas sat at the driver’s seat facing Agnes and poked his gun at her. Shortly thereafter,
Gungon came back to the car and Roxas resumed driving. When Agnes took the prayer leaflet from
her wallet, Gungon looked at her wallet and saw the picture of her sister. When asked if she was the
one in the picture, Agnes told Gungon that it was her sister. Out of the blue, Gungon also took his
wallet and showed Agnes three (3) pictures which, according to him, were the pictures of his niece,
her girlfriend and that of Roxas and a lady with a little child. After showing the same to Agnes,
Gungon returned the said pictures to his wallet.16 Agnes planned to escape at that time but the car
was running at a speed of 80 to 100 kilometers per hour. Agnes just continued to pray.17

At this point, Gungon again offered the softdrink to Agnes. When she refused, Gungon became mad
and tightened his hold on Agnes, forcing her to drink it. Sensing that Gungon was already furious,
Agnes took the softdrink. After Agnes drank it, Roxas told Gungon, "Ipainom mo pa itong dalawang
tablets dahil malaki sya, mahina iyong dalawa para sa kanya." Gungon took the tablets from Roxas
and forced Agnes to swallow the same. Out of fear, Agnes took the tablets, but did not swallow
them. She placed the tablets under her tongue. When Roxas and Gungon were not looking, she took
her handkerchief and spat out the tablets into the handkerchief.18

Afterwards, Agnes told Roxas and Gungon that she was hungry and wanted to eat a McDonald’s
sandwich. Gungon replied that they were in the province and that there was no McDonald’s there.
Roxas told Agnes that they will just drop by a restaurant to buy something to eat. Roxas then
stopped by a bakery and alighted from the car, while Gungon held Agnes. It was at this point that
Agnes noticed the signboard of the bakery which read something like Sto. Tomas or San Jose,
Batangas. After a while, Roxas came back with a "taisan" cake and offered it to Agnes which she
refused. At that instance, Agnes felt dizzy and fell asleep.19

When Agnes woke up, she found herself lying at the back seat with her legs on the lap of Gungon.
The car was at a standstill. She noticed from the car’s clock on the dashboard that it was about 9:30
or 10:00 p.m. She also found out that her jewelries consisting of bracelets, pair of earrings, necklace
and a watch worth around ₱30,000.00 to ₱40,000.00, as well as her pair of shoes, were already
gone. When she asked Gungon about them, the latter told her that they were just keeping the same
for her. Agnes also lost her wallet containing a check in the amount of ₱3,000.00 and cash in the
amount of ₱1,000.00.20

Agnes also noticed that there was already a third man sitting in front of the car beside Roxas who
was still driving. She then asked them if she could relieve herself. Gungon asked Roxas if Agnes
would be allowed to relieve herself to which Roxas answered in the affirmative. Agnes fixed her hair
and then asked Gungon for her shoes. Gungon put the shoes on her feet. Roxas alighted from the
car and opened the rear door. Gungon alighted first from the car followed by Agnes. Gungon then
led Agnes to a nearby grassy area and told her, "O, dyan ka na lang umihi." After Agnes relieved
herself, and as she was about to get up and return to the car, she saw white sparks at her right side
and then she fell down. When she opened her eyes, she saw Roxas walking back towards the car
with a gun in his hand. She did not see Gungon at that particular time. Then she lost
consciousness.21

When Agnes regained consciousness, she was all alone. Roxas, Gungon and the third man, as well
as the car, were no longer there. It was very dark. She followed a "sparkling light" that led her to a
small house. Upon reaching the house, she opened the door and saw two (2) children and a
teenager singing. She asked for their help but upon seeing her, they ran away. She then saw a lady
standing at the stairs of the house carrying a baby. Agnes asked for her help but the lady went
upstairs and locked herself inside the room. Agnes followed her and knocked at the door of the room
asking for help, but still the lady did not come out of the room. She then went downstairs and lied
down on the sofa. Only then did she notice that blood was profusely oozing from her face and there
were "holes" in the left side of her neck and her right cheek.22

After a while, Agnes heard a vehicle arrive and also heard voices saying: "May taong duguan sa
loob ng bahay, tulungan natin siya!" Agnes was then carried to a Fiera motor vehicle and brought to
the Batangas Regional Hospital, where she was treated for her wounds and given first aid.23 Agnes
sustained the following injuries:

Gunshot wound, POE, Zygomatic area (R), POX Sudmandibular area (L); Fx, zygomatic arch &
condylar area, (R) Sec to GSW; Submandibular Gland involvement with sinus tract. (Exhibit "A,"
Medical Certificate dated February 1, 1994 signed by attending physician Dr. Lauro R. San Jose,
Captain MC, Neurosurgery 4-A, p. 177, Volume III, Record)

The following day, about 3:00 a.m. of January 13, 1994, the parents of Agnes and the rest of the
family arrived at the hospital. Her parents immediately arranged for her transfer to the V. Luna
General Hospital (now AFP Medical Center) in Quezon City, where she was treated further,
operated on and confined for forty-three (43) days.24 Agnes incurred actual damages amounting to
₱36,161.83 for her hospitalization, surgical operation and medical treatment, and suffered moral
damages the amount of which she cannot readily quantify, as a result of the ordeal she underwent
on that fateful day of January 12, 1994.25
Upon transfer of Agnes to the V. Luna General Hospital, her parents immediately reported the
incident to the National Bureau of Investigation (NBI) in Manila, which promptly conducted an
investigation. On January 17, 1994, some NBI agents visited her for the taking of the cartographic
sketches of Roxas and Gungon. On January 19, 1994, another group of NBI agents went to the
hospital and showed her 3 to 4 pictures of Gungon who was subsequently arrested in Davao City.
On February 1, 1994, Agnes positively identified Gungon at the NBI in a police lineup consisting of 5
to 6 men. Likewise, Agnes was able to identify certain personal effects recovered from Gungon such
as her rosary beads,26 jewelry purse,27 key chain with a key to the lock of her Nissan Sentra
car,28 and the check taken from her, which were all presented in evidence in the trial of Gungon as
well as in the trial of the instant case against Roxas.29

In the meantime, the NBI conducted a manhunt for Roxas. On September 11, 1995, Roxas was
arrested by elements of the NBI inside the municipal hall of Taysan, Batangas, where he was
working under the Office of the Mayor using the aliases "Joe Villamor" and "Marianito Villamor."

Agnes further testified that the name of appellant Venancio Roxas was supplied by the NBI, but she
was very sure that he was the person who fatally shot her. She positively identified Roxas on
January 12, 1994 during a police line-up at the NBI as the perpetrator other than Gungon, of the
crimes charged. She told the NBI agents that the person in the picture was the one who had flagged
her down and shot her on January 12, 1994.

For the defense, appellant denied committing the crimes charged against him. He claimed that it was
impossible for him to be at the place of incident on January 12, 1994. He narrated that on that same
day, at around 6:00 to 7:00 p.m., he and a certain Tranquilino Mangiliman and two others were
installing an antenna on the roof of his house. He added that he never left his house that evening.
Both Mangiliman and his wife, Hermogena Roxas, testified that on January 12, 1004, Roxas was in
his house at Feria Compound, Commonwealth Town Homes, Quezon City.

Subsequently, in a Decision30 dated September 5, 2002, the court a quo, found Roxas guilty of
Kidnapping and Serious Illegal Detention with frustrated murder, carnapping and theft, the
dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in these cases finding accused Venancio Roxas y
Arguelles guilty beyond reasonable doubt:

In Criminal Case No. Q-94-54285 for Kidnapping and serious illegal detention with frustrated murder,
and sentences him to suffer the maximum penalty of DEATH.

In Criminal Case No. Q-94-54286, for Carnapping, and sentences him to suffer the indeterminate
penalty of imprisonment from 18 years, as minimum, to 25 years, as maximum;

In Criminal Case No. Q-94-54287, for the crime of Theft, and sentences him to suffer the
indeterminate penalty of imprisonment from 2 years, 4 months and 1 day of prision correccional, as
minimum, to 8 years, 8 months and 1 day of prision mayor, as maximum, plus 1 year for the
additional ₱10,000.00 in excess of ₱20,000.00 value of the property taken or a total of 9 years, 8
months and 1 day, as maximum.

The accused shall be credited in full of his preventive imprisonment.

Accused Roxas is also liable to pay the offended party Agnes Guirindola, moral and exemplary
damages in the amount of ₱1,000,000.00 and ₱500,000.00, respectively, actual damages in the
amount of ₱36,161.83, representing her hospitalization and related expenses, and ₱38,000.00
representing the value of the articles taken from her. Accused Roxas is likewise ordered to pay Mrs.
Elvira Guirindola the amount of ₱250,257.90.00, representing the cost of repair of the subject
vehicle.

SO ORDERED.

August 29, 2002, Quezon City.31

Roxas moved for a reconsideration of the September 5, 2002 decision of the court a quo. Likewise,
noting the well-attended promulgation of the court a quo’s decision, Roxas also moved for the
inhibition of the Honorable Judge Demetrio Macapagal, Sr. He argued that the presence of then
Justice Secretary Hernando Perez showed the court's predisposition to convict him of the offenses
charged. Roxas contended that he was robbed of his right to due process because the Judge
Demetrio Macapagal, Sr. had lost the cold neutrality of an impartial judge required of him in trying
and resolving cases.
In an Order32 dated October 8, 2002, the RTC denied appellant’s motions for inhibition and
reconsideration.

Meanwhile, appellant's co-accused Roberto Gungon y Santiago was found guilty of the same
charges in a Decision33 dated March 19, 1998. Roxas was at-large during the trial and was arrested
only after the RTC rendered the judgment of conviction against Gungon. Thus, the cases, as far as
they concerned Roxas, was archived until he was eventually arrested on September 11, 1995.

The records of this case were originally elevated to this Court for automatic review. Conformably
with our ruling in People v. Mateo,34 however, the case was referred to the Court of Appeals for
intermediate review.

In its Decision35 dated January 13, 2006, the appellate court affirmed in toto the decision of the
court a quo.

Thus, this appeal, raising the following arguments:

WHETHER OR NOT THE COURT A QUO ERRED IN RENDERING IN THE ABOVE-TITLED CASE

DESPITE THE FACT THAT THE PRESIDING JUDGE OF THE COURT A QUO HAS LOST THE
COLD NEUTRALITY OF AN IMPARTIAL JUDGE, THEREBY VIOLATING THE RIGHT OF THE
ACCUSED-APPELLANT TO DUE PROCESS.

II

WHETHER OR NOT THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY OF THE OFFENSES OF (1) KIDNAPPING AND SERIOUS ILLEGAL DETENTION WITH
FRUSTRATED MURDER, (2) CARNAPPING, AND (3) THEFT.

Roxas challenged the RTC judge’s neutrality as he invoked that he was deprived of his right to due
process because of the "unexplained presence" of the former Secretary of the Department of
Justice, Hernando Perez, in court. He contended that the RTC was already predisposed to convict
him even before trial.

We are unconvinced.

The Court finds no basis for appellant's allegation that he was deprived of due process of law and
that the trial conducted was far from impartial and fair. The imputation of bias and partiality is not
supported by the record. The fact that the trial judge opted to believe the prosecution's evidence
rather than that of the defense is not a sign of bias.36

Even if the RTC had allowed the presence of then Secretary Hernando Perez and the media, there
is no sufficient basis to show that their presence or pervasive publicity unduly influenced the court's
judgment. Before we could conclude that appellant was prejudiced by the presence of the media and
Secretary Perez, he must first show substantial proof, not merely cast suspicions. There must be a
showing that adverse publicity indeed influenced the court's decision.37 We found none, in this case.

Appellant further argued that the RTC erred in finding him guilty of the crimes charged against him.

Time and again, we have ruled that the findings of the trial court on the credibility of witnesses and
their testimonies are entitled to the highest respect and will not be disturbed on appeal in the
absence of any clear showing that the trial court overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance which would have affected the result of the case.
The trial court is in a better position to decide the question of credibility, having seen and heard the
witnesses themselves and observed their behavior and manner of testifying.38

We have painstakingly examined the records of the case, particularly the testimonies for the
prosecution and the defense. However, after much examination, we find no persuasive much less
compelling reason to depart from the findings of the trial court.

Agnes not only positively identified her abductors, she also graphically narrated what happened on
January 12, 1994. Actual restraint of the victim's liberty was evident in the instant case from the
moment Agnes was taken from Panay Avenue to a remote place in Batangas. Agnes testified, thus:

Q - After Roberto Gungon pulled you towards the back seat, what happened?
A - Venancio Roxas took the driver seat and started the car, sir. I mean, he took the driver
seat and started the car.

Q – What was Roberto Gungon doing after Venancio Roxas started the car?

A – He was holding me sir.

Q – How was he holding you?

A – One hand on my shoulder and the other one is (sic) on my leg, sir.

xxxx

Q – What did Gungon do with the bottle?

A – He still forced me but when I refused he just placed it down in the car, sir.

Q – After that what happened?

A – Roxas still drove and Gungon was still holding me, then after that we went to this
gasoline station to gas up, sir.

xxxx

Q – Why were you not able to escape while you were seated and crying?

A – Because Gungon was holding me and everytime I just made a slight move, he poked the
gun at me, sir.39

xxxx

Q – While you were praying, do you know what Gungon and Roxas were doing at that time?

xxxx

A – Yes, Roxas was driving and Gungon was still holding me and he asked Roxas if he could
relieve himself, sir.

xxxx

Q – After your car stopped, what happened?

A – He told Gungon that he'll take a leak (sic) first before Gungon so Roxas alighted from the
car and took a leak (sic), sir.

Q – How about Gungon, where was he?

A - He was seated beside me, he was still holding me, sir.

Q - After Roxas finished leaking (sic), do you know what did he do (sic), if any?

A- Yes, he went back to the car, he sat at the driver's seat, he faced in front of me (sic), took
the gun and poked it at me and then Gungon alighted from the car and he was the next one
who took a leak (sic), sir.

xxxx

Q - After Roxas alighted from the car, where were you at that time?

A - I was still sitting at the car, with Gungon, sir.

Q- What was Gungon doing at that time?

A- Yes, we were waiting for Roxas and he was holding my leg, sir.40

xxxx
 Q – Previously, you testified that Gungon was holding you and everytime you made a slight
movement he would grips (sic) you firmly and poke a gun at you. My question is – for how
long had Gungon been doing this?

A - Ever since he pulled me from the driver seat to the back seat up to the time when we
were cruising along South Superhighway, sir.

Q - Up to that while you were driving?

A – Yes, sir.

Q – When you reached Batangas, in the bakery, what was Gungon's (sic) doing to you, if
any?

A- He kept on holding me although from time to time and only when I made a slight move,
sir.41

Thus, based on the foregoing testimony of Agnes, the trial court did not err in convicting appellant of
the crime of kidnapping and serious illegal detention. Article 267 of the Revised Penal Code defines
the crime, thus:

Art. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or
detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death;

1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority;

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained, or if threats to kill him shall have been made;

4. If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by Sec. 8,
Republic Act No. 7659).42

The evidence likewise reveal, undoubtedly, the commission of frustrated murder as qualified by the
circumstances of treachery and evident premeditation. The medical findings show that had it not
been due to the timely and proper medical attention given to the victim, the gunshot wound
sustained by the victim would have been fatal.

Treachery exists when an offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and specially to ensure its execution,
without risk to himself, arising from the defense which the offended party might make. As narrated by
Agnes, she could not have been aware that she would be attacked by appellant. In the darkness of
the night while she just finished relieving herself and still trying to get up, she was shot by appellant
in the head with a gun. There was no opportunity for her to defend herself, since appellant, suddenly
and without provocation, shot her as she was about to get up. The essence of treachery is the
unexpected and sudden attack on the victim which renders the latter unable and unprepared to
defend himself by reason of the suddenness and severity of the attack. This criterion applies
whether the attack is frontal or from behind.43

Moreover, the requisites of evident premeditation was likewise duly established in this case, to wit:
(a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that
the accused has clung to his determination; and (c) a sufficient lapse of time between such
determination and execution to allow him to reflect upon the consequences of his act.44

The prosecution's evidence particularly the testimony of Agnes demonstrated that Gungon and
Roxas had indeed planned to kill her from the time they took the car. As testified to by Agnes:
Q- You said that Roxas returned with a biscuit and a bottle of softdrink, what was done with
the biscuit and bottle of softdrink, if you know?

A – I refused to accept it, he insisted but still I refused so he just handed it to Gungon. He
just told Gungon "mamaya painom mo sa kanya at pakainin mo siya," sir.

Q – Why did you refuse the softdrink?

A- Simply because when he handed it to me I saw tablets floating inside the bottle, sir.45

xxxx

Q – At about 5:00 and 6:00 in the evening of January 12, 1994 where were you at that time?

xxxx

A- Actually we were not really there, its (sic) we were headed towards South Superhighway. I
mean I don’t know the exact place but I am familiar that we were heading towards South
super highway, sir.

xxxx

Q – When you reached the South Superhighway at that time what happened?

A – While we were in the car Gungon got his beeper and then he told Roxas "Boss, negative
Philcoa," sir.

xxxx

Q – While you were driving along South super highway at that time, do you know what
happened inside the car between the three of you?

A – Yes, sir. That time Gungon was still holding me and then he told Roxas "boss, dalhin na
natin siya sa dati, doon na natin siya i-s."

Q – After you heard that remark of Gungon, what did you do?

A – Well, of course I was shocked and I asked them if they were going to rape me or kill me
or just leave me somewhere, I do not know, sir.

Q – After you uttered those words, do you know if Gungon answered?

A – Yes, sir, he told me that don’t give us ideas (sic).46

xxxx

Q – What did you do when the bottle of softdrink was being offered to you?

A - I refused to get it, sir.

Q – When you refused to drink it, do you know what did Gungon do?

A – Yes, he got mad and furious, he held me so tight and forced me to drink it, sir.

Q - Now, because he was furious and he was angry at you, what did you do?

A - I took the softdrink, sir.

Q- After you drank that softdrink, what happened?

xxxx

A – Yes, sir, after drinking it Roxas offered two (2) more tablets to Gungon, he told to
Gungon "ipainom mo pa sa kanya itong dalawang tabletas dahil malaki siya, mahina iyong
dalawa para sa kanya".47

xxxx
 Q – Do you know what time was it when you woke up?

A - I guess it was about 9:30 or 10:00 in the evening, sir.

Q – How were you able to place the time?

A - There is a watch on the dashboard of the car, sir.48

Thus, from the foregoing, it is evident that the commission of the killing, albeit frustrated, was formed
from the moment the accused took the victim in Quezon City until she was ultimately "executed" in
Batangas. The lapse of more than eight hours, that is, approximately from 1:00 p.m. to 10:00 p.m.,
satisfies the last requisite for the appreciation of evident premeditation as there was sufficient time
for meditation and reflection before the commission of the crime yet appellant proceeded with the
same.

Likewise, we agree that Roxas is also guilty of violation of the Anti-Carnapping Law. R.A. 6539,
otherwise known as An Act Preventing and Penalizing Carnapping, defines carnapping as the
taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by
means of violence against or intimidation of persons, or by using force upon things." More
specifically, the elements of the crime are as follows:

1. That there is an actual taking of the vehicle;

2. That the offender intends to gain from the taking of the vehicle;

3. That the vehicle belongs to a person other than the offender himself;

4. That the taking is without the consent of the owner thereof; or that the taking was
committed by means of violence against or intimidation of persons, or by using force upon
things.

A careful examination of the evidence presented would show that all the elements of carnapping
were proven in this case. It cannot be denied that the 1993 Nissan Sentra with plate number TKR-
837 was unlawfully taken from Agnes without her consent and by means of force or intimidation,
considering that he and his co-accused alternately poked a gun at Agnes. After shooting her,
appellant also flee with the subject vehicle which shows his intent to gain. Agnes also positively
identified appellant and Gungon as the ones who took the subject vehicle from her.

Finally, we likewise agree that Roxas is only guilty of theft and not robbery as initially charged.

From the records, it appears that the jewelries and cash were taken from Agnes without the
attendance of violence or intimidation upon her person. Agnes herself testified that when she
regained consciousness, she already found her necklace, pair of earrings, watch and cash, to be
missing.49 While it was proven beyond reasonable doubt that appellant took Agnes' personal things,
there was no evidence, however, that the taking was employed with the use of force, violation and
intimidation.

PENALTIES

As to the imposable penalty, we sustain the findings of the RTC, as affirmed by the appellate court,
with modification as to the penalty for the crime of kidnapping and serious illegal detention with
frustrated murder and the awarding of damages.

The crime of kidnapping and serious illegal detention has been correctly complexed by the RTC with
frustrated murder. A complex crime is committed when a single act constitutes two or more, grave or
less grave, felonies, or when an offense is a necessary means for committing the other.

In a complex crime, the penalty for the most serious crime shall be imposed, the same to be applied
in its maximum period. Since the kidnapping and serious illegal detention is the more serious crime,
the proper penalty under Article 26750 of the Revised Penal Code, as amended by R.A. 7659, should
be applied in its maximum period; thus, the penalty should be death. However, in light of R.A. 9346,
or the Anti-Death Penalty Law, which prohibits the imposition of the death penalty, the imposition of
the penalty of reclusion perpetua instead of death is, thus, proper and ineligible for parole.

Likewise, in accordance with current jurisprudence, we modify the award of damages, and
apply People of the Philippines v. Richard O. Sarcia51 where we said:
The principal consideration for the award of damages, under the ruling in People v.
Salome and People v. Quiachon is the penalty provided by law or imposable for the offense because
of its heineousness, not the public penalty actually imposed on the offender.

xxxx

It should be noted that while the new law prohibits the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still death and the offense is still heinous. Consequently,
the civil indemnity for the victim is still Php75,000.00.

People v. Quiachon also rationcinates as follows:

With respect to the award of damages, the appellate court, following prevailing jurisprudence,
correctly awarded the following amounts: ₱75,000.00 as civil indemnity which is awarded if the crime
is qualified by circumstances warranting the imposition of the death penalty; ₱75,000.00 as moral
damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an
award of moral damages even without proof thereof, x x x.

Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A.
No. 9346, the civil indemnity of ₱75,000.00 is still proper because, following the rationcination in
People v. Victor, the said award is not dependent on the actual imposition of the death penalty but
on the fact that qualifying circumstances warranting the imposition of the death penalty attended the
commission of the offense. The Court declared that the award of ₱75,000.00 shows "not only a
reaction to the apathetic societal perception of the penal law and the financial fluctuations over time
but also the expression of the displeasure of the court of the incidence of heinous crimes against
chastity."
1avvphi1

The litmus test therefore, in the determination of the civil indemnity is the heinous character of the
crime committed, which would have warranted the imposition of the death penalty, regardless of
whether the penalty actually imposed is reduced to reclusion perpetua.52

WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals, dated January
13, 2006, in CA-G.R. CR-HC No. 00666, is AFFIRMED with MODIFICATION, insofar as to sentence
appellant Venancio Roxas y Arguelles to suffer the penalty of reclusion perpetua for the crime of
Kidnapping and Serious Illegal Detention with Frustrated Murder, and to declare him ineligible for
parole. Appellant is, likewise, ordered to pay Agnes Guirindola ₱75,000.00 as civil indemnity,
₱75,000.00 as moral damages, and ₱30,000.00 as exemplary damages. Costs against the
appellant.

SO ORDERED.

G.R. No. 182417               April 3, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALBERTO GONZALES y SANTOS, also known as TAKYO, Accused-Appellant.

DECISION

BERSAMIN, J.:

The State, and no other party, has the responsibility to explain the lapses in the procedures taken to
preserve the chain of custody of the dangerous drugs. Without the explanation by the State, the
evidence of the corpus delicti is unreliable, and the acquittal of the accused should follow on the
ground that his guilt has not been shown beyond reasonable doubt.

The Case

Alberto S. Gonzales, also known as Takyo, appeals the affirmance by the Court of Appeal (CA) of
his conviction for violating Section 5, Article II, of Republic Act No. 9165 (Comprehensive Dangerous
Drugs Act of 2002) handed down by the Regional Trial Court (RTC) in Malolos, Bulacan.

Antecedents

On June 16, 2003, Gonzales was formally charged in the RTC with a violation of Section 5, Article II,
of Republic Act No. 9165 under the following information, to wit:
That on or about the 13th day of June, 2003, in the Municipality of San Rafael, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
authority of law and legal justification, did then and there willfully, unlawfully, and feloniously sell,
trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat-
sealed transparent plastic sachet of methylamphetamine hydrochloride weighing 0.194 gram.

CONTRARY TO LAW.1

At arraignment, Gonzales entered a plea of not guilty.2

Version of the Prosecution

On June 12, 2003, an informant reported to the Provincial Drug Enforcement Group (PDEG) based
in Camp General Alejo Santos, Malolos, Bulacan, that Gonzales was engaging in illegal drug
pushing. On June 13, 2003, Police Chief Inspector Celedonio I. Morales planned to mount a buy-
bust operation against Gonzales, and designated PO1 Eduardo B. Dimla, Jr. to act as the poseur
buyer and PO2 Roel S. Chan to serve as the back-up/arresting officer. PO1 Dimla marked with his
own initials "ED" each of the two ₱100.00 bills to be used as the buy-bust money, and then recorded
the marked bills in the police blotter. At noontime of that same day, PO1 Dimla and PO2 Chan met
with the informant at Krus na Daan, San Rafael, Bulacan, and the three of them proceeded to
Banca-Banca, San Rafael, Bulacan, where the house of Gonzales was located. After PO2 Chan
posted himself beyond possible view of the suspect, PO1 Dimla and the informant approached
Gonzales, with the informant introducing PO1 Dimla to Gonzales as a buyer of shabu worth
₱200.00. Gonzales handed to PO1 Dimla a plastic sachet containing white substances, and in turn
PO1 Dimla handed the two marked ₱100.00 bills to Gonzales. At that point, PO1 Dimla removed his
cap, the pre-arranged signal, in reaction to which PO2 Chan then rushed forward and arrested
Gonzales. PO1 Dimla then immediately marked the plastic sachet with his initials "ED."3

The Bulacan Provincial Crime Laboratory Office certified that the contents the plastic sachet were
0.194 gram of shabu.4

Version of the Defense

Gonzales denied the accusation. He attested that he was only resting in front of his house in the
afternoon of June 13, 2003, when five armed men approached and forced him inside his house; that
they queried him on the whereabouts of his father, but he told them he did not know; that they
prevented his mother from leaving the house to seek help from barangay officials; and that after
searching his house, they brought him to Camp General Alejo Santos.5

Almarie, Gonzales’ sister, corroborated his version. She narrated that in the afternoon of June 13,
2003, five armed men entered their house; that when she tried to follow them inside, they shut the
door at her; that, however, she was able to see inside through the window; that she heard the men
querying her brother on the whereabouts of their father; and that she reported the incident to the
barangay chairman, but when she and the barangay chairman reached the house, the men and her
brother were no longer there.6

Ruling of the RTC

Giving credence to the narrative of PO1 Dimla as the Prosecution’s sole witness, the RTC convicted
Gonzales of the crime charged, viz:

WHEREFORE, the foregoing considered, this Court finds accused Alberto Gonzales y Santos @
Takyo GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Article II of R.A.
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and hereby sentences
him to suffer the penalty of LIFE IMPRISONMENT AND A FINE OF ₱500,000.00.

In the service of his sentence, accused who is a detention prisoner shall be credited with the entire
period during which he had undergone preventive imprisonment.

The drugs subject matter of this case is hereby forfeited in favor of the government.  The Branch
1âwphi1

Clerk of Court is hereby directed to turn over the same to the Dangerous Drugs Board for proper
disposal thereof.

SO ORDERED.7

Ruling of the CA
Gonzales appealed, insisting that the RTC erred in finding him guilty as charged despite the
Prosecution’s failure to prove his guilt beyond reasonable doubt.

Finding no error on the part of the RTC, however, the CA affirmed the conviction of Gonzales,8 to wit:

The sale of illegal drugs having been established beyond reasonable doubt, We are constrained to
uphold petitioners’ conviction. Evidently, the errors assigned and the arguments in support thereof
turn on the issue of credibility. It is an entrenched rule that the matter of assigning values to
declarations on the witness stand is best and most competently performed by the trial judge, who,
unlike appellate magistrates, can weigh such testimony in the light of the declarant’s demeanor,
conduct and attitude at the trial and is thereby placed in a more competent position to discriminate
between the true and the false. There is nothing on record to justify the deviation from this rule.
Moreover, the allegation of appellant that his constitutional right was violated cannot overcome the
presumption of regularity in the performance of official duties enjoyed by the officers tasked to
enforce the law. Unless there is clear and convincing evidence that the members of the buy-bust
team were inspired by any improper motive or were not properly performing their duty, their
testimonies with respect to the operation deserve full faith and credit.

WHEREFORE, the appeal is DISMISSED and the APPEALED decision is AFFIRMED.

SO ORDERED.

Issues

Hence, Gonzales has appealed,9 still insisting that the Prosecution did not prove his guilt for violation
of Section 5, Article II of Republic Act No. 9165 beyond reasonable doubt.10

Ruling

The appeal has merit.

To secure a conviction of the accused charged with the illegal sale of dangerous drugs as defined
and punished by Section 5, Article II of Republic Act No. 9165, the State must establish the
concurrence of the following elements, namely: (a) that the transaction or sale took place between
the accused and the poseur buyer; and (b) that the dangerous drugs subject of the transaction or
sale is presented in court as evidence of the corpus delicti.11

Anent the second element, it is indispensable for the State to establish that the dangerous drugs
subject of the transaction or sale and subsequently examined in the laboratory are the same
dangerous drugs presented in court as evidence. The identity of the dangerous drugs is essential to
proving the corpus delicti.12 To achieve that end, Section 21 of Republic Act No. 9165 and Section
21(a) of the Implementing Rules and Regulations of Republic Act No. 9165 (IRR) define the
procedures to be followed by the apprehending officers in the seizure and custody of the dangerous
drugs.

Section 21 of Republic Act No. 9165 relevantly provides:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,

Instruments/Paraphernalia and/or Laboratory Equipment. ̶ The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof;

xxxx

Similarly, Section 21(a), IRR of Republic Act No. 9165 pertinently states:

xxxx
(a) The apprehending office/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said items;

xxxx

These provisions obviously demand strict compliance, for only by such strict compliance may be
eliminated the grave mischiefs of planting or substitution of evidence and the unlawful and malicious
prosecution of the weak and unwary that they are intended to prevent. Such strict compliance is also
consistent with the doctrine that penal laws shall be construed strictly against the Government and
liberally in favor of the accused.13

The procedures underscore the value of establishing the chain of custody vis-à-vis the dangerous
drugs. The Prosecution does not prove the violation of Section 5 of Republic Act No. 9165 either
when the dangerous drugs are missing, or when there are substantial gaps in the chain of custody of
the seized dangerous drugs that raise doubts about the authenticity of the evidence presented in
court.14 Accordingly, the Dangerous Drugs Board (DDB) – the policy-making and strategy-formulating
body in the planning and formulation of policies and programs on drug prevention and control tasked
to develop and adopt a comprehensive, integrated, unified and balanced national drug abuse
prevention and control strategy15 – has expressly defined chain of custody involving the dangerous
drugs and other substances in the following terms in Section 1(b) of DDB Regulation No. 1, Series of
2002,16 to wit:

b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage,
from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of seized item shall
include the identity and signature of the person who held temporary custody of the seized item, the
date and time when such transfer of custody were made in the course of safekeeping and use in
court as evidence, and the final disposition;

Given the high concern for the due recording of the authorized movements and custody of the
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment,
the presentation as evidence in court of the dangerous drugs subject of and recovered during the
illegal sale is material in every prosecution for the illegal sale of dangerous drugs.17 Without such
dangerous drugs being presented as evidence, the State does not establish the corpus delicti,
which, literally translated from Latin, refers to the body of the crime, or the actual commission by
someone of the particular offense charged.18 Corpus delicti, as the Court puts it in People v.
Roluna,19 is:

xxx the body or substance of the crime and, in its primary sense, refers to the fact that a crime has
been actually committed. As applied to a particular offense, it means the actual commission by
someone of the particular crime charged. The corpus delicti is a compound fact made up of two (2)
things, viz: the existence of a certain act or result forming the basis of the criminal charge, and the
existence of a criminal agency as the cause of this act or result.20

The first stage in the chain of custody is the marking of the dangerous drugs or related
items.  Marking, which is the affixing on the dangerous drugs or related items by the apprehending
1âwphi1

officer or the poseur-buyer of his initials or signature or other identifying signs, should be made in the
presence of the apprehended violator immediately upon arrest. The importance of the prompt
marking cannot be denied, because succeeding handlers of the dangerous drugs or related items
will use the marking as reference. Also, the marking operates to set apart as evidence the
dangerous drugs or related items from other material from the moment they are confiscated until
they are disposed of at the close of the criminal proceedings, thereby forestalling switching, planting,
or contamination of evidence.21 In short, the marking immediately upon confiscation or recovery of
the dangerous drugs or related items is indispensable in the preservation of their integrity and
evidentiary value.

Although PO1 Dimla, the State’s lone witness,22 testified that he had marked the sachet of shabu
with his own initials of "ED" following Gonzales’ arrest,23 he did not explain, either in his court
testimony or in the joint affidavit of arrest, whether his marking had been done in the presence of
Gonzales, or done immediately upon the arrest of Gonzales. Nor did he show by testimony or
otherwise who had taken custody of the sachet of shabu after he had done his marking, and who
had subsequently brought the sachet of shabu to the police station, and, still later on, to the
laboratory. Given the possibility of just anyone bringing any quantity of shabu to the laboratory for
examination, there is now no assurance that the quantity presented here as evidence was the same
article that had been the subject of the sale by Gonzales. The indeterminateness of the identities of
the individuals who could have handled the sachet of shabu after PO1 Dimla’s marking broke the
chain of custody, and tainted the integrity of the shabu ultimately presented as evidence to the trial
court. We hardly need to reiterate that the chain of custody, which Section 1(b) of DDB Regulation
No. 1, Series of 2002, supra, explicitly describes as "the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction," demands such record of movements and
custody of seized items to include the identities and signatures of the persons who held temporary
custody of the seized item, the dates and times when such transfers of custody were made in the
course of safekeeping and use in court as evidence, and the final disposition.

A further review of the records underscores that poseur-buyer PO1Dimla nowhere recalled in court
that he and PO2 Chua had conducted the physical inventory and photographing of the shabu subject
of the sale by Gonzales. In fact, in their joint affidavit of arrest,24 PO1 Dimla and PO2 Chua did not
mention any inventory and photographing. The omission can only mean that no such inventory and
photographing were done by them. The omission of the inventory and photographing exposed
another weakness of the evidence of guilt, considering that the inventory and photographing to be
made in the presence of the accused or his representative, or within the presence of any
representative from the media, Department of Justice or any elected official, who must sign the
inventory, or be given a copy of the inventory, were really significant stages of the procedures
outlined by the law and its IRR.

By way of exception, Republic Act No. 9165 and its IRR both state that the non-compliance with the
procedures thereby delineated and set would not necessarily invalidate the seizure and custody of
the dangerous drugs provided there were justifiable grounds for the non-compliance, and provided
that the integrity of the evidence of the corpus delicti was preserved. But the non-compliance with
the procedures, to be excusable, must have to be justified by the State’s agents themselves.
Considering that PO1 Dimla tendered no justification in court for the non-compliance with the
procedures, the exception did not apply herein. The absolution of Gonzales should then follow,25 for
we cannot deny that the observance of the chain of custody as defined by the law was the only
assurance to him that his incrimination for the very serious crime had been legitimate and insulated
from either invention or malice. In this connection, the Court states that the unexplained non-
compliance with the procedures for preserving the chain of custody of the dangerous drugs has
frequently caused the Court to absolve those found guilty by the lower courts.26

WHEREFORE, we REVERSE the decision promulgated on September 28, 2007 by the Court of
Appeals; and ACQUIT appellant ALBERTO GONZALES y SANTOS, a.k.a. TAKYO, due to the
failure of the Prosecution to establish his guilt beyond reasonable doubt.

ACCORDINGLY, we DIRECT the immediate release from detention of ALBERTO GONZALES y

SANTOS, a.k.a. TAKYO, unless he is detained for some other lawful cause.

The Director of the Bureau of Corrections is ORDERED to forthwith implement this decision, and to
report his action hereon to this Court within 10 days from receipt hereof.

No pronouncement on costs of suit.

SO ORDERED.

G.R. No. 161178               February 5, 2010

ADELA B. DELGADO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and EMMANUEL ANG JARANILLA, Respondents.

DECISION

VELASCO, JR., J.:

Before the Court is a Petition for Review on Certiorari contesting the September 30, 2003
Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23701, which affirmed the July 15, 1999
Decision of the Regional Trial Court (RTC), Branch 54 in Manila, in Crim. Case No. 95-142409,
entitled People of the Philippines v. Adela Delgado. The RTC convicted petitioner Adela Delgado of
estafa.
 The Facts

Proceeding from a complaint filed by private respondent Emmanuel Ang Jaranilla, petitioner was
charged with estafa in an information that reads:

That on or about July 9, 1993, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously defraud EMMANUEL ANG JARANILLA, in the following manner,
to wit: the said accused by means of false manifestations and fraudulent representations which she
made to the said EMMANUEL ANG JARANILLA to the effect that she is in possession of $74,000.00
that she needs Philippine peso and asked him to change her dollars and by means of other similar
deceits, induced and succeeded in inducing the said EMMANUEL ANG JARANILLA to give and
deliver as in fact he gave and delivered to said accused the amount of P 2,029,820.00 on the
strength of said manifestations and representations said accused knowing fully well that same were
false and fraudulent and were made solely to obtain, as in fact he did obtain the said amount
P2,029,820.00 which amount once in her possession with intent to defraud absconded herself with
the same and misappropriated, misapplied and converted the said amount of P2,029,820.00 to her
own personal use and benefit, to the damage and prejudice of said EMMANUEL ANG JARANILLA
in the aforesaid amount of P2,029,820.00 Philippine currency.

Contrary to law.2

The facts of the case, as determined by the trial court, are as follows:

Private respondent Jaranilla was engaged in the money changing business, and had previous
transactions with petitioner Delgado.

On July 9, 1993, Delgado proposed exchanging USD 74,000 with Jaranilla for Philippine pesos at
the rate of PhP 27.43 to the dollar. After consulting with his father, Manuel Ang, Jaranilla agreed to
the proposal. Manuel drew Metrobank Check No. 061224813 in the amount of PhP 2,029,820,
payable to cash.

Jaranilla entrusted the check to his secretary, Fely Aquino (also known as Lily Ang). Aquino then
met with Delgado on July 9, 1993, at the Binondo Metrobank branch to encash the check. They both
endorsed and affixed their signatures on the check, Aquino using the name Lily Ang, the name by
which Metrobank knew her. Delgado then received the amount of PhP 2,029,820 from the bank
teller. She then claimed not to have the dollars with her, and had Aquino wait while she got the
money from her car. Delgado left and did not return.

Jaranilla contacted Delgado, but she failed to deliver the USD 74,000, despite repeated demands for
it, prompting him to file a criminal complaint against her.

In her defense, Delgado claimed to have met Aquino only on that afternoon of July 9, 1993, and that
another person, Carina Alabado, who was presented as a witness, delivered the subject dollars to
Aquino. This was denied by Aquino. 1avvphi1

The trial court found the witnesses for the prosecution more credible, and rendered its decision
convicting Delgado, the dispositive portion of which reads:

JUDGMENT is hereby rendered adjudging the accused guilty beyond reasonable doubt of the crime
of Estafa punishable under Art. 315 involving the amount of P2,029,820, considering the provisions
of Art. 315, the accused is therefore sentenced to a penalty of imprisonment of twenty (20) years
of reclusion temporal and to pay as indemnity the amount of P2,029,820 to the aggrieved party
Manuel Ang Jaranilla, with interest thereon at a legal rate, compounded annually, until the entire
amount is paid.

SO ORDERED.3

Both Jaranilla and Delgado raised the matter to the CA on appeal. Jaranilla prayed for interest on
the amount of PhP 2,029,820.00 from the date of extra-judicial demand; moral and exemplary
damages; and attorney’s fees and litigation expenses. The essence of Delgado’s appeal was that
the trial court erred in finding the prosecution witnesses more credible and convicting her.

The Ruling of the CA

The CA affirmed the conviction of Delgado, but found application for the Indeterminate Sentence
Law, and that Delgado may be sentenced to an indeterminate penalty ranging from 4 years and 2
months of prision correccional as minimum to 20 years of reclusion temporal.
The CA also set the reckoning period from when to compute the interest that would accrue on the
amount of PhP 2,029,820 from July 9, 1993, the date when Delgado absconded with the money.
The CA also awarded Jaranilla with PhP 250,000 as moral damages, PhP 250,000 as exemplary
damages, and PhP 100,000 as attorney’s fees, plus costs of litigation.

The dispositive portion of the CA decision reads:

WHEREFORE, the appelaed decision is AFFIRMED with the modifications to the effect that accused
appellant is hereby ordered to pay the complainant the following:

1. P2,029,820.00 with legal interest compounded annually from July 9, 1993;

2. P250,000.00 in concept of moral damages;

3. P250,000.00 as exemplary damages;

4. P100,000 for attorneys fees plus cost of the litigation.

The penalty against the accused-appellant should be modified in accord with the penultimate
paragraph of this decision.

SO ORDERED.4

Dissatisfied with the ruling, Delgado now brings the matter before this Court.

Assignment of Errors

In support of her petition, Delgado alleges that the RTC and the CA erred in failing to find: that the
injured party and, thus, the proper private complainant was Manuel Ang, father of Jaranilla; that she
was in the business of money changing and had the capacity to possess the USD 74,000 subject of
the transaction; and that Alabado’s testimony was more credible than that of Aquino.

Our Ruling

The petition is without merit.

As to the allegation that the injured party was Manuel Ang, and not private respondent Jaranilla, to
show that there was no damage to private respondent, this is a novel argument, but one that has
already been disposed of. Delgado claims that the source of the funds was Manuel Ang, that the
check was issued by Manuel Ang, so if there were any damage, it would have been to Manuel Ang,
not Jaranilla.

The argument is merely an attempt by Delgado to distract the court from the proven facts. Manuel
Ang was not the one with whom Delgado transacted, but his son, private respondent Jaranilla. This
is not contested by Delgado, nor does she dispute having received PhP 2,029,820 as a result of said
transaction with Jaranilla. The source of the funds is of no moment for determining Delgado’s
criminal liability.

Ownership is not a necessary element of the crime of estafa.5 In a string of cases, it has been held
that the person prejudiced or the immediate victim of the fraud need not be the owner of the
goods.6 Thus, the allegation of Delgado that the injured party was Manuel Ang has no bearing in the
resolution of this case. It was proved that in the transaction between Jaranilla and Delgado, Delgado
would deliver USD 74,000 in exchange for PhP 2,029,820, and though Jaranilla lived up to his end
of the bargain, Delgado failed to live up to hers. The allegation of Delgado that the PhP 2,029,820
did not belong to Jaranilla, had it been proved, would not matter.

Next, the argument of Delgado that she was engaged in the business of money-changing and, thus,
had the capacity to possess the USD 74,000 subject of the transaction is of no moment. As found by
the trial court, she failed to deliver the dollars in exchange for the PhP 2,029,820 to Jaranilla’s
secretary at the Binondo branch of Metrobank, and she failed to deliver it despite repeated demands
from private respondent. This belatedly alleged capacity of hers to possess the USD 74,000 cannot
in any way excuse her failure. The most eloquent refutation to this argument is the plain fact that she
has not delivered what was promised till this day, without explanation or restitution. Delgado cannot
rely on past transactions to argue that there was no deceit involved when she cannot give a reason
for her failure to deliver the promised dollars at the time agreed upon. The only conclusion that can
be reached, barring any explanation from Delgado, is that she did not possess the said dollars when
the transaction was made; thus, deceit attended the deal.
Lastly, Delgado argues that her witness, Alabado, who testified giving the dollars to Aquino, should
be accorded more credibility than Aquino.

This last-ditch effort at convincing the Court must fail.

Delgado presents no reason for us to take the word of Alabado over that of Aquino. When it comes
to weighing the credibility of the witnesses, this Court must bow to the trial court. In this regard, we
reiterate the rule that appellate courts will generally not disturb factual findings of the trial court since
the latter has the unique opportunity to weigh conflicting testimonies, having heard the witnesses
themselves and observed their deportment and manner of testifying.7 The well-entrenched rule is
that findings of fact of the trial court in the ascertainment of the credibility of witnesses and the
probative weight of the evidence on record affirmed, on appeal, by the CA are accorded high
respect, if not conclusive effect, by the Court and in absence of any justifiable reason to deviate from
the said findings.8 Petitioner has failed to present justification for this Court to disregard the factual
findings of the trial court.

The elements of the crime of estafa, under Article 315(2) of the Revised Penal Code are: (1) the
accused made false pretenses or fraudulent representations as to his or her power, influence,
qualifications, property, credit, agency, business, or imaginary transactions; (2) such false pretenses
or fraudulent representations were made prior to or simultaneous with the commission of the fraud;
(3) such false pretenses or fraudulent representations constitute the very cause which induced the
offended party to part with his or her money or property; and (4) as a result of those acts, the
offended party suffered damage.9 As all the elements have been duly proved, as found by the RTC
and affirmed by the CA, the conviction of petitioner must be upheld.

WHEREFORE, the September 30, 2003 Decision of the CA in CA-G.R. CR No. 23701 is hereby
AFFIRMED.

SO ORDERED.

G.R. No. 159381               March 26, 2010

DANILO D. ANSALDO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

For a complex crime of estafa through falsification of a public document to prosper, all the elements
of both the crimes of estafa and falsification of a public document must exist. In this case, not all the
elements of the crime of falsification of a public document are present. Consequently, petitioner can
only be found guilty of estafa.

This petition for review on certiorari assails the Decision1 of the Court of Appeals (CA) dated March
20, 2003 in CA-G.R. CR. No. 25122 which affirmed with modification the Decision2 of the Regional
Trial Court (RTC) of Malolos, Bulacan, Branch 21 in Criminal Case No. 97-156477, finding petitioner
Danilo D. Ansaldo guilty beyond reasonable doubt of the complex crime of estafa through
falsification of public/official document. Likewise assailed is the Resolution dated July 24, 2003
which denied the Motion for Reconsideration.

Factual Antecedents

The Information against the petitioner and his wife, Rosalinda Ansaldo, contained the following
accusatory allegations:

That [on] or about February 15, 1995 or sometime prior and subsequent thereto, in the City of
Manila, Philippines, the said accused, conspiring and confederating together, and mutually helping
each other, being private individuals, did then and there willfully, unlawfully and feloniously commit
estafa thru falsification of public/official document, in the following manner, to wit: the said accused,
with intent to defraud and cause damage, forged and falsified a Deed of Real Estate Mortgage which
was subsequently notarized by Notary Public Juan N. Domingo and entered in his Notarial Register
as Doc. No. 47; Page No. 59; Book No. VI; Series of 1995 and therefore a public and/or official
document, by then and there misrepresenting that they are the real spouses Nina Z. Ramirez and
Mariano Ramirez, the registered and absolute owners of a piece of land described as TCT No.
188686 situated in Barrio Bagbagan, Municipality of Muntinlupa, Province of Rizal valued at
₱500,000.00 by signing, feigning or simulating or causing to be signed, feigned and simulated the
signatures of spouses Niña Z. Ramirez and Mariano Z. Ramirez, thereby making it appear as it did
appear that spouses Niña Z. Ramirez & Mariano Ramirez participated and intervened in the
preparation and execution of the aforesaid Deed of Real Estate Mortgage, said accused well
knowing that such was not the case, in that said spouses did not participate and execute the same,
much less signed the said document, nor did they authorized [sic] herein accused or anybody else
for that matter to sign and affix their signatures in said document, which is an outright forgery and
falsification; that after the said Deed of Real Estate Mortgage was forged and falsified in the manner
above set-forth, accused presented the same to one Nora L. Herrera, who, believing in the
authenticity and genuineness of the same as represented to her by the said accused, gave and
delivered the mortgage consideration in the amount of ₱300,000.00 to the said accused, who, once
in their possession thereof, with abuse of trust and confidence and with intent to defraud, willfully,
unlawfully and feloniously misappropriated, misapplied and converted the same to their own
personal use and benefit, to the damage and prejudice of Niña Z. Ramirez in the amount of
₱500,000.00, the value of the property in question.3

On arraignment, petitioner entered a plea of not guilty. However, his wife and co-accused, remains
at large. Thereafter, trial ensued.

The Version of the Prosecution

Niña Z. Ramirez (Ramirez) wanted to subdivide her lot in Muntinlupa City. In 1993, her niece, Edna
Tadeo introduced the petitioner and his wife while they were inside her store in 509 Plaza Sta. Cruz,
Manila, as the people who could help with her problem. Petitioner and his wife represented
themselves as having direct connections with the Land Registration Authority (LRA) and assured
Ramirez that they could have her property subdivided. Ramirez thus entrusted to them her owner’s
duplicate copy of Transfer Certificate of Title (TCT) No. 188686, which covered the said lot, on
condition that it would be returned after a month. This prerequisite is evidenced by an
Acknowledgment Receipt dated January 5, 1995.4

The one-month period agreed upon elapsed with the petitioner and his wife failing to inform Ramirez
of the status of the anticipated subdivision. Ramirez repeatedly demanded them to return her
owner’s duplicate title of the land to no avail. Ramirez was later surprised to find out that the land
covered by her TCT was the subject of a document in which it appeared that she mortgaged the
same to a certain Nora Herrera. The deed was even annotated at the back of the TCT. However,
Ramirez claimed that her signature in the document was a forgery. At the time of the mortgage,
there were no other persons other than the petitioner and his wife to whom she entrusted her TCT.

The Version of the Petitioner

Petitioner denied that he was introduced to Ramirez in 1993. He claimed that in the early morning of
January 5, 1995, he was in his house when he saw Ramirez talking to his wife. He had no
knowledge of the topic of their conversation. He later signed a piece of paper without reading the
contents thereof since Ramirez assured him that it was merely for formality. The paper turned out to
be the Acknowledgment Receipt.

Petitioner denied participation in the preparation, execution and registration of the deed of real
estate mortgage. He also denied residing at the address where Ramirez sent a demand letter for the
return of her TCT. However, he admitted that his wife was engaged in the registration and follow-up
of documents covering real property.

According to the petitioner, he went to Japan with his wife on June 7, 1998. He came home but his
wife stayed behind. Upon his arrival, he was apprehended.

Ruling of the Regional Trial Court

On December 6, 2000, the trial court rendered a Decision convicting the petitioner of falsification.
The dispositive portion reads:

WHEREFORE, in view of the above observations and findings, accused Danilo Ansaldo is hereby
convicted of the crime charged in the information, defined and punished under Article 172 paragraph
1 without any mitigating nor aggravating circumstances attendant in its commission, granting the
accused the benefit of the Indeterminate Sentence Law, he is hereby sentenced to suffer an
indeterminate prision term from six (6) months of arresto mayor maximum as minimum to four (4)
years, two (2) months of prision correccional medium as maximum and to pay a fine of ₱5,000.00
and to indemnify the complainant the sum of ₱300,000.00 representing the amount received by the
Ansaldos in mortgaging the property.

Accused Danilo Ansaldo shall be credited with the full extent of his preventive imprisonment under
Article 29 of the Revised Penal Code. The bond posted for his provisional liberty is hereby cancelled.
Danilo Ansaldo’s body is hereby committed to the custody of the Director of the Bureau of
Corrections, National Penitentiary, Muntinlupa City through the City Jail Warden of Manila.

The charge against Rosalinda Ansaldo is hereby archived to be brought back to the active calendar
of the court upon her apprehension. Let warrant of arrest be issued for that purpose.

The complainant is hereby ordered to pay the docket fee corresponding to the civil damages
awarded.

SO ORDERED.5

In finding petitioner guilty of falsification, the trial court noted that no other person was in possession
of the TCT prior to the falsification other than petitioner and his wife. Based thereon, the court a
quo concluded that petitioner and his wife were the ones who mortgaged the property by pretending
to be the spouses Ramirez.

The Decision of the Court of Appeals

Petitioner appealed his conviction to the CA which affirmed with modification the Decision of the
RTC. The appellate court found petitioner guilty of the complex crime of estafa thru falsification of a
public document. The dispositive portion reads as follows:

WHEREFORE, the Decision of the court a quo finding accused-appellant guilty of the crime of
Estafa through Falsification of a Public Document and ordering him to pay the fine in the amount of
₱5,000.00 are hereby AFFIRMED with MODIFICATION as to the penalty imposed upon him.
Accordingly, there being no mitigating or aggravating circumstance to consider, accused-appellant is
hereby sentenced to suffer an indeterminate penalty of four (4) years, two (2) months and one (1)
day of Prision Correccional maximum as Minimum, to ten (10) years of Prision Mayor medium as
Maximum. He is further ordered to cause the release/discharge of the mortgage constituted on the
property in the amount of ₱300,000.00 and return to private complainant Transfer Certificate of Title
No. 188686 free from liens and encumbrances. No costs.

SO ORDERED.6

Petitioner filed a Motion for Reconsideration but it was denied by the CA in its Resolution7 dated July
24, 2003.

Issues

Hence, this petition for review raising the following issues:

1.) Whether x x x the trial court’s ruling, as affirmed by [the] court a quo erroneously
applied the legal presumption that "the possessor or user of a forged document is the author
of the forgery" in arriving at its findings that the petitioner (and his wife) committed the
complex crime of Estafa by the act of falsifying the subject "Deed of Real Estate Mortgage".

2.) Whether x x x the court a quo, seriously erred in affirming [the] trial court’s ruling which
accorded probative value to a mere certified true copy of a document entitled "Deed of Real
Estate Mortgage" in support of the latter’s factual conclusion that the signatures respectively
written above the printed names of Niña Z. Ramirez and that of her husband (which appear
therein as the parties-mortgagors) were ‘forged".

3.) Whether x x x the court a quo committed serious error in its assailed Decision in affirming
the factual findings and rulings of the trial court, and in further modifying the latter’s decision
by increasing the original sentence from an imprisonment of "six (6) months of arresto mayor
maximum as minimum to four (4) years two (2) months of prision correctional medium as
maximum" to a longer prison term of "[four] (4) years, two (2) months and one (1) day of
Prision Correctional maximum as Minimum, to ten (10) years of Prision Mayor medium as
Maximum" (and also in further ordering the petitioner "to cause the release/discharge of the
mortgage constituted on the property in the amount of ₱300,000.00 and to return to private
complainant Transfer Certificate of Title No. 188686 free from liens and encumbrances")
declaring the conviction of the petitioner for complex crime of Estafa through Falsification of
a Public Document despite the fact that the appealed decision of the trial court clearly shows
that the petitioner was found guilty of committing only the simple crime of Falsification of a
Public Document penalized under paragraph 1 of Article 172 of the Revised Penal Code.

4.) Whether x x x the court a quo has departed from the accepted and usual course of
judicial proceedings, or so far sanctioned such departure by the trial court, as to call for an
exercise of the power of supervision, when it -- failed to carefully evaluate and weigh the
 evidence presented by prosecution which clearly does not support the judgment of
conviction against the petitioner; -- overlooked certain facts of substance and value that, if
properly considered, would certainly affect the outcome of the case; -- based its findings on
misapprehension of facts, from erroneous inferences, and surmises or conjectures; and --
rendered its rulings contrary to law, the rules on evidence, and existing jurisprudence in
violation of the petitioner’s constitutional rights to due process and to be presumed innocent.

5.) Whether x x x the court a quo has also departed from the accepted and usual course of
judicial proceedings when it failed to squarely resolve or pass upon each and every
assignment of error and properly consider supporting arguments set forth by the petitioner
herein in his Appellant’s Brief, as well as the specific grounds and corresponding arguments
set forth in his Motion for Reconsideration.8

Our Ruling

The petition is partly granted.

For petitioner to be convicted of the complex crime of estafa through falsification of public document
committed in the manner described in the Information, all the elements of the two crimes of estafa
and falsification of public document must exist.9

To secure a conviction for estafa under Article 315, paragraph 2(a) of the Revised Penal Code
(RPC), the following requisites must concur:

(1) The accused made false pretenses or fraudulent representations as to his power,
influence, qualifications, property, credit, agency, business or imaginary transactions;

(2) The false pretenses or fraudulent representations were made prior to or simultaneous
with the commission of the fraud;

(3) The false pretenses or fraudulent representations constitute the very cause which
induced the offended party to part with his money or property;

(4) That as a result thereof, the offended party suffered damage.10

It is undisputed that petitioner committed estafa. He and his wife falsely represented to Ramirez that
they had the influence and capability to cause the subdivision of the lot. In view of said false
representation, Ramirez was induced to part with the owner’s copy of her TCT on the condition that
the same would be returned after a month as evidenced by the Acknowledgment Receipt.

However, petitioner and his wife never complied with their obligations. It is also on record that
Ramirez made a formal demand for the return of the TCT but petitioner and his wife failed to comply.
Their failure to return the said title despite demand is evidence of deceit that resulted in damages to
Ramirez. It was also established that the property covered by TCT No. 188686 was eventually
mortgaged for ₱300,000.00 to a third person without the knowledge and consent of Ramirez.

The following testimony of Ramirez clearly established that petitioner falsely represented that he has
the capacity to cause the subdivision of the property; that false pretenses induced her (Ramirez) to
entrust her TCT to petitioner; and that as a result thereof, Ramirez suffered damage to the extent of
₱300,000.00, thus:

Q Tell us when did you come to meet both Rosalinda and Danilo Ansaldo?

A In 1993.

Q Where did you meet these people?

A They went to my stall.

Q Where is your stall located?

A 509 Plaza Sta. Cruz, Manila.

Q How did it happen that the accused came to meet you?

A She was introduced to me by my niece.

Q What is the name of your niece?

A Edna Tadeo.

Q And why [were] these persons introduced to you by your niece?

A I might need the help of the spouses, I can trust them.

Q Help is a general term would you be more specific?

A According to my niece if I have problems about land I can ask the help of these spouses.

Q What about the spouses did they tell you anything?

A According to them they can help regarding [my problem with my lot].

Q Did you not elaborate to them the kind of problem you [were] having with the lot?

A If they can help me subdivide my lot in Muntinlupa with title no. 188686.

Q In whose name is the title?

A In our name, the two of us.

PROS GLORIOSO:

Witness producing a certified Xerox copy of Transfer Certificate of Title 188686 in the name
of Niña Ramirez which we request that this be marked Exhibit B, the second page Exhibit B-
1.

COURT:

Mark them.

PROS GLORIOSO:

Q Did you believe in their representations?

A Yes, sir, because of their good words.

Q Immediately on that first meeting you believe in them?

A Yes, sir.

Q And so after that what did you do?

A I endorsed to them the title of my land because according to them they can help me.

Q On that first meeting you endorsed to them the title?

A We first talked with each other.

Q In other words you are telling us there [were] so many things that transpired before you
finally surrendered to them the title?

A Yes, sir.

Q How long [after . . .] from that first meeting up to the time that you gave the title to them?

A About two years.

Q What kind of copy did you give to them?

A The original owner’s copy.

Q When did you give it to them?

A January 5, 1995.
 Q Why do you say that it was on January 5, 1995 that this original copy was given to them?

A They signed an acknowledgement receipt

(witness producing a document and handing the same to the prosecutor).

PROS GLORIOSO:

Witness producing a receipt which she handed to this representation.

Q There are signatures appearing at the bottom portion like received by a certain Ansaldo
who is this?

A Rosalinda Ansaldo.

Q Why did you say that?

A She signed in my presence.

Q And there is another signature contained on the left portion whose is this?

A Danilo Ansaldo.

Q Why did you say that?

A He signed in [my] presence.

Q They were together when they signed this acknowledgement receipt?

A Yes, sir.11

Petitioner did not deny his signature on the Acknowledgement Receipt.12 On the contrary he claimed
that he merely affixed his signature without reading the contents thereof13 and that he did not bother
to inquire from his wife the contents of the Acknowledgement Receipt,14 which we find not worthy of
credence. However, he admitted that his wife was engaged in facilitating the registration of
documents involving real property.15

On the other hand, we find that we cannot convict petitioner of the crime of falsification of a public
document penalized under Article 172 of the RPC. The following requisites must concur, to wit:

(1) That the offender is a private individual or a public officer or employee who took
advantage of his official position;

(2) That he committed any of the acts of falsification enumerated in article 171 of the Revised
Penal Code (which in this case involves forging a signature);

(3) That the falsification was committed in a public or official or commercial document.16

There is no doubt that petitioner is a private individual,17 being a businessman. It is likewise not

disputed that the Deed of Mortgage is a public document, having been notarized by a notary public
with the solemnities required by law. However, we find no evidence on record showing that the
petitioner and his wife falsified the subject Deed of Mortgage. There is simply no evidence showing
that petitioner had any participation in the execution of the mortgage document. There is no proof at
all that he was the one who signed the Deed of Mortgage. The testimony of Ramirez consisted only
of the following:

Q How did you come to know that the property was mortgaged?

A A woman came to me named Lina Santos and showed me the document, a mortgage
document.

Q And when was that?

A That same year.

Q Before this Lina Santos came to you were you not bothered when they did not return to
you your title after one month?
 A At first I was not bothered because we have an agreement but I [got] worried when this
Lina Santos came to me.

Q What proof can you show us that this lot was mortgaged instead of subdivided as
promised by the accused?

A There is an entry at the back an encumbrance.

PROS GLORIOSO:

We request that this be encircled and marked Exhibit B-2.

COURT:

Mark it.

PROS GLORIOSO:

Q What else aside from this encumbrance?

A Real estate mortgage document.

PROS GLORIOSO:

Witness producing a real estate mortgage consisting of four pages which we request to be
marked Exhibits D, D-1, D-2 and D-3, wherein the mortgagors are the spouses Niña Ramirez
and Mariano Ramirez and the mortgagee is one Nora Herrera.

COURT:

Mark them.

PROS GLORIOSO:

Q I noticed that this Exhibit D-2 signatures appearing atop the typewritten name Niña
Ramirez will you tell us whose signature is that?

A I do not know but this is not my signature.

Q What about the signature appearing atop the typewritten name Mariano Ramirez whose
signature is that?

A I do not know but definitely this is not the signature of my husband.

Q You deny these are your signatures, will you please show to us your actual signature?

A (Witness signing on a piece of paper handed to her by the prosecutor.)18

On cross-examination, Ramirez also narrated that:

Q And due to the alleged failure of both accused to deliver to you the subdivision of the lot
that was the time that you made an inquiry and found out that your lot was already
mortgaged, is it not?

A A woman informed me about it.

Q After informing you what you did was to verify your title at the office of the Register of
Deeds, is it not?

A Yes, sir.

Q And you found out that your lot was actually mortgaged?

A Yes, sir.

Q Did you secure a copy, - and [did] you know from that very moment the name in whose
favor your lot was mortgaged?
 A Yes, sir.

Q Did you secure a copy of the deed of mortgage of your lot?

A It is there.

Q And you noticed the residence of the person in whose favor your lot was mortgaged?

A Yes, sir.

Q The name of the mortgagee was a certain Nora Herrera?

A Yes, sir.

Q Did you go to the residence of Nora Herrera?

A No, sir.

Q Did it not occur to your mind to do that in order to tell Nora Herrera that [you were] not the
person who mortgaged the land in her favor?

A Nora Herrera was already informed by somebody that I was not the same person who
mortgaged the lot to her.

Q From the date you discovered that the lot was already mortgaged to Nora Herrera did you
see personally Nora Herrera?

A No, sir, no more.19

Based on the foregoing, we cannot conclude beyond reasonable doubt that it was petitioner and his
wife who committed the forgery. In the first place, Lina Santos (Santos) was not presented to
corroborate the testimony of Ramirez that she was the one who informed the latter regarding the
mortgage or she could shed light on the circumstances leading to her alleged discovery that the
subject property had been mortgaged. Moreover, as narrated by Ramirez, Santos did not
categorically point to herein petitioner as the author of the forgery. If at all, Santos only claimed that
the property of Ramirez had been mortgaged but did not mention the personalities involved therein.
Likewise, the failure to present the so-called mortgagee, Nora Herrera, casts doubt as to the
participation of the petitioner in the execution of the mortgage instrument. Undoubtedly, Nora
Herrera could have testified on the persons she dealt with relative to the mortgage.

The denial of Ramirez that she affixed her signature on the Deed of mortgage does not prove that it
was petitioner and his wife who signed in her behalf. Neither could it be considered as proof that
petitioner, together with his wife, falsely represented themselves as the spouses Ramirez. 1avvphi1

For committing the offense of estafa against Ramirez, the petitioner must be penalized in the
manner provided by law. In this regard, Article 315 of the RPC states that the penalty of prision
correccional in its maximum period to prision mayor in its minimum period shall be imposed if the
amount of the fraud is over ₱12,000.00 but does not exceed ₱22,000.00. Should the amount exceed
the latter sum, the penalty provided shall be imposed in its maximum period, adding one year for
each additional ₱10,000.00. However, the total penalty that may be imposed should not exceed 20
years. In such cases, the penalty shall be referred to as prision mayor or reclusion temporal.

Under the Indeterminate Sentence Law (ISL), whenever an offense is punished by the RPC or its
amendments, the accused shall be sentenced by the court to an indeterminate penalty, the
maximum term of which, in view of the attending circumstances, can properly be imposed under the
RPC, while the minimum term of which shall be within the range of the penalty next lower to that
prescribed for the offense.

The amount defrauded in this case is ₱300,000.00 which is the mortgage amount. Thus, the
maximum imposable penalty shall be 20 years of reclusion temporal. Applying the ISL, the minimum
penalty is prision correccional in its minimum and medium periods with a range of six (6) months and
one (1) day to four (4) years and two (2) months.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals
is MODIFIED. Petitioner Danilo D. Ansaldo is hereby found guilty of the crime of estafa and is
sentenced to suffer an indeterminate penalty of four (4) years and two (2) months of prision
correccional as minimum to twenty (20) years of reclusion temporal as maximum.
SO ORDERED.

G.R. No. 172896               April 19, 2010

ROÑO SEGURITAN y JARA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

In a criminal case, factual findings of the trial court are generally accorded great weight and respect
on appeal, especially when such findings are supported by substantial evidence on record.1 It is only
in exceptional circumstances, such as when the trial court overlooked material and relevant matters,
that this Court will re-calibrate and evaluate the factual findings of the court below. In this case, we
hold that the trial court did not overlook such factual matters; consequently, we find no necessity to
review, much less, overturn its factual findings.

This petition for review on certiorari assails the Decision2 of the Court of Appeals (CA) dated
February 24, 2006 in CA-G.R. CR No. 25069 which affirmed with modification the Judgment3 of the
Regional Trial Court (RTC) of Aparri, Cagayan, Branch 06 in Criminal Case No. VI-892 finding
petitioner Roño Seguritan y Jara guilty beyond reasonable doubt of the crime of homicide. Likewise
impugned is the Resolution4 dated May 23, 2006 which denied the Motion for Reconsideration.5

Factual Antecedents

On October 1, 1996, petitioner was charged with Homicide in an Information, 6 the accusatory

portion of which reads as follows:

That on or about November 25,1995, in the municipality of Gonzaga, province of Cagayan, and
within the jurisdiction of this Honorable Court, the above-named accused, ROÑO SEGURITAN y
JARA alias Ranio, with intent to kill, did then and there willfully, unlawfully and feloniously assault,
attack and box one Lucrecio Seguritan, inflicting upon the latter head injuries which caused his
death.

Contrary to law.

During the arraignment, petitioner entered a plea of not guilty. Thereafter, trial ensued.

The Version of the Prosecution

In the afternoon of November 25, 1995, petitioner was having a drinking session with his uncles
Lucrecio Seguritan (Lucrecio), Melchor Panis (Melchor) and Baltazar Panis (Baltazar), in the house
of Manuel dela Cruz in Barangay Paradise, Gonzaga, Cagayan. Petitioner, who was seated beside
Lucrecio, claimed that Lucrecio’s carabao entered his farm and destroyed his crops. A heated
discussion thereafter ensued, during which petitioner punched Lucrecio twice as the latter was about
to stand up. Petitioner’s punches landed on Lucrecio’s right and left temple, causing him to fall face-
up to the ground and hit a hollow block which was being used as an improvised stove.

Lucrecio lost consciousness but was revived with the assistance of Baltazar. Thereafter, Lucrecio
rode a tricycle and proceeded to his house in the neighboring barangay of Calayan, Cagayan. Upon
his arrival, his wife noticed blood on his forehead. Lucrecio explained that he was stoned, then went
directly to his room and slept.

At around 9 o’clock in the evening, Lucrecio’s wife and daughter noticed that his complexion has
darkened and foamy substance was coming out of his mouth. Attempts were made to revive
Lucrecio but to no avail. He died that same night.

After the burial of Lucrecio on December 4, 1995, his wife learned of petitioner’s involvement in her
husband’s death. Thus, she sought the assistance of the National Bureau of Investigation (NBI). NBI
Medico-Legal Officer Dr. Antonio Vertido (Dr. Vertido) exhumed Lucrecio’s body and performed the
autopsy. Dr. Vertido found hematomas in the scalp located in the right parietal and left occipital
areas, a linear fracture in the right middle fossa, and a subdural hemorrhage in the right and left
cerebral hemisphere. Dr. Vertido concluded that Lucrecio’s cause of death was traumatic head
injury.7
On May 21, 1996, Melchor executed a sworn statement before the Gonzaga Police Station
recounting the events on that fateful day, including the punching of Lucrecio by petitioner.

At the time of Lucrecio’s death, he was 51 years old and earned an annual income of ₱14,000.00 as
a farmer.

The Version of the Defense

Petitioner denied hitting Lucrecio and alleged that the latter died of cardiac arrest. Petitioner claimed
that he suddenly stood up during their heated argument with the intent to punch Lucrecio. However,
since the latter was seated at the opposite end of the bench, Lucrecio lost his balance and fell before
he could be hit. Lucrecio’s head hit the improvised stove as a result of which he lost consciousness.

Petitioner presented Joel Cabebe, the Assistant Registration Officer of Gonzaga, Cagayan, and Dr.
Corazon Flor, the Municipal Health Officer of Sta. Teresita, Cagayan, to prove that Lucrecio died of a
heart attack. These witnesses identified the Certificate of Death of Lucrecio and the entry therein
which reads: "Antecedent cause: T/C cardiovascular disease."8

Ruling of the Regional Trial Court

On February 5, 2001, the trial court rendered a Decision convicting petitioner of homicide. The
dispositive portion of the Decision reads:

WHEREFORE, the Court finds the accused GUILTY beyond reasonable doubt of the crime of
homicide and sentences the accused to an indeterminate sentence of 6 years and 1 day of prision
mayor as minimum to 17 years and 4 months of reclusion temporal as maximum. The accused is
ordered to pay the heirs of the late Lucrecio Seguritan the amount of ₱30,000.00 as actual damages
and the amount of ₱135,331.00 as loss of earning capacity and to pay the costs.

SO ORDERED.9

The Decision of the Court of Appeals

On appeal, the CA affirmed with modification the Judgment of the RTC.

Thus:

WHEREFORE, the judgment appealed from is partly AFFIRMED, WITH MODIFICATION, to read as
follows: The Court finds the accused GUILTY beyond reasonable doubt of the crime of homicide and
sentences the accused to an indeterminate penalty of SIX (6) YEARS AND ONE (1) DAY of prision
mayor, as minimum, to TWELVE (12) YEARS AND ONE (1) DAY of reclusion temporal, as
maximum. The accused Roño Seguritan is ordered to pay the heirs of the late Lucrecio Seguritan
the amount of ₱ 30,000.00 as actual damages, the amount of ₱135,331.00 as loss of earning
capacity, ₱ 50,000.00 as moral damages and to pay the costs.

SO ORDERED.10

Petitioner filed a Motion for Reconsideration but it was denied by the CA in its Resolution dated May
23, 2006.

Issues

Thus, this petition for review raising the following issues:

The Court of Appeals erred in affirming the trial court’s judgment of conviction.

II

The Court of Appeals erred in convicting the accused of the crime of homicide.11

Our Ruling

The petition is denied.

Petitioner disputes the conclusion that the fracture on the right middle fossa of the skull, beneath the
area where a hematoma developed was due to the blow he delivered because according to the
testimony of Dr. Vertido, the fracture may also be caused by one falling from a height. Petitioner also
maintains that the punches he threw at Lucrecio had nothing to do with the fatal head injuries the
latter suffered. According to him, Lucrecio sustained the head injuries when he accidentally hit the
hollow block that was used as an improvised stove, after falling from the opposite end of the bench.
Petitioner insists that Lucrecio died due to a fatal heart attack.

In fine, petitioner contends that the appellate court, in affirming the judgment of the trial court,
overlooked material and relevant factual matters which, if considered, would change the outcome of
the case.

We are not persuaded.

It is on record that Lucrecio suffered two external injuries and one internal injury in his head. The
autopsy report showed that Lucrecio died of internal hemorrhage caused by injuries located at the
upper right portion of the head, left side of the center of his head, and a "fracture, linear, right middle
fossa, hemorrhage, subdural, right and left cerebral hemisphere."

We find no reason to doubt the findings of the trial court, as affirmed by the appellate court, that
petitioner punched Lucrecio twice causing him to fall to the ground. Melchor categorically testified
that petitioner punched Lucrecio twice and as a result, Lucrecio fell to the ground and lost
consciousness. Melchor would not have testified falsely against petitioner, who was his nephew. He
even hesitated to testify as shown by his execution of a sworn statement just after the autopsy of
Lucrecio which revealed that the cause of death was traumatic head injury attributed to petitioner.

Melchor’s eyewitness account of the fist blows delivered by petitioner to Lucrecio and the manner by
which the latter fell from the bench and hit his head on the improvised stove is consistent with the
autopsy findings prepared and testified to by Dr. Vertido. Thus:

xxxx

Court:

Q: What is the right parietal area?

A: This is the right parietal area, sir.

(Witness pointing to the upper right portion of the head).

: And then the left occipital area, this is left occipital area with a hematoma again measuring
5.0 x 4.0 centimeters, sir.

(Witness pointing to the back left part, middle back portion)12

xxxx

Fiscal Feril:

Q: What about this which reads "Fracture, linear, right middle fossa", where is this injury
located?

xxxx

Court:

Q: Will you point that from your head?

A: x x x [A]t the base of the brain of the skull, sir.

If you look at the head at the cut portion, the fracture is located on the base of the brain,
particularly on the right mid-cranial fossa, sir.13

xxxx

Fiscal Feril:
 Q: Could it be possible that the victim suffered the injuries specifically the fracture while he
was falling to the ground, hitting solid objects in the process?

A: Well, with regard to the hematomas there is a possibility [that it could be caused by] falling
from a height x x x although it produces hematoma, sir.

Court:

Q: Falling from a height?

A: Yes, sir.

Fiscal Feril:

Q: If an external force is administered to such victim, such as x x x fist blow[s] would it

accelerate this force and cause these injuries?

A: Definitely it could accelerate, sir.14

We find no merit in petitioner’s argument that he could not be held liable for the head fracture
suffered by Lucrecio. The height from which he stood to deliver the fist blows to Lucrecio’s
head is sufficient to cause the fracture.

The testimony of Dr. Vertido also ruled out petitioner’s contention that Lucrecio died of a
heart attack. The fact that Lucrecio’s cause of death is internal hemorrhage resulting from
the head injuries suffered during his encounter with the petitioner and the certainty that he
had no heart problem are evident in the following portion of Dr. Vertido’s testimony:

Atty. Antonio:

Q: Did you notice anything unusual in the heart of Lucrecio Seguritan?

A: Well, with regard to our examination of the heart Your Honor I limit only the examination
on the atomic portion, gross findings, when we say gross findings that can be seen by the
eyes and so if for example other that the findings on the brain, if I have not seen my injury
from the brain then my next examination to contemplate would be to bring a portion of each
particular organ to Manila and have it subjected to a hispathologic examination over the
microscope. But then we found out that there is an injury to the brain so why should I now
perform a hispathologic examination on the heart, when in fact there is already a gross
finding on the brain, meaning that the cause of death now is of course, this traumatic injury,
sir.

Court:

Q: Supposed the victim had a heart attack first and then fell down later, can you determine
then x x x the cause of death?

A: Well, your Honor as I said a while ago I opened up the heart, I examined the heart grossly
and there was no findings that would find to a heart attach on its function, the heart was okay
and coronaries were not thickened so I said well – grossly there was no heart attack.15

xxxx

Court:

Q: Since you were conducting just a cursory examination of the heart, my question again is
that, could you have determined by further examination whether the victim suffered a heart
attack before the injuries on the head were inflicted?

A: That is why sir, I said, I examined the heart and I found out that there was noting wrong
with the heart, and why should I insist on further examining the heart.16

The notation in the Certificate of Death of Lucrecio that he died of a heart attack has no weight in
evidence. Dr. Corazon Flor, who signed said document testified that she did not examine the
cadaver of Lucrecio. She stated that a circular governing her profession did not require her to
conduct an examination of Lucrecio’s corpse, as long as the informant tells her that it is not a
medico-legal case. Renato Sidantes (Renato), the brother-in-law of Lucrecio who applied for the
latter’s death certificate, had no knowledge of the real cause of his death. Thus, Dr. Flor was
mistakenly informed by Renato that the cause of Lucrecio’s death was heart attack.

The petitioner belatedly contends that the delay in the autopsy of Lucrecio’s body and its embalming
compromised the results thereof. To substantiate his claim, he quotes the book entitled Legal
Medicine authored by Dr. Pedro Solis, viz:

"a dead body must not be embalmed before the autopsy. The embalming fluid may render the tissue
and blood unfit for toxilogical analyses. The embalming may alter the gross appearance of the
tissues or may result to a wide variety of artifacts that tend to destroy or obscure evidence."

"the body must be autopsied in the same condition when found at the crime scene. A delay in the
performance may fail or modify the possible findings thereby not serving the interest of justice."17

Petitioner’s reliance on this citation is misplaced. Petitioner failed to adduce evidence that the one
month delay in the autopsy indeed modified the possible findings. He also failed to substantiate his
claim that the embalming fluid rendered the tissue and blood of Lucrecio unfit for toxilogical analysis.

Further, it is settled that courts will only consider as evidence that which has been formally
offered.18 The allegation that the results of the autopsy are unworthy of credence was based on a
book that was neither marked for identification nor formally offered in evidence during the hearing of
the case. Thus, the trial court as well as the appellate court correctly disregarded them. The
prosecution was not even given the opportunity to object as the book or a portion thereof was never
offered in evidence.19

A formal offer is necessary since judges are required to base their findings of fact and judgment only
– and strictly – upon the evidence offered by the parties at the trial. To rule otherwise would deprive
the opposing party of his chance to examine the document and object to its admissibility. The
appellate court will have difficulty reviewing documents not previously scrutinized by the court
below.20 Any evidence which a party desires to submit to the courts must be offered formally
because a judge must base his findings strictly on the evidence offered by the parties at the trial.21

We are not impressed with petitioner’s argument that he should be held liable only for reckless
imprudence resulting in homicide due to the absence of intent to kill Lucrecio. When death resulted,
even if there was no intent to kill, the crime is homicide, not just physical injuries, since with respect
to crimes of personal violence, the penal law looks particularly to the material results following the
unlawful act and holds the aggressor responsible for all the consequences thereof.22 Accordingly,
Article 4 of the Revised Penal Code provides:

Art. 4. Criminal liability – Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.

xxxx

Petitioner committed an unlawful act by punching Lucrecio, his uncle who was much older than him,
and even if he did not intend to cause the death of Lucrecio, he must be held guilty beyond
reasonable doubt for killing him pursuant to the above-quoted provision. He who is the cause of the
cause is the cause of the evil caused.23

Considering the foregoing discussion, we find that both the trial court and the appellate court
correctly appreciated the evidence presented before them. Both courts did not overlook facts and
circumstances that would warrant a reevaluation of the evidence. Accordingly, there is no reason to
digress from the settled legal principle that the appellate court will generally not disturb the
assessment of the trial court on factual matters considering that the latter as a trier of facts, is in a
better position to appreciate the same.

Further, it is settled that findings of fact of the trial court are accorded greatest respect by the
appellate court absent any abuse of discretion.24 There being no abuse of discretion in this case, we
affirm the factual findings of the trial court.

Penalty and Damages

The penalty for Homicide under Article 249 of the Revised Penal Code is reclusion temporal the
range of which is from 12 years and one day to 20 years. Applying the Indeterminate Sentence Law,
the penalty next lower in degree is prision mayor the range of which is from six years and one day to
12 years. In this case, we find that the mitigating circumstance of no intention to commit so grave a
wrong as that committed, attended the commission of the crime. Thus, the appellate court correctly
imposed the indeterminate penalty of six years and one day of prision mayor, as minimum, to 12
years and one day of reclusion temporal, as maximum.

As regards the amount of damages, civil indemnity must also be awarded to the heirs of Lucrecio
without need of proof other than the fact that a crime was committed resulting in the death of the
victim and that petitioner was responsible therefor.25 Accordingly, we award the sum of ₱50,000.00 in
line with current jurisprudence.26

The award of ₱135,331.00 for the loss of earning capacity was also in order.27 The prosecution
satisfactorily proved that the victim was earning an annual income of ₱14,000.00 from the harvest of
pineapples. Besides, the defense no longer impugned this award of the trial court.

However, the other awards of damages must be modified. It is error for the trial court and the
appellate court to award actual damages of ₱30,000.00 for the expenses incurred for the death of
the victim. We perused the records and did not find evidence to support the plea for actual damages.
The expenses incurred in connection with the death, wake and burial of Lucrecio cannot be
sustained without any tangible document to support such claim. While expenses were incurred in
connection with the death of Lucrecio, actual damages cannot be awarded as they are not supported
by receipts.28
1avvphi1

In lieu of actual damages, the heirs of the victim can still be awarded temperate damages. When
pecuniary loss has been suffered but the amount cannot, from the nature of the case, be proven with
certainty, temperate damages may be recovered. Temperate damages may be allowed in cases
where from the nature of the case, definite proof of pecuniary loss cannot be adduced, although the
court is convinced that the aggrieved party suffered some pecuniary loss.29 In this regard, the
amount of ₱25,000.00 is in accordance with recent jurisprudence.30

Moral damages was correctly awarded to the heirs of the victim without need of proof other than the
fact that a crime was committed resulting in the death of the victim and that the accused was
responsible therefor.31 The award of ₱50,000.00 as moral damages conforms to existing
jurisprudence.32

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR No.
25069 finding petitioner Roño Seguritan y Jara guilty of homicide and sentencing him to suffer the
penalty of six years and one day of prision mayor as minimum, to 12 years and one day of reclusion
temporal as maximum, and to pay the heirs of Lucrecio Seguritan the amounts of ₱50,000.00 as
moral damages and ₱135,331.00 as loss of earning capacity is AFFIRMED with
MODIFICATION that petitioner is further ordered to pay ₱25,000.00 as temperate damages in lieu of
actual damages, and ₱50,000.00 as civil indemnity.

SO ORDERED.

G.R. No. 128148             February 16, 2004

PEOPLE OF THE PHILIPPINES, appellee

vs.
JOHNNY MALINAO Y NOBE, appellant.

DECISION

AUSTRIA-MARTINEZ, J.:

On automatic review is the Decision,1 dated October 31, 1996, of the Regional Trial Court of
Catbalogan, Samar (Branch 29) convicting appellant Johnny Malinao y Nobe of Illegal Possession of
Firearm in its aggravated form under the second paragraph of Section 1 of P.D. No. 1866 (Illegal
Possession of Firearm Law) and sentencing him to suffer the supreme penalty of death.

The facts are as follows:

In an Information dated January 16, 1995, docketed as Criminal Case No. 3998, appellant was
charged with Murder, committed as follows:

That on or about the 14th day of November, 1994, at nighttime which was purposely sought, in the
Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a handgun, with deliberate intent to kill,
with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and shoot one Nestor Otanguin with the use of said handgun with which the said
accused had conveniently provided himself for the purpose, thereby hitting and inflicting upon said
Nestor Otanguin gunshot wounds on his body and head, which wounds on his body and head, which
directly caused his instantaneous death.

CONTRARY TO LAW.2

Upon arraignment on March 3, 1995, appellant pleaded not guilty to the crime charged.3

In an Information dated March 30, 1995, docketed as Criminal Case No. 4039, appellant was
charged with Illegal Possession of Firearm and Ammunition (P.D. No. 1866), committed as follows:

That on or about the 14th day of November, 1994, in the Municipality of Catbalogan, Province of
Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
being then a private person and with deliberate intent to possess, did then and there willfully,
unlawfully and feloniously carry, control, possess and have in his possession a Caliber .38 firearm in
a public place and outside of his residence without first securing any authority, and/or permit as
required by law.

CONTRARY TO LAW.4

When arraigned on April 6, 1995, appellant also pleaded not guilty to the crime charged.5 The two
cases were consolidated and joint trial ensued.

Based on the evidence of the prosecution, consisting of the testimonies of minors Rey Abarcar, Allan
Federio, Jay-ar Federio, Danelle Ian Malindog; Haide Villamor, Teresita G. Otanguin, Ireneo
Ordiano, Jr., Nicandro Canaleja, Dr. Frederick Beda C. Alli, Miguel Gallego and SPO4 Rodrigo
Tolentino, the following facts are established:

Appellant and victim Nestor Otanguin were neighbors in Barangay 10, Muñoz Estate, Catbalogan,
Samar. In the afternoon of November 9, 1994, the car in which Nestor, his wife Teresita and his
brother-in-law were riding, driven by one Rodante Abarcar who was maneuvering it out of the garage
gate of the Otanguin residence, accidentally hit and injured the fighting cock of appellant that was
tied near said gate. Teresita immediately told appellant of the incident and promised to talk it over
with him later as they were in a hurry to catch up with a plane flight to Tacloban City. Appellant did
not say anything and just smiled. Nestor and family left for the airport.

At 4:30 in the afternoon of November 14, 1994, appellant, armed with a .38 caliber revolver, was
drinking with some friends at a table on a sidewalk near his house at the corner of McKinley Street, a
narrow alley. 9-year old Rey Abarcar,6 12-year old Allan Federio, 11-year old Jay-ar Federio and 6-
year old Danelle Ian Malindog were playing nearby. At 6:00 in the evening, Nestor was on his way
home from work and passed by the place where appellant was drinking with some friends. As Nestor
was approaching, appellant fired his gun and invited Nestor to join them and offered him a drink
which Nestor accepted. Then Nestor excused himself for home but appellant offered him another
drink, which he politely refused. Enraged at the refusal, appellant drew his revolver from his waist
and shot Nestor on the chest. When Nestor fell, appellant shot him again at the back of the head,
resulting in his immediate death.7

On November 15, 1994, Dr. Frederick Beda C. Alli, Municipal Health Officer, conducted the autopsy
on Nestor. From the autopsy report,8 it appears that Nestor died of cardio-respiratory arrest due to
gunshot wounds on the head and chest. On the same day, Forensic Analyst Nicandro Canaleja,
conducted a paraffin test on the hands of appellant. The test gave a positive result for the presence
of gunpowder residue.9 Meanwhile, Ireneo Ordiano, Jr., a ballistics expert of the National Bureau of
Investigation (NBI), conducted a ballistics examination on the two bullets recovered from the body of
Nestor. The ballistics report10 revealed that the bullets were fired from the barrel of a caliber .38
firearm. A certification from the Philippine National Police (PNP) proved that appellant is "neither a
firearm holder nor a licensee of any firearm of whatever caliber."11

Appellant admits having killed Nestor but claims self-defense. He testified that on the day of the
incident, Nestor, armed with a .38 caliber handgun, drew his weapon to fire at appellant but
appellant grappled with Nestor for possession of the gun and in the struggle, the gun exploded. He
further stated that after he succeeded in wrestling the gun from Nestor, Nestor fought back and held
his legs so he fired at Nestor. Thereafter, he left and went to the house of his brother in law. Later,
he met Fiscal Wayne Villarin and they went to the Catbalogan Police Station where he surrendered
to the police.12

The trial court sustained the evidence presented by the prosecution and found appellant’s claim of
self-defense to be not credible. The trial court likewise found that the prosecution had established
that appellant was not a licensee of any firearm. Thus, the trial court held that the crime of murder
with the use of an illegally possessed gun was committed by the appellant.
In convicting appellant, the trial court, applying People vs. Barros,13 held:

In a recent case, People vs. Romeo Barros, GR No. 101107, June 27, 1995, our Supreme Court
reversing the trial court which convicted the accused of two offenses of murder and illegal
possession of firearm and ammunition under PD 1866 the Supreme Court held that an accused who
is charged with having committed murder or homicide with the use of an unlicensed firearm should
be liable only for the graver offense of aggravated illegal possession of firearm under the second
paragraph of Section 1 of PD 1866 because the situation contemplated therein is from the punitive
standpoint, virtually of the nature of the so-called "special complex crimes," which should more
appropriately be called composite crimes and only a single penalty is imposed for each of such
composite crimes although composed of two or more offenses. 14

Thus, the dispositive portion of the joint decision reads as follows:

WHEREFORE, the information for murder against Johnny Malinao in Criminal Case No. 3998 is
hereby dismissed and in Criminal Case No. 4039 judgment is hereby rendered finding him guilty
beyond reasonable doubt of illegal possession of firearm in its aggravated form under the second
paragraph of Sec. 1 of PD 1866 and for this offense he is hereby sentenced to the penalty of death,
to indemnify the heirs of the deceased Nestor Otanguin, represented by his wife Teresita G.
Otanguin of Catbalogan, Samar, in the amount of Two Hundred Thousand Pesos (P200,000.00),
without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.15

Hence, the case is before the Court on automatic review under Article 47 of the Revised Penal
Code, as amended by Section 22 of Republic Act No. 7659.

In his Brief, appellant impugns solely his conviction for illegal possession of firearm. He submits that
the trial court’s dismissal of the Information for murder operates as an acquittal thereof; hence, he
posits that only the conviction for illegal possession of firearms is the subject of herein automatic
review. He seeks the retroactive effect of the beneficial provisions of Republic Act No. 8294 which
amended P.D. No. 1866 (Illegal Possession of Firearm Law), reducing the penalties provided
therein.

Prefatorily, it must be stressed that although the appellant himself does not refute the factual findings
of the trial court, the Court nonetheless must conduct a thorough examination of the entire records of
the case, based on the settled principle that an appeal in a criminal case opens the entire case for
review on any question including one not raised by the parties.16 This rule applies especially to
automatic review of death penalty cases before the Supreme Court such as the present. Having
received the supreme penalty as imposed by the applicable law, appellant is entitled under that law
to have the sentence and all the facts and circumstances upon which it is founded placed before the
Highest Tribunal of the land to the end that its justice and legality may be clearly and conclusively
determined.17

Consequently, before the Court resolves appellant’s submissions, it is imperative that the Court
reviews the factual findings and conclusions of the trial court.

Appellant admits authorship of the killing and invokes self-defense thereby shifting upon him the
burden to prove by clear and convincing evidence, that: (a) the victim unlawfully attacked him; (b) he
took the necessary means to repel the attack; and (c) he did not provoke said attack.18 Unfortunately,
appellant failed to discharge that burden of evidence since his self-defense theory remains
uncorroborated. An uncorroborated self-defense theory is similar in many respects to bare denial. As
such, it must fail as against the positive, categorical and straightforward witness accounts of
eyewitnesses Rey Abarcar, Allan Federio, Jay-ar Federio and Danelle Ian Malindog. These
prosecution eyewitnesses, minors all, clearly identified the appellant as the aggressor and not the
victim Nestor. Without unlawful aggression on the part of the victim, there can be no viable self-
defense.19

It is alleged in the Information for Murder that the killing was qualified by treachery and evident
premeditation. The trial court did not make a finding as to the existence of any of these qualifying
circumstances.

It is settled that treachery cannot be presumed but must be proved by clear and convincing evidence
as conclusively as the killing itself. To appreciate treachery, two (2) conditions must be present,
namely, (a) the employment of means of execution that give the person attacked no opportunity to
defend himself or retaliate, and (b) the means of execution were deliberately or consciously
adopted.20 In this case, the concurrence of these conditions is firmly anchored on the declarations of
the prosecution eyewitnesses Rey Abarcar, Allan Federio, Jay-ar Federio and Danelle Ian Malindog.
They witnessed appellant fire his gun and shoot at Nestor on the chest for the latter’s refusal to drink
another glass of liquor and when Nestor fell, they saw appellant shoot him again at the back of the
head. These all too clearly indicate that Nestor could not have foreseen the deadly assault.

Nestor was completely unaware of his impending death caused simply by his polite refusal to drink.
The means, method, and form of the attack in this case were, therefore, consciously adopted and
effectively forestalled Nestor from employing a defense against appellant’s unexpected attack.

On the other hand, the circumstance of evident premeditation did not attend the killing. There was no
proof or showing of (a) the time when the offender determined to commit the crime, (b) an act
manifestly indicating that the offender had clung to his determination, and (c) a sufficient lapse of
time between the determination to commit and the execution thereof, to allow the offender to reflect
on the consequences of his act.21 Evident premeditation must be based on external facts which are
evident, not merely suspected, which indicate deliberate planning.22 There must be direct evidence
showing a plan or preparation to kill, or proof that the accused meditated and reflected upon his
decision to kill the victim.23 No such evidence was presented to prove the presence of this
circumstance.

With the presence of qualifying circumstance of treachery, which was established as clear as the
killing itself, the crime committed is murder.

Regarding the charge of illegal possession of firearm, conviction requires the concurrence of two (2)
essential requisites: (a) the existence of the firearm, and (b) the fact that the appellant who owned or
possessed the firearm does not have a license to possess the same. Both elements were
established by the prosecution. In People vs. Orehuela,24 the Court held that the existence of the
firearm can be established by testimony, even without the presentation of the said firearm.25 In this
case, while the firearm was not presented in evidence, the existence of the same was sufficiently
established by (a) the categorical testimonies of the prosecution eyewitnesses that appellant was in
possession of a firearm handgun described as "caliber 32",26 a "shortgun",27 and a "small gun"28 and
had used it to kill Nestor, (b) the paraffin test on the hands of appellant tested positive for the
presence of gunpowder residue,29 and (c) the ballistics report revealed that the two bullets taken
from the body of Nestor were fired from the barrel of a caliber .38 firearm.30 The prosecution proved
the second element by presenting a certification from the PNP to the effect that appellant is "neither
a firearm holder nor a licensee of any firearm of whatever caliber."31

The guilt of appellant as to the crimes of murder and illegal possession of firearm having been
established beyond reasonable doubt, the Court now turns to the claim of appellant that only his
conviction for illegal possession of firearm should be the subject of herein automatic review because
the trial court had dismissed the Information for murder.

Appellant’s claim is not plausible. The trial court clearly found appellant guilty beyond reasonable
doubt of the crime of murder, but merely considered it as aggravating circumstance in the crime of
illegal possession of firearm, applying People vs. Barros32 Inevitably, the contrariety arose when the
trial court erroneously ordered the dismissal of the Information for Murder despite having earlier
found in the text of his decision that the appellant is guilty of murder beyond reasonable doubt and
having considered the crime of Murder as an aggravating circumstance in finding him guilty of "illegal
possession of firearm in its aggravated form under Sec. 1 of P.D. No. 1866".

It is elementary that the dispositive part of the judgment should not be interpreted in a manner
contrary to its ratio decidendi.33 The dispositive part should be construed in harmony with the spirit of
the decision as revealed in the text of the decision.

The crimes of murder and illegal possession of firearm were committed by appellant in 1994. Two
separate Informations were filed but the cases were tried jointly as they sprung from the same
incident involving the same victim and accused. The prevailing laws at that time are Article 249 of
the Revised Penal Code and P.D. No. 1866.

At this point, it is imperative for the Court, so as to serve as a guide for the Bench and the Bar, to
reproduce the separate opinion of illustrious Mr. Justice Florenz D. Regalado in the Barros case
which was mentioned in the ponencia of then Chief Justice Andres R. Narvasa as having been
subscribed to by all the then Members of the Court and now being made an integral part of herein
decision, viz:

The main concern was as to whether or not, whenever a killing is effected with the use of an
unlicensed firearm, the malefactor should be punished separately for both offenses, with the
unlawful taking of life to be proceeded against under the corresponding provision of the Revised
Penal Code and the illegal possession of the firearm under Presidential Decree No. 1866. The case
now before the Court presents an opportunity for a reevaluation of the previous rulings on this issue.
A little legal archaeology would be in order. Presidential Decree No. 1866 took effect on June 29,
1983, imposing the stringent penalties therein by reason of the "upsurge of crimes vitally affecting
public order and safety due to the proliferation of illegally possessed and manufactured firearms,
ammunition and explosives." The pertinent portion of Section 1 thereof provides for simple
possession in the first paragraph and for one of the aggravated forms in the second paragraph, as
follows:

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire, dispose (of) or possess any
firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall
be imposed.

At that time, the penalty for homicide was, as it still is, reclusion temporal in its full extent under
Article 249 of the Code. The penalty for murder then was reclusion temporal in its maximum period
to death under Article 248, although the death penalty was proscribed for some time by the 1987
Constitution. Thereafter, effective December 31, 1993, the penalty for murder was increased
to reclusion perpetua to death when Article 248 of the Code was amended by Section 6 of Republic
Act No. 7659.

Obviously, then, the single indivisible penalty of death provided by Presidential Decree No. 1866
was designed to impose, as it still imposes, a higher penalty whenever an unlicensed firearm was
used as the instrument for the commission of either homicide or murder, and such penalty shall be
applied regardless of any mitigating or aggravating circumstances.

Under the dispositions heretofore made by the Court involving the crimes of homicide or murder
through the use of an illegally possessed firearm, and the same is true with the case at bar, the
following queries may be posed:

1. Should the crimes of homicide or murder, which are the end results, be punished
separately from and in addition to the liability for illegal possession of the firearm as the
instrument or the means employed?

2. On the other hand, should not the principal and sole offense be the aggravated form of
illegal possession of a firearm under the second paragraph of Section 1 of Presidential
Decree No. 1866, with the homicide or murder being absorbed therein as an integral element
of the crime in its aggravated form?

3. If either homicide or murder and illegal possession of firearm are so charged in one and
the same information, should they be considered and punished as a single offense of
homicide or murder with the use of an unlicensed firearm, or as a case of aggravated illegal
possession of firearm resulting in homicide or murder, with the death penalty to be imposed
in either case?

4. If homicide or murder is charged in a separate information while aggravated illegal

possession of firearm is made the subject of a separate indictment filed simultaneously with
or prior or subsequent to the former, but with the respective informations on the killing and
the illegal possession mutually alleging facts regarding the other offense as an attendant
circumstance, should the accused be held liable for two distinct crimes regardless of whether
the cases are jointly tried by the same court or separately by the two courts where the
informations were independently filed?

On the first question, it is true that from the theoretical concept of the requisite mens rea, the killing
as the result of the criminal design arose from a specific criminal intent, that is, the animus
interficendi or intent to kill. The illegal possession of the firearm requires a discrete and specific
intent to possess the weapon, which is the animus possidendi, coupled with the physical possession
thereof.

It would, therefore, appear at first blush that the two offenses having arisen from different criminal
intents, this would be, under the philosophical bases for concurso de delitos, a case of material or
real plurality under which different crimes have been committed and for each of which a separate
criminal liability attaches. The flaw in this approach, however, is that although two crimes have been
committed, they are not altogether separate or disconnected from each other both in law and in fact.
The illegally-possessed firearm having been the weapon used in the killing, the former was at least
the necessary, although not an indispensable, means to commit the other.
The situation thus borders closer to the concept of a complex crime proper, technically known as
a delito complejo, rather than to the postulate of two separate crimes. It is true that former doctrines
were to the effect that there can be no complex crime where one of the component offenses is
punished by a special law. The rationale therefore was that in a complex crime, Article 48 of the
Code prescribes that the penalty shall be for the gravest offense to be applied in its maximum
period. Since, at that time, the penalties for crimes provided in special laws were not divided into
periods, it would be impossible to apply Article 48.

The ratiocination no longer applies now, specifically with respect to the case at bar, since the
penalties in Presidential Decree No. 1866 were all taken from the scale of penalties in the Code. The
only possible difficulty in this novatory approach would be on the first kind of complex crime, that is,
the delito compuesto since it exists "(w)hen a single act constitutes two or more grave or less grave
felonies." The use of that particular term for the delicts committed bars the application of that form of
complex crime to offenses under Presidential Decree No. 1866, since "felonies" are offenses
provided and defined in the Code.

That objection would not, however, apply to a delito complejo since it is sufficient therefor that "an
offense is a necessary means for committing the other." By these considerations, however, the
writer does not mean to imply that a killing through the use of an illegally-possessed firearm is
a delito complejo under Article 48 of the Code. As was carefully stated, such an offense merely
borders closer to or approximates the concept of a delito complejo, but it thereby emphasizes the
thesis that the offenses should not be considered as separate crimes to be individually punished
under the principle of material plurality.

This premise accordingly brings up the second query as to whether or not the crime should properly
be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide
or murder is committed. It is submitted that an accused so situated should be liable only for the
graver offense of aggravated illegal possession of the firearm punished by death under the second
paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents
from the holding which would impose a separate penalty for the homicide in addition to that for the
illegal possession of the firearm used to commit the former.

If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court
has correctly held that to be the simple possession punished with reclusion temporal in its maximum
period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily, the
unlicensed firearm is used to commit homicide or murder, then either of these felonies will
convert the erstwhile simple illegal possession into the graver offense of aggravated illegal
possession. In other words, the homicide or murder constitutes the essential element for
integrating into existence the capital offense of the aggravated form of illegal possession of a
firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of
homicide or murder as integral elements of and to create the said capital offense, and then treat the
former all over again as independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.

The situation contemplated in the second query is, from the punitive standpoint, virtually of the
nature of the so-called "special complex crimes," which should more appropriately be called
composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same
legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a
single act giving rise to two or more grave or less grave felonies nor do they involve an offense being
a necessary means to commit another. However, just like the regular complex crimes and the
present case of aggravated illegal possession of firearms, only a single penalty is imposed for each
of such composite crimes although composed of two or more offenses.

On the other hand, even if two felonies would otherwise have been covered by the conceptual
definition of a complex crime under Article 48, but the Code imposes a single definite penalty
therefor, it cannot also be punished as a complex crime, much less as separate offenses, but with
only the single penalty prescribed by law. Thus, even where a single act results in two less grave
felonies of serious physical injuries and serious slander by deed, the offense will not be punished as
a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the
second paragraph of Article 265. The serious slander by deed is integrated into and produces a
graver offense, and the former is no longer separately punished.

What is, therefore, sought to be stressed by such alternative illustration, as sell as the discussion on
complex and composite crimes, is that when an offense becomes a component of another, the
resultant crime being correspondingly punished as thus aggravated by the integration of the other,
the former is not to be further separately punished as the majority would want to do with the
homicide involved in the case at bar.

With the foregoing answers to the second question, the third inquiry is more of a question of
classification for purposes of the other provisions of the Code. The theory in Tac-an that the principal
offense is the aggravated form of illegal possession of firearm and the killing shall merely be
included in the particulars or, better still, as an element of the principal offense, may be conceded.
After all, the plurality of crimes here is actually sourced from the very provisions of Presidential
Decree No. 1866 which sought to "consolidate, codify and integrate" the "various laws and
presidential decrees to harmonize their provisions" which "must be updated and revised in order to
more effectively deter violators" of said laws.

This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act
of 1972, wherein the principal crime to be charged is still carnapping, although the penalty therefore
is increased when the owner, driver or occupant of the carnapped vehicle is killed. The same
situation, with escalating punitive provisions when attended by a killing, are found in the Anti-Piracy
and Anti-Highway Robbery Law of 1974 and the Anti-Cattle Rustling Law of 1974, wherein the
principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive
arson, the principal offense remains as arson although the same becomes a capital offense
when, inter alia, death results as a consequence of the commission of any of the acts punished
under said article of the Code.

In the present case, the academic value of specifying whether it is a case of illegal possession of
firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal
possession and use of an unlicensed firearm, would lie in the possible application of the provision on
recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for
aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the
provision on recidivism would not apply. If, however, the illegal possession is not established but
either homicide or murder is proved, then the matter of recidivism may have some significance in the
sense that, for purposes thereof, the accused was convicted of a crime against persons and he
becomes a recidivist upon conviction of another crime under the same title of the Code.

Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed
when the unlawful killing and the illegal possession are charged in separate informations, from what
has been said the appropriate course of action would be to consolidate the cases and render a joint
decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such
possession and the unlawful taking of life shall have been proved, or for only the proven offense
which may be either simple illegal possession, homicide or murder per se. The same procedural rule
and substantive disposition should be adopted if one information for each offense was drawn up and
these informations were individually assigned to different courts or branches of the same court.

Indeed, the practice of charging the offense of illegal possession separately from the homicide or
murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers
and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be
known to the police or prosecutorial agencies, the only probable problem being the determination
and obtention of evidence to show that the firearm is unlicensed.

Now, if a separate information for homicide or murder is filed without alleging therein that the same
was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree
No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license
therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if
proved in that case, would not affect the accused either since it is not an aggravating or qualifying
circumstance.

Conversely, if the information is only for illegal possession, with the prosecution intending to file
thereafter the charge for homicide or murder but the same is inexplicably delayed or is not
consolidated with the information for illegal possession, then any conviction that may result from the
former would only be for simple illegal possession. If, on the other hand, the separate and
subsequent prosecution for homicide or murder prospers, the objective of Presidential
Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution
will only be for the unlawful killing and further subject to such modifying circumstances as
may be proved.

In any event, the foregoing contingencies would run counter to the proposition that the real offense
committed by the accused, and for which sole offense he should be punished, is the aggravated
form of illegal possession of a firearm. Further, it is the writer’s position that the possible problems
projected herein may be minimized or obviated if both offenses involved are charged in only one
information or that the trial thereof, if separately charged, be invariably consolidated for joint
decision. Conjointly, this is the course necessarily indicated since only a single composite crime is
actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts in
piecemeal fashion.34 (Emphasis supplied)

However, pending review of the trial court’s decision, R.A. No. 8294 was enacted on July 6, 1997,
amending P.D. No. 1866. Its effect on crimes of illegal possession of firearm and murder or
homicide, committed before the enactment of said law and on P.D. No. 1866 is explicitly defined
in People vs. Tadeo,35 to wit:

Finally, we must reverse and set aside the conviction of the accused in Crim. Case No. 23-499
where he was charged with illegal possession of a firearm used in perpetrating the homicide and
attempted homicide, i.e., violation of par. 2, Sec. 1, P.D. 1866, as a result of the decriminalization of
violations of P.D. 1866 by R.A. 8294 where the unlicensed firearm is used in carrying out the
commission of other crimes –

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. – The penalty of prision correccional in its maximum period and a fine of not less than
Fifteen Thousand Pesos (₱15,000.00) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition. Provided, that no other crime was committed . . . If homicide or murder is committed
with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.

The foregoing amendments obviously blur the distinctions between murder and homicide on one
hand, and qualified illegal possession of firearms used in murder or homicide on the other. We have
declared that the formulation in R.A. 8294, i.e., "(I)f homicide or murder is committed with the
use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance," signifies a legislative intent to treat as a single offense the illegal
possession of firearms and the commission of murder or homicide with the use of an
unlicensed firearm. Thus where an accused used an unlicensed firearm in committing homicide or
murder, he may no longer be charged with what used to be the two (2) separate offenses of
homicide or murder under The Revised Penal Code and qualified illegal possession of firearms used
in homicide or murder under P.D. 1866; in other words, where murder or homicide was
committed, the penalty for illegal possession of firearms is no longer imposable since it
becomes merely a special aggravating circumstance.

The use of an unlicensed firearm cannot be considered however as a special aggravating

circumstance in Crim. Case No. 23-498 and Crim. Case No. 23-494. For one, it was not alleged as
an aggravating circumstance in the Informations for murder and frustrated murder which is
necessary under our present Revised Rules of Criminal Procedure. Moreover, even if alleged, the
circumstance cannot be retroactively applied to prejudice accused-appellant; it must be stressed that
RA 8294 took effect only on 6 July 199436 while the crimes involved herein were committed on 4
November 1993. In any event, as correctly observed by the Solicitor General, there is no evidence
proving the illicit character of the .38 cal. Revolver used by appellant in killing Mayolito Cabatu and in
trying to kill Florencia Cabatu, as to which requisite of the crime the record is eerily
silent.37 (Emphasis supplied)

Applied to the present case, appellant may not now be convicted of illegal possession of firearm in
its aggravated form by considering the commission of Murder or Homicide as an aggravating
circumstance because under R.A. No. 8294, the use of an unlicensed firearm in a murder or
homicide case is considered simply as a special aggravating circumstance in the crime of homicide
or murder and no longer treated as a separate offense in its aggravated form. It should be noted
however that in either case, whether for illegal use of firearm in its aggravated form under P.D. No.
1866 as discussed in the Barros case or whether Murder or Homicide is committed with the use of
an unlicensed firearm, the imposable penalty is death.

The use of the unlicensed firearm by appellant in killing Nestor may not be used against appellant as
a special aggravating circumstance because there is no allegation in Criminal Case No. 3998 that
the crime of Murder was committed with the use of an unlicensed firearm, as mandated by Section 8
of Rule 110 of the Revised Rules of Criminal Procedure;38 in much the same way as in Criminal
Case No. 4039, it is not alleged in the Information that the use of illegal firearm caused murder or
homicide.

In fine, appellant may be held liable only for murder which is punishable by reclusion perpetua to
death under Article 248 of the Revised Penal Code as amended by R.A. No. 7659.

Nighttime, while alleged in the information, cannot be appreciated as an aggravating circumstance

because there is no evidence that appellant purposely sought nighttime to facilitate the killing or to
insure its execution or accomplishment or to evade his arrest.39

But the mitigating circumstance of voluntary surrender should be appreciated in favor of the
appellant. First, he had not been actually arrested at the time he surrendered; second, he
surrendered to a person in authority; and third, his surrender was voluntary.40 The records reveal that
appellant surrendered to a person in authority in the evening of November 14, 1995 after the
killing41 of Nestor in the afternoon of the same day.

Under Article 24842 of the Revised Penal Code, as amended, the penalty for murder is reclusion
perpetua to death. Article 6343 of the same Code states that when the law prescribes a penalty
consisting of two indivisible penalties and the crime is attended by a mitigating circumstance and no
aggravating circumstance, the lesser penalty shall be imposed. Thus, for the murder of Nestor, we
reduce the penalty of the appellant from death to reclusion perpetua.

Regarding the amount of damages, we note that the trial court awarded civil indemnity in the amount
of ₱200,000.00. Under prevailing jurisprudence, the Court has set the amount at ₱50,000.00.44 In
murder, the grant of civil indemnity requires no proof other than the fact of death as a result of the
crime and proof of the appellant’s responsibility therefor.45

However, the award of civil indemnity is separate and distinct from the award of moral damages
which is based on a different jural foundation and assessed by the court in the exercise of sound
discretion. The prosecution has amply demonstrated by competent evidence that the heirs suffered
mental anguish and wounded feelings.46 Thus, the heirs of Nestor are entitled to moral damages
pegged at ₱50,000.00 by controlling case law.47

Actual damages must likewise be awarded. While the widow, Teresita G. Otanguin, submitted a
summary of expenses in the total amount of ₱228,557.00,48 incurred due to the death of her
husband, only receipts for funeral services (₱18,000.00),49 tomb lot (₱25,000.00),50 and tomb
construction (₱11,707.00)51 were offered in evidence. Actual damages may only be awarded for
expenses duly supported by receipts.52 Courts cannot simply rely on speculation, conjecture or
guesswork in determining the fact and amount of damages.53 Hence, only ₱54,707.00 must be
awarded as actual damages.

Moreover, the heirs of Nestor are also entitled to damages for the loss of the latter’s earning
capacity. In fixing the indemnity, account is taken of the victim’s actual income at the time of his
death and his probable life expectancy.54 Thus, in People vs. Napalit55 the following formula was
adopted by this Court:

2/3 x (80-age of the a reasonable portion of the annual net income

New earning
= victim at the time of which would have been received by the heirs
capacity
this death for support.

In the absence of proof of living expenses, the net income is deemed to be 50% of the gross
income.56

Nestor was 38 years old at the time of his death.57 Per Certification58 of the Philippine National Bank
where Nestor worked as an Investment Specialist, his annual income is ₱55,380.00. Thus, by
reason of the death of the victim, the heirs should be awarded the amount of ₱775,320.00 for loss of
earning capacity, computed as follows:

net earning capacity = 2/3 x (80-38) x [₱55,380.00-1/2 (₱27,690.00)]

= 2/3 x (42) x ₱ 27, 690.00
= 28 x ₱ 27, 690.00
= ₱775,320.00

Finally, the Court awards exemplary damages in the amount of ₱25,000.00, inasmuch as the
qualifying circumstance of treachery attended in the killing of Nestor. In People vs. Catubig,59 we
emphasized that insofar as the civil aspect of the crime is concerned, exemplary damages in the
amount of ₱25,000.00 is recoverable if there is present an aggravating circumstance, whether
qualifying or ordinary, in the commission of the crime.60

WHEREFORE, the Decision dated October 31, 1996 of the Regional Trial Court of Catbalogan,
Samar (Branch 29) is MODIFIED. The appellant, Johnny Malinao y Nobe, is found GUILTY beyond
reasonable doubt of murder and sentenced to suffer the penalty of reclusion perpetua. The appellant
is also ordered to pay the heirs of the victim, Nestor Otanguin, the amounts of Fifty Thousand Pesos
(₱50,000.00) as civil indemnity; Fifty Thousand Pesos (₱50,000.00) as moral damages; Fifty Four
Thousand Seven Hundred Seven Pesos (₱54,707.00) as actual damages; Seven Hundred Seventy
Five Thousand Three Hundred Twenty Pesos (₱775,320.00) as loss of earning capacity; and
Twenty Five Thousand Pesos (₱25,000.00) as exemplary damages.
SO ORDERED.

G.R. No. 189806               January 12, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FRANCISCO MANLANGIT y TRESBALLES, Accused-Appellant.

DECISION

VELASCO, JR., J.:

The Case

This is an appeal from the August 28, 2009 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-
H.C. No. 03273, which affirmed in toto the Decision dated July 12, 20072 in Criminal Case Nos. 03-
4735 and 03-4961 of the Regional Trial Court (RTC), Branch 64 in Makati City. The RTC found
accused-appellant Francisco Manlangit y Tresballes guilty of drug-sale and drug-use penalized by
Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

On November 25, 2003, an information was filed charging Manlangit with violating Section 5, Article
II of RA 9165, as follows:

That on or about the 24th day of November 2003, in the City of Makati, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized by law,
did then and there willfully and feloniously sell, give away, distribute and deliver zero point zero four
(0.04) gram of Methylamphetamine Hydrochloride (shabu), which is a dangerous drug.3

On December 11, 2003, another information was filed against Manlangit for breach of Sec. 15, Art. II
of RA 9165, to wit:

That sometime on or before or about the 24th day of November 2003, in the City of Makati,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being
authorized by law to use dangerous drugs, and having been arrested and found positive for use of
Methylamphetamine, after a confirmatory test, did then and there willfully, unlawfully and feloniously
use Methylamphetamine, a dangerous drug in violation of the said law.4

During the arraignment for both cases, Manlangit pleaded not guilty. Afterwards, the cases were
tried jointly.

At the trial of the case, the prosecution adduced evidence as follows:

On November 24, 2003, the Makati Anti-Drug Abuse Council (MADAC) Cluster 4 office received
information from an informant that a certain "Negro" was selling prohibited drugs along Col. Santos
Street at Brgy. South Cembo, Makati City. The MADAC thereafter coordinated with the Anti-Illegal
Drugs Special Operations Task Force (AIDSTOF) and the Philippine Drug Enforcement Agency to
conduct a joint MADAC-police buy-bust operation. A team was assembled composed of several
members of the different offices, among which Police Officer 2 Virginio Costa was designated as the
team leader, with MADAC operative Wilfredo Serrano as the poseur-buyer and Roberto Bayona as
his back-up. The team prepared buy-bust money for the operation, marking two (2) one hundred
peso (PhP 100) bills with the initials "AAM."

Upon arrival on Col. Santos Street, Brgy. Cembo, Makati City, the team spotted Manlangit standing
in front of his house. The informant approached Manlangit and convinced the latter that Serrano
wanted to purchase shabu from him. Manlangit asked Serrano how much shabu he wanted, to which
Serrano replied that he wanted two hundred pesos (PhP 200) worth of shabu. Manlangit went inside
his house and later reappeared with a plastic sachet containing a white crystalline substance.
Manlangit handed over the plastic sachet to Serrano who, in turn, gave Manlangit the marked
money. Then Serrano gave the pre-arranged signal of lighting a cigarette to indicate to the rest of
the team that the buy-bust operation had been consummated. Thus, the rest of the team
approached Manlangit and proceeded to arrest him while informing him of constitutional rights and
the reason for his arrest. The marked money was recovered from Manlangit’s pocket. The plastic
sachet was then marked with the initials "FTM" and sent to the Philippine National Police (PNP)
crime laboratory in Camp Crame, Quezon City for analysis. The PNP crime laboratory identified the
white crystalline substance as Methylamphetamine Hydrochloride in Chemistry Report No. D-1190-
03. Manlangit was also brought to the PNP crime laboratory for a drug test, which yielded a positive
result for use of Methylamphetamine Hydrochloride.5
Manlangit denied that such buy-bust operation was conducted and claimed that the recovered shabu
was not from him. He claimed that he was pointed out by a certain Eli Ballesteros to Serrano and
Bayona. Thereafter, he was allegedly detained at the Barangay Hall of Brgy. Pitogo. There, he was
allegedly interrogated by Serrano as to the location of the shabu and its proceeds, as well as the
identity of the drug pushers in the area. He also claimed that whenever he answered that he did not
know what Serrano was talking about, he was boxed in the chest. Later on, he said that he was
brought to Camp Crame for drug testing.6

On July 12, 2007, the RTC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1) In Criminal Case No. 03-4735, finding accused Francisco Manlangit y Tresballes GUILTY
BEYOND REASONABLE DOUBT of Violation of Section 5, Art II, RA 9165 (drug-sale) and
sentencing him to suffer the penalty of life imprisonment and to pay a fine in the amount of
P500,000.00. Said accused shall be given credit for the period of his preventive detention.

2) In Criminal Case No. 03-4735,7 finding accused Francisco Manlangit y Tresballes GUILTY

BEYOND REASONABLE DOUBT of Violation of Section 15, Art II, RA 9165 (drug-use), and
sentencing him to undergo rehabilitation for at least six (6) months in a government rehabilitation
Center under the auspices of the Bureau of Correction subject to the provisions of Article VIII, RA
9165.

It is further ordered that the plastic sachet containing shabu, subject of Criminal Case No. 03-4735,
be transmitted to the Philippine Drug Enforcement Agency (PDEA) for the latter’s appropriate action.

SO ORDERED.8

From such Decision, Manlangit interposed an appeal with the CA.

In his Brief, accused-appellant Manlangit claimed that the prosecution failed to prove his guilt
beyond reasonable doubt. To support such contention, accused-appellant claimed that there was no
buy-bust operation conducted. He pointed out that he was not in the list of suspected drug pushers
of MADAC or of the AIDSTOF. He further emphasized that the buy-bust operation was conducted
without first conducting a surveillance or test buy to determine the veracity of the report made by the
informant. He assailed the fact that despite knowledge of his identity and location, the buy-bust team
failed to secure even a search warrant.

Accused-appellant also raised the issue that the buy-bust team failed to comply with the procedure
for the custody and control of seized prohibited drugs under Sec. 21 of RA 9165. He argued that the
presumption of regularity in the performance of official function was overturned by the officers’ failure
to follow the required procedure in the conduct of a buy-bust operation, as well as the procedure in
the proper disposition, custody, and control of the subject specimen.

On August 28, 2009, the CA rendered the decision which affirmed the RTC’s Decision dated July 12,
2007. It ruled that contrary to accused-appellant’s contention, prior surveillance is not a prerequisite
for the validity of a buy-bust operation. The case was a valid example of a warrantless arrest,
accused-appellant having been caught in flagrante delicto. The CA further stated that accused-
appellant’s unsubstantiated allegations are insufficient to show that the witnesses for the prosecution
were actuated by improper motive, in this case the members of the buy-bust team; thus, their
testimonies are entitled to full faith and credit. After examining the testimonies of the witnesses, the
CA found them credible and found no reason to disturb the RTC’s findings. Finally, the CA found that
chain of evidence was not broken.

Hence, the instant appeal.

In a Manifestation (In lieu of Supplemental Brief) dated February 22, 2010, accused-appellant
expressed his desire not to file a supplemental brief and reiterated the same arguments already
presented before the trial and appellate courts.

The Issues

The issues, as raised in the Brief for the Accused-Appellant dated September 29, 2008, are:

1. The Court a quo gravely erred in convicting the accused-appellant despite the
prosecution’s failure to prove his built beyond reasonable doubt.9
 2. The Court a quo gravely erred in finding that the procedure for the custody and control of
prohibited drugs was complied with.10

The Ruling of the Court

The appeal is bereft of merit.

First Issue:

Accused-appellant’s guilt was proved beyond reasonable doubt

The first paragraph of Sec. 5 of RA 9165 punishes the act of selling dangerous drugs. It provides:

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.¾The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten
million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law,
shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of opium poppy regardless of the
quantity and purity involved, or shall act as a broker in any of such transactions. (Emphasis
supplied.)

While Sec. 15, RA 9165 states:

Section 15. Use of Dangerous Drugs.¾A person apprehended or arrested, who is found to be
positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a
minimum of six (6) months rehabilitation in a government center for the first offense, subject to the
provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time,
he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve
(12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand
pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is
also found to have in his/her possession such quantity of any dangerous drug provided for under
Section 11 of this Act, in which case the provisions stated therein shall apply. (Emphasis supplied.)

People v. Macatingag11 prescribed the requirements for the successful prosecution of the crime of
illegal sale of dangerous drugs, as follows.

The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer
and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment
therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the
transaction or sale actually took place, coupled with the presentation in court of evidence of corpus
delicti.

The pieces of evidence found in the records amply demonstrate that all the elements of the crimes
charged were satisfied. The lower courts gave credence to the prosecution witnesses’ testimonies,
which established the guilt of accused-appellant for the crimes charged beyond reasonable doubt.
The testimonies––particularly those of the police officers involved, which both the RTC and the CA
found credible––are now beyond question. As the Court ruled in Aparis v. People:12

As to the question of credibility of the police officers who served as principal witnesses for the
prosecution, settled is the rule that prosecutions involving illegal drugs depend largely on the
credibility of the police officers who conducted the buy-bust operation. It is a fundamental rule that
findings of the trial courts which are factual in nature and which involve credibility are accorded
respect when no glaring errors; gross misapprehension of facts; or speculative, arbitrary, and
unsupported conclusions can be gathered from such findings. The reason for this is that the trial
court is in a better position to decide the credibility of witnesses, having heard their testimonies and
observed their deportment and manner of testifying during the trial. The rule finds an even more
stringent application where said findings are sustained by the Court of Appeals, as in the present
case.

Moreover, accused-appellant’s defense of denial, without substantial evidence to support it, cannot
overcome the presumption of regularity of the police officers’ performance of official functions. Thus,
the Court ruled in People v. Llamado:13

In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of
the incident by the prosecution witnesses especially when they are police officers who are presumed
to have performed their duties in a regular manner, unless there be evidence to the contrary.
Moreover, in the absence of proof of motive to falsely impute such a serious crime against the
appellant, the presumption of regularity in the performance of official duty, as well as the findings of
the trial court on the credibility of witnesses, shall prevail over appellant’s self-serving and
uncorroborated denial. (Emphasis supplied.)

Contrary to accused-appellant’s challenge to the validity of the buy-bust operation, the Court
categorically stated in Quinicot v. People that a prior surveillance or test buy is not required for a
valid buy-bust operation, as long as the operatives are accompanied by their informant, thus:

Settled is the rule that the absence of a prior surveillance or test buy does not affect the legality of
the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court
has left to the discretion of police authorities the selection of effective means to apprehend drug
dealers. A prior surveillance, much less a lengthy one, is not necessary, especially where the police
operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good
police work. We have held that when time is of the essence, the police may dispense with the need
for prior surveillance. In the instant case, having been accompanied by the informant to the person
who was peddling the dangerous drugs, the policemen need not have conducted any prior
surveillance before they undertook the buy-bust operation.14 (Emphasis supplied.)

Furthermore, accused-appellant’s contention that the buy-bust team should have procured a search
warrant for the validity of the buy-bust operation is misplaced. The Court had the occasion to
address this issue in People v. Doria:15

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless
arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure, to wit:

"Sec. 5. Arrest without warrant; when lawful.¾A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another."

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has
committed, is actually committing, or is attempting to commit an offense." Appellant Doria was
caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as
a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even
without a warrant.

The Court reiterated such ruling in People v. Agulay:16

Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered
from him inadmissible in evidence. Accused-appellant’s claim is devoid of merit for it is a well-
established rule that an arrest made after an entrapment operation does not require a warrant
inasmuch as it is considered a valid "warrantless arrest," in line with the provisions of Rule 113,
Section 5(a) of the Revised Rules of Court, to wit:

Section 5. Arrest without warrant; when lawful.¾A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid
and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a
crime originates from the offender, without anybody inducing or prodding him to commit the offense.
If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves
judicial sanction.

Second Issue:

The chain of custody of the seized drug was unbroken

Accused-appellant contends that the arresting officers did not comply with the requirements for the
handling of seized dangerous drugs as provided for under Sec. 21(1) of RA 9165:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment.¾The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof; (Emphasis supplied.)

In particular, accused-appellant argues that:

While the marking of the specimen was done in the place of incident by MADAC operative Soriano,
the inventory of the item was done at Cluster 4. There was no photograph made of the plastic sachet
in the presence of the accused, media, any elected local official, or the DOJ representatives, in clear
violation of Section 21, R.A. No. 9165.17

Based on such alleged failure of the buy-bust team to comply with the procedural requirements of
Sec. 21, RA 9165, accused-appellant posits that he should, therefore, be acquitted. Such reasoning
is flawed.

In People v. Rosialda,18 the Court addressed the issue of chain of custody of dangerous drugs, citing
People v. Rivera, as follows:

Anent the second element, Rosialda raises the issue that there is a violation of Sec. 21, Art. II of RA
9165, particularly the requirement that the alleged dangerous drugs seized by the apprehending
officers be photographed "in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel." Rosialda argues that such
failure to comply with the provision of the law is fatal to his conviction.

This contention is untenable.

The Court made the following enlightening disquisition on this matter in People v. Rivera:

The procedure to be followed in the custody and handling of seized dangerous drugs is outlined in
Section 21, paragraph 1, Article II of Republic Act No. 9165 which stipulates:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof.

The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of
Republic Act No. 9165, viz.:

(a) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof: Provided, further, that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved
by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items.

The failure of the prosecution to show that the police officers conducted the required physical
inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and
does not automatically render accused-appellant’s arrest illegal or the items seized/confiscated from
him inadmissible. Indeed, the implementing rules offer some flexibility when a proviso added that
‘non-compliance with these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody over said items.’ The same provision
clearly states as well, that it must still be shown that there exists justifiable grounds and proof that
the integrity and evidentiary value of the evidence have been preserved.

This Court can no longer find out what justifiable reasons existed, if any, since the defense did not
raise this issue during trial. Be that as it may, this Court has explained in People v. Del Monte that
what is of utmost importance is the preservation of the integrity and evidentiary value of the seized
items, as the same would be utilized in the determination of the guilt or innocence of the accused.
The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of
dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the
fact of its existence is vital to a judgment of conviction. Thus, it is essential that the identity of the
prohibited drug be established beyond doubt. The chain of custody requirement performs the
function of ensuring that the integrity and evidentiary value of the seized items are preserved, so
much so that unnecessary doubts as to the identity of the evidence are removed.

To be admissible, the prosecution must show by records or testimony, the continuous whereabouts
of the exhibit at least between the time it came into possession of the police officers and until it was
tested in the laboratory to determine its composition up to the time it was offered in evidence.
(Emphasis supplied.)

Here, accused-appellant does not question the unbroken chain of evidence. His only contention is
that the buy-bust team did not inventory and photograph the specimen on site and in the presence of
accused-appellant or his counsel, a representative from the media and the Department of Justice,
and any elected public official. However, as ruled by the Court in Rosialda, as long as the chain of
custody remains unbroken, even though the procedural requirements provided for in Sec. 21 of RA
9165 was not faithfully observed, the guilt of the accused will not be affected.

And as aptly ruled by the CA, the chain of custody in the instant case was not broken as established
by the facts proved during trial, thus:

Lastly, the contention of appellant, that the police officers failed to comply with the provisions of
paragraph 1, Section 21 of R.A. No. 9165 for the proper procedure in the custody and disposition of
the seized drugs, is untenable. Record shows that Serrano marked the confiscated sachet of shabu
in the presence of appellant at the place of incident and was turned over properly to the investigating
officer together with the marked buy-bust money. Afterwards, the confiscated plastic sachet
suspected to be containing "shabu" was brought to the forensic chemist for examination. Likewise,
the members of the buy-bust team executed their "Pinagsanib na Salaysay sa Pag-aresto"
immediately after the arrest and at the trial, Serrano positively identified the seized drugs. Indeed,
the prosecution evidence had established the unbroken chain of custody of the seized drugs from
the buy-bust team, to the investigating officer and to the forensic chemist. Thus, there is no doubt
that the prohibited drug presented before the court a quo was the one seized from appellant and that
indeed, he committed the crimes imputed against him.

WHEREFORE, the appeal is DENIED. The CA’s August 28, 2009 Decision in CA-G.R. CR-H.C. No.
03273 is hereby AFFIRMED IN TOTO.

No costs.

SO ORDERED.

G.R. No. 179243               September 7, 2011

JOSEPH ANTHONY M. ALEJANDRO, FIRDAUSI I.Y. ABBAS, CARMINA A. ABBAS and MA.
ELENA GO FRANCISCO, Petitioners,
vs.
ATTY. JOSE A. BERNAS, ATTY. MARIE LOURDES SIA-BERNAS, FERNANDO AMOR,
EDUARDO AGUILAR, JOHN DOE and PETER DOE, Respondents.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and
set aside the Court of Appeals (CA) Decision1 dated May 23, 2007 and Resolution2 dated August 8,
2007 in CA-G.R. SP No. 94229.

The facts of the case follow.

Petitioner Joseph Anthony M. Alejandro (Alejandro) is the lessee-purchaser of condominium unit No.
2402 (the Unit), 4th Floor, Discovery Center Condominium in Pasig City under the Contract of Lease
with Option to Purchase3 with the lessor-seller Oakridge Properties, Inc. (OPI). On October 15, 2000,
Alejandro sub-leased the Unit to the other petitioners Firdausi I.Y. Abbas (Firdausi), Carmina M.
Alejandro-Abbas (Carmina) and Ma. Elena Go Francisco (Ma. Elena) to be used as a law
office.4 However, a defect in the air-conditioning unit prompted petitioners to suspend payments until
the problem is fixed by the management.5 Instead of addressing the defect, OPI instituted an action
for ejectment before the Metropolitan Trial Court (MeTC) of Pasig City,6 against Alejandro for the
latter’s failure to pay rentals. The case was docketed as Civil Case No. 9209. Alejandro, for his part,
interposed the defense of justified suspension of payments.7

In the meantime, the Discovery Center Condominium Corporation (DCCC) was organized to
administer the Discovery Center Condominium independent of OPI. Respondent Fernando Amor
(Amor) was appointed as the Property Manager of DCCC.

During the pendency of the ejectment case or on June 10, 2004, OPI, allegedly through respondent
Atty. Marie Lourdes Sia-Bernas (Sia-Bernas), ordered that the Unit be padlocked. In an Order8 dated
June 11, 2004 the MeTC directed OPI to remove the padlock of the Unit and discontinue the
inventory of the properties. The order was reiterated when the MeTC issued a Temporary
Restraining Order in favor of Alejandro. However, on August 11, 2004, at 8:00 in the evening, OPI,
allegedly through respondent Atty. Jose Bernas, again padlocked the Unit. The padlocking was
allegedly executed by Amor, as Property Manager and respondent Eduardo Aguilar (Aguilar) as
head of the security unit, together with security officers John Doe and Peter Doe. Respondents,
likewise, cut off the electricity, water and telephone facilities on August 16, 2004.9

On August 17, 2004, the MeTC rendered a Decision10 in the ejectment case in favor of Alejandro and
against OPI. The court found Alejandro’s suspension of payment justified. The decision was,
however, reversed and set aside by the Regional Trial Court11 whose decision was in turn
affirmed12 by the CA.

On October 27, 2004, petitioners filed a criminal complaint13 for grave coercion against respondents
Bernas, Sia-Bernas, Amor, Aguilar, Peter Doe and John Doe with the Office of the City Prosecutor
(OCP) of Pasig. The case was docketed as I.S. No. PSG 04-10-13650. In their Joint Affidavit-
Complaint,14 petitioners claimed that the padlocking of the Unit was illegal, felonious and unlawful
which prevented them from entering the premises.15 Petitioners also alleged that said padlocking and
the cutting off of facilities had unduly prejudiced them and thus constituted grave coercion.16

In their Counter-Affidavit17 , Bernas and Sia-Bernas averred that the elements of grave coercion were
not alleged and proven by petitioners. They also claimed that nowhere in petitioners’ complaint was
it alleged that respondents employed violence which is an essential element of grave coercion.

In addition to the above defenses, Amor and Aguilar maintained that petitioners did not allege that
the former actually prevented the latter to enter the Unit. They added that petitioners in fact gained
access to the Unit by forcibly destroying the padlock.18

On March 22, 2005, the OCP issued a Resolution,19 the pertinent portion of which reads:

Wherefore, respondents Fernando Amor and Eduardo Aguilar are charged with unjust vexation and
the attached information be filed with the Metropolitan Trial Court of Pasig City. Bail is not necessary
unless required by the Court.

The charges against respondents Jose Bernas and Marie Lourdes Sia-Bernas is dismissed for
insufficiency of evidence.20

The OCP held that respondents could not be charged with grave coercion as no violence was
employed by the latter. In padlocking the leased premises and cutting off of facilities, respondents
Amor and Aguilar were found to be probably guilty of the crime of unjust vexation.21

Aggrieved, petitioners appealed to the Secretary of the Department of Justice (DOJ) but the appeal
was dismissed22 for their failure to comply with Section 12, paragraph (b) of Department Circular No.
70. The DOJ Secretary, acting through Undersecretary Ernesto L. Pineda, explained that petitioners
failed to submit a legible true copy of the joint counter-affidavit of some of the respondents.
Petitioners’ motion for reconsideration23 was likewise denied in a Resolution24 dated April 3, 2006. He
denied the motion after a careful re-evaluation of the record of the case vis-à-vis the issues and
arguments raised by petitioners.

Undaunted, petitioners elevated the matter to the CA that rendered the assailed decision25 on May
23, 2007. The appellate court recognized the DOJ’s authority to dismiss the petition on technicality
pursuant to its rules of procedure. The CA explained that while the DOJ dismissed the petition on
mere technicality, it re-evaluated the merits of the case when petitioners filed their motion for
reconsideration. On whether or not there was probable cause for the crime of grave coercion, the CA
answered in the negative. It held that the mere presence of the security guards was insufficient to
cause intimidation.26 The CA likewise denied petitioners’ motion for reconsideration on August 8,
2007.27

Hence, this petition based on the following grounds:

WHETHER OR NOT THE RULING IN THE CASE OF SY VS. DEPARTMENT OF JUSTICE (G.R.
NO. 166315, DECEMBER 14, 2006), WHEREIN THE HIGHEST COURT OF THE LAND DEVIATED
FROM THE NON-INTERFERENCE POLICY WITH THE PROSECUTORIAL ARM OF THE
GOVERNMENT BY HOLDING THAT THERE IS GRAVE ABUSE OF DISCRETION IF THE
RECORDS CLEARLY SHOW PRIMA FACIE EVIDENCE OF THE CRIME CHARGED, IS
APPLICABLE TO INSTANT CASE,

1. given that there is more than ample evidence of the padlocking;

2. the padlocking has been admitted in no uncertain terms by Respondents;

3. the padlock was ordered removed by the court

WHETHER OR NOT THERE WAS GRAVE ABUSE OF DISCRETION, TANTAMOUNT [TO] LACK
OF OR EXCESS OF JURISDICTION WHEN THE COURT OF APPEALS DENIED THE PETITION
DESPITE SHOWING OF PRIMA FACIE CASE OF GRAVE COERCION.

WHETHER OR NOT SUBJECT RESOLUTION OF THE DOJ IS ANOMALOUS BECAUSE THE

GROUND OF DISMISSAL WAS FABRICATED WHICH NECESSITATES A JUDICIAL REVIEW OF
SAID RESOLUTION.

WHETHER OR NOT GRAVE COERCION CAN BE COMMITTED THROUGH INTIMIDATION

ALONE WITHOUT VIOLENCE.28

Petitioners claim that there is sufficient evidence on record to prove the fact of padlocking and
cutting off of facilities thereat.29 They insist that the allegations and evidence presented in the Joint
Affidavit-Complaint are sufficient to sustain a finding of probable cause for grave coercion
irrespective of any defense that may be put up by respondents.30 Finally, petitioners maintain that
although violence was not present during the commission of the acts complained of, there was
sufficient intimidation by the mere presence of the security guards.31

In their Comment,32 respondents aver that petitioners raise issues of grave abuse of discretion which
are improper in a petition for review on certiorari under Rule 45. They also argue that the CA aptly
held that petitioners failed to establish probable cause to hold them liable for grave coercion. They
do not agree with petitioners that the mere presence of security guards constituted intimidation
amounting to grave coercion. Finally, they insist that there is no legal impediment to cause the
padlocking and repossession of the Unit as a valid exercise of proprietary right under the contract of
lease.

In their Reply,33 petitioners assail the propriety of the dismissal of their appeal before the DOJ
Secretary on technicality.

The petition must fail.

The propriety of the dismissal of petitioners’ appeal before the DOJ Secretary has been thoroughly
explained by the CA. We quote with approval the CA ratiocination in this wise:

It was also incorrect for petitioners to claim that the dismissal was on mere technicality, and that the
Department of Justice no longer studied the appeal on the merits. The motion for reconsideration
shows that the records were carefully re-evaluated. However, the same conclusion was reached,
which was the dismissal of the appeal. The first resolution was a dismissal on technicality but the
motion for reconsideration delved on the merits of the case, albeit no lengthy explanation of the
DOJ’s dismissal of the appeal was inked on the resolution. It was already a demonstration of the
DOJ’s finding that no probable cause exists x x x34

Besides, petitioners’ failure to attach the required documents in accordance with the DOJ rules
renders the appeal insufficient in form and can thus be dismissed outright.35 Moreover, when the
case was elevated to the CA, the latter ruled not only on the procedural aspect of the case but also
on the merit of the determination of probable cause.
The next question then is whether the CA correctly sustained the DOJ’s conclusion that there was
no probable cause to indict respondents of grave coercion. We answer in the affirmative.

It is settled that the determination of whether probable cause exists to warrant the prosecution in
court of an accused should be consigned and entrusted to the DOJ, as reviewer of the findings of
public prosecutors.36 To accord respect to the discretion granted to the prosecutor and for reasons of
practicality, this Court, as a rule, does not interfere with the prosecutor’s determination of probable
cause for otherwise, courts would be swamped with petitions to review the prosecutor’s findings in
such investigations.37 The court’s duty in an appropriate case is confined to the determination of
whether the assailed executive or judicial determination of probable cause was done without or in
excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction.38

Probable cause for purposes of filing a criminal information is defined as such facts as are sufficient
to engender a well-founded belief that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial.39 As held in Sy v. Secretary of Justice,40 citing Villanueva v.
Secretary of Justice:41

[Probable cause] is such a state of facts in the mind of the prosecutor as would lead a person of
ordinary caution and prudence to believe or entertain an honest or strong suspicion that a thing is
so. The term does not mean "actual or positive cause"; nor does it import absolute certainty. It is
merely based in opinion and reasonable belief. Thus, a finding of probable cause does not require
an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the offense charged. Precisely, there is a
trial for the reception of evidence of the prosecution in support of the charge.42

For grave coercion to lie, the following elements must be present:

1. that a person is prevented by another from doing something not prohibited by law, or compelled to
do something against his will, be it right or wrong;

2. that the prevention or compulsion is effected by violence, threats or intimidation; and

3. that the person who restrains the will and liberty of another has no right to do so, or in other
words, that the restraint is not made under authority of law or in the exercise of any lawful right.43

Admittedly, respondents padlocked the Unit and cut off the electricity, water and telephone facilities.
Petitioners were thus prevented from occupying the Unit and using it for the purpose for which it was
intended, that is, to be used as a law office. At the time of the padlocking and cutting off of facilities,
there was already a case for the determination of the rights and obligations of both Alejandro, as
lessee and OPI as lessor, pending before the MeTC. There was in fact an order for the respondents
to remove the padlock. Thus, in performing the acts complained of, Amor and Aguilar had no right to
do so.

The problem, however, lies on the second element. A perusal of petitioners’ Joint Affidavit-Complaint
shows that petitioners merely alleged the fact of padlocking and cutting off of facilities to prevent the
petitioners from entering the Unit. For petitioners, the commission of these acts is sufficient to indict
respondents of grave coercion. It was never alleged that the acts were effected by violence, threat or
intimidation. Petitioners belatedly alleged that they were intimidated by the presence of security
guards during the questioned incident.

We find that the mere presence of the security guards is insufficient to cause intimidation to the
petitioners.

There is intimidation when one of the parties is compelled by a reasonable and well-grounded fear of
an imminent and grave evil upon his person or property, or upon the person or property of his
spouse, descendants or ascendants, to give his consent. 44 Material violence is not indispensable for
there to be intimidation. Intense fear produced in the mind of the victim which restricts or hinders the
exercise of the will is sufficient.45

In this case, petitioners claim that respondents padlocked the Unit and cut off the facilities in the
presence of security guards. As aptly held by the CA, it was not alleged that the security guards
committed anything to intimidate petitioners, nor was it alleged that the guards were not customarily
stationed there and that they produced fear on the part of petitioners. To determine the degree of the
intimidation, the age, sex and condition of the person shall be borne in mind.46 Here, the petitioners
who were allegedly intimidated by the guards are all lawyers who presumably know their rights. The
presence of the guards in fact was not found by petitioners to be significant because they failed to
mention it in their Joint Affidavit-Complaint. What they insist is that, the mere padlocking of the Unit
prevented them from using it for the purpose for which it was intended. This, according to the
petitioners, is grave coercion on the part of respondents.
The case of Sy v. Secretary of Justice,47 cited by petitioners is not applicable in the present case. In
Sy, the respondents therein, together with several men armed with hammers, ropes, axes, crowbars
and other tools arrived at the complainants’ residence and ordered them to vacate the building
because they were going to demolish it. Intimidated by respondents and their demolition team,
complainants were prevented from peacefully occupying their residence and were compelled to
leave against their will. Thus, respondents succeeded in implementing the demolition while
complainants watched helplessly as their building was torn down. The Court thus found that there
was prima facie showing that complainants were intimidated and that there was probable cause for
the crime of grave coercion.

On the contrary, the case of Barbasa v. Tuquero48 applies.  In Barbasa, the lessor, together with the
1âwphi1

head of security and several armed guards, disconnected the electricity in the stalls occupied by the
complainants-lessees because of the latter’s failure to pay the back rentals. The Court held that
there was no violence, force or the display of it as would produce intimidation upon the lessees’
employees when the cutting off of electricity was effected. On the contrary, the Court found that it
was done peacefully and that the guards were there not to intimidate them but to prevent any
untoward or violent event from occurring in the exercise of the lessor’s right under the contract. We
reach the same conclusion in this case.

In the crime of grave coercion, violence through material force or such a display of it as would
produce intimidation and, consequently, control over the will of the offended party is an essential
ingredient.49

Probable cause demands more than suspicion; it requires less than evidence that would justify
conviction.50 While probable cause should be determined in a summary manner, there is a need to
examine the evidence with care to prevent material damage to a potential accused’s constitutional
right to liberty and the guarantees of freedom and fair play, and to protect the State from the burden
of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false,
fraudulent or groundless charges.51 It is, therefore, imperative upon the prosecutor to relieve the
accused from the pain of going through a trial once it is ascertained that no probable cause exists to
form a sufficient belief as to the guilt of the accused.52

A preliminary investigation is conducted for the purpose of securing the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public accusation of a
crime, from the trouble, expense and anxiety of a public trial.53

Notwithstanding the DOJ’s conclusion that respondents cannot be charged with grave coercion, it
ordered the filing of information for unjust vexation against Amor, the Property Manager of DCCC
and Aguilar as head of the security division. We find the same to be in order.

Petitioners’ Joint Affidavit-Complaint adequately alleged the elements of unjust vexation. The second
paragraph of Article 287 of the Revised Penal Code which defines and provides for the penalty of
unjust vexation is broad enough to include any human conduct which, although not productive of
some physical or material harm, could unjustifiably annoy or vex an innocent person.54 Nevertheless,
Amor and Aguilar may disprove petitioners’ charges but such matters may only be determined in a
full-blown trial on the merits where the presence or absence of the elements of the crime may be
thoroughly passed upon.55

WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals
Decision dated May 23, 2007 and Resolution dated August 8, 2007 in CA-G.R. SP No. 94229, are
AFFIRMED.

SO ORDERED.

G.R. No. 169440               November 23, 2011

GEMMA ONG A.K.A. Maria Teresa Gemma Catacutan, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

Before Us is a petition for review on certiorari, filed under Rule 45 of the Rules of Court, to set aside
and reverse the June 16, 2005 Decision1 of the Court of Appeals in CA-G.R. CR No. 28308, which
affirmed the September 23, 2003 Decision2 of the Regional Trial Court (RTC) of Manila, Branch 24 in
Criminal Case No. 00-184454.
On July 28, 2000, petitioner Gemma Ong a.k.a. Maria Teresa Gemma Catacutan (Gemma) was
charged before the RTC for Infringement under Section 155 in relation to Section 170 of Republic
Act No. 8293 or the Intellectual Property Code. The accusatory portion of the Information reads:

That sometime in September 25, 1998 and prior thereto at Sta. Cruz, Manila and within the
jurisdiction of this Honorable Court, the above-named accused did then and there, knowingly,
maliciously, unlawfully and feloniously engage in the distribution, sale, [and] offering for sale of
counterfeit Marlboro cigarettes which had caused confusion, deceiving the public that such
cigarettes [were] Marlboro cigarettes and those of the Telengtan Brothers and Sons, Inc., doing
business under the style of La Suerte Cigar and Cigarettes Factory, the exclusive manufacturer of
Marlboro Cigarette in the Philippines and that of Philip Morris Products, Inc. (PMP7) the registered
owner and proprietor of the MARLBORO trademark together with the devices, including the famous-
Root Device, to their damage and prejudice, without the accused seeking their permit or authority to
manufacture and distribute the same.3

On August 1, 2000, Judge Rebecca G. Salvador of RTC Manila, Branch 1, issued a warrant of arrest
against Gemma, but lifted4 and set aside5 the same after Gemma voluntarily surrendered on August
4, 2000, and filed a cash bond for ₱ 12,000.00.

Gemma pleaded not guilty to the charge upon arraignment on October 17, 2000.6 After the pre-trial
conference on February 13, 2001,7 trial on the merits ensued.

The prosecution called to the witness stand the following: Roger Sherman Slagle, the Director of
Operations of Philip Morris Malaysia, and Philip Morris Philippines, Inc.’s (PMPI) product/brand
security expert, to testify that according to his examination, the products they seized at the subject
premises were counterfeit cigarettes;8 as well as Jesse Lara, who, as then Senior Investigator III at
the Intellectual Property Rights (IPR) Unit of the Economic Intelligence and Investigation Bureau
(EIIB), Department of Finance, led the investigating team, to testify on the events that led to the
arrest of Gemma.9 The prosecution also presented the billing accountant of Quasha Ancheta Peña &
Nolasco Law Office (Quasha Law Office), Juliet Flores, to show that PMPI, being one of Quasha
Law Office’s clients, paid the amount of $4,069.12 for legal services rendered.10 The last witness for
the prosecution was Atty. Alonzo Q. Ancheta, a senior law partner at Quasha Law Office, who
testified that as the duly appointed Attorney-in-Fact of PMPI, he was in charge of the EIIB search
operation in the subject premises. Atty. Ancheta said that while he was not personally present during
the implementation of the search warrant, he sent Atty. Leonardo Salvador, who constantly reported
the developments to him.11

The facts, as succinctly summarized by the Court of Appeals, are as follows:

On September 10, 1998, Jesse S. Lara, then Senior Investigator III at the Intellectual Property
Rights (IPR) Unit of the Economic Intelligence and Investigation Bureau (EIIB), Department of
Finance, received reliable information that counterfeit "Marlboro" cigarettes were being distributed
and sold by two (2) Chinese nationals, Johnny Sia and Jessie Concepcion, in the areas of Tondo,
Binondo, Sta. Cruz and Quiapo, Manila. A mission team formed by EIIB, including Lara, conducted
surveillance operation to verify the report. EIIB agents Leonardo Villanueva and Jigo Madrigal did a
"test-buy" on the different sari-sari stores of Manila located in Quiapo, Tondo, Sta. Cruz and
Blumentritt areas and took samples of "Marlboro" cigarettes sold therein. During the surveillance, the
container van delivering the "Marlboro" packed in black plastic bags was seen parked at 1677
Bulacan corner Hizon Streets, Sta. Cruz, Manila [(the subject premises)]. Upon inquiry from the
Barangay Chairman, they also learned that the place is owned by a certain Mr. Jackson Ong.

The EIIB team coordinated with officers of Philip Morris, Inc., owner of the trademark Marlboro Label
in the Philippines duly registered with the Philippine Patents Office and subsequently with the
Intellectual Property Office (IPO) since 1956. Initial examination made by Philip Morris, Inc. on those
random sample purchases revealed that the cigarettes were indeed fake products unauthorized by
the company. With official indorsement by the EIIB, Senior Investigator Lara filed an application for
search warrant before the Regional Trial Court of Dasmariñas, Cavite, Branch 90.

On September 24, 1998, Executive Judge Dolores L. Español issued a search warrant after finding
probable cause to believe that Mr. Jackson Ong has in his possession/control in the premises
located at 1675-1677 Bulacan St. cor. M. Hizon St., Sta. Cruz, Manila, the following properties:

"Substantial number of fake locally made and imported fake cigarettes bearing the Marlboro brand,
together with the corresponding labels, cartons, boxes and other packaging as well as receipts,
invoices and other documents relative to the purchase, sale, and distribution of the aforesaid fake
Marlboro cigarettes."

On September 25, 1998, the EIIB team led by Senior Investigator Lara implemented the search
warrant, together with SPO2 Rommel P. Sese of the Western Police District (WPD) as
representative of the Philippine National Police (PNP), Barangay Chairman Ernesto Traje, Sr.,
Barangay Kagawad Vivian V. Rallonza and Atty. Leonardo P. Salvador who was sent by [Quasha
Peña & Nolasco Law Office,] the law firm engaged by Philip Morris, Inc. They proceeded to the
subject premises but Jackson Ong, the alleged owner, was not there. It was accused, who is
supposedly either the spouse or common-law wife of Jackson Ong, who entertained them. At first,
accused refused to allow them entry into the premises but eventually the team was able to search
the premises and found Marlboro cigarettes stocked in several boxes containing fifty (50) reams
inside each box which were packed in black plastic sacks like in "balikbayan boxes." The "Inventory"
and "Certification In the Conduct of Search" were duly accomplished and signed by the members of
the EIIB and the other representatives present during the actual search (SPO2 Sese, Jess Lara,
Traje, Sr., Henry Mariano, Isidro Burgos and Atty. Salvador). Accused signed her name in the said
documents as "Gemma Ong," as the Owner/Representative, while a certain employee, Girlie
Cantillo, also signed as witness.

On September 28, 1998, a Return of Search Warrant was submitted by the EIIB to the issuing court
stating that the articles seized pursuant to the warrant were stored in the premises of the EIIB and
requesting that EIIB be granted temporary custody of the goods. Acting on the Urgent Motion To
Transfer Custody of Confiscated Articles filed by Philip Morris Products, Inc. (PMPI) of Virginia,
U.S.A., Executive Judge Dolores L. Español ordered the custody of the seized goods transferred
from EIIB to PMPI c/o Quasha Ancheta Peña and Nolasco Law Office, the Attorney-in-Fact of PMPI.
Judge Español subsequently also issued an order dated October 15, 1998 authorizing PMPI to
secure and take out samples of the unauthorized products from the confiscated cartons/boxes of
Marlboro cigarettes which are stored at Four Winds Phils. Inc. warehouse located at No. 2241
Pasong Tamo Extension, Makati City under the direct and personal control and supervision of Sheriff
IV Tomas C. Azurin. PMPI had earlier sought such order from the court for the purpose of laboratory
analysis and scientific testing of the samples from the confiscated cigarettes.

On the basis of the results of the examination conducted by PMPI on the samples obtained from the
confiscated boxes of cigarettes bearing the Marlboro brand, which confirmed the same to be
unauthorized products and not genuine Marlboro cigarettes, the EIIB filed a case for Violation of
Sections 155 and 168 in relation to Section 170 of Republic Act No. 8293 against Jackson Ong who
is not an authorized distributor of Marlboro products in the Philippines.12

After the prosecution rested its case, the defense filed a Demurrer to Evidence,13 which the RTC
denied on March 26, 2003.14 The defense moved for a reconsideration of this order but the same
was denied on April 22, 2003.15

Gemma, as the lone witness for the defense, then took the witness stand. She said that she is
married to Co Yok Piao, a Chinese national, but she still uses her maiden name Catacutan.16 She
denied that she is the Gemma Ong accused in this case. She testified that she was arrested on
August 4, 2000, without the arresting officers asking for her name. She said that when she pleaded
to be released, she was instructed to post a cash bond, which she did in the amount of ₱ 12,000.00.
Gemma averred that when she posted her bond and signed her certificate of arraignment, she did so
under her real name Maria Teresa Gemma Catacutan, as opposed to the signatures in the Inventory
and Certification in the Conduct of Search (search documents), which she denied signing. She
claimed that she was not able to bring up her defense of mistaken identity early on as she did not
know when the proper time to raise it was. She avowed that she was not interrogated by the police
prior to her arrest, despite the two-year gap between it and the search of the subject premises. She
alleged that she did not know Jackson Ong and that the prosecution witnesses, whom she first saw
during her trial, couldn’t even point to her as the person present during the raid when they testified in
court. Gemma further asseverated that while she could not remember where she was on September
25, 1998, she was sure that she was not at the subject premises on that date. Gemma presented
her Identification Card issued by the Professional Regulation Commission (PRC) to show that she is
a dentist by profession, although she claimed that she is a businessperson in practice. She said that
she used to buy and sell gear fabrics, t-shirts, truck materials, and real estate17 under the business
name "Fascinate Trading" based in Bulacan Street, Sta. Cruz, Manila, but that it had ceased
operations in February 1998.18 Gemma denied ever having engaged in the manufacture and sale of
any kind of cigarettes and claimed that she could not even distinguish between a fake and a genuine
Marlboro cigarette.19

On September 30, 2003, the RTC convicted Gemma of the crime as charged. The dispositive
portion of its Decision reads:

Accordingly, this Court finds accused Gemma Catacutan guilty beyond reasonable doubt of violation
of Section 155 in relation to Section 170 of Republic Act No. 8293 and hereby sentences her to
suffer the penalty of imprisonment of two (2) years and to pay a fine of Fifty Thousand (₱ 50,000.00)
Pesos.

Accused is further directed to indemnify private complainant the sum of US$4,069.12 or its peso
equivalent, as actual damages.
The records of the case as against Jackson Ong is hereby ordered archived pending his arrest.

With costs against accused Gemma Catacutan.20

In resolving the case, the RTC narrowed down the issue to whether Gemma Catacutan was the
same accused identified as Gemma Ong. The RTC answered this in the affirmative as it found
Gemma’s defense of mistaken identity as untenable, especially since she claimed to be a
professional. The RTC explained:

Ranged against the positive and forthright declaration of the prosecution witnesses, the mere
uncorroborated and self-serving denials of the accused cannot stand. (People vs. Hortaleza, 258
SCRA 201)

We note in disbelief that it was only in the hearing of November 26, 2001, that accused’[s] former
lawyer manifested that accused is known as Gemma Catacutan never as Gemma Ong (tsn,
November 26, 2001, p. 3) and as admitted by her, she never revealed her true identity when
arrested, when she posted her bail bond and even during her arraignment.

She could have protested at the time of her arrest that they were arresting the wrong person but this
she did not do. She proceeded to post a bond for her provisional liberty, hired a lawyer to defend her
but failed to divulge the very information that could have led to an early dismissal of the case, if true.

Her pretensions of ignorance as to the proper stage of when to explain (tsn, May 26, 2003), p. 13
can hardly be given credit. A dentist by profession, it is utterly incredible that she remained meek all
through-out her arrest and the posting of her bail bond.21

The RTC also unfurled the fact that while Gemma claimed to have never engaged in the sale and
manufacture of Marlboro cigarettes, the address of her business "Fascinate Trading" is registered as
1677 Bulacan Street, Sta. Cruz, Manila, the same property raided by the EIIB that contained the
counterfeit cigarettes.22

Aggrieved, Gemma appealed the RTC’s decision to the Court of Appeals based on the following
grounds:

THE LOWER COURT GRIEVOUSLY ERRED IN CONVICTING DR. MARIA TERESA

GEMMA CATACUTAN GUILTY OF THE CRIME OF VIOLATION OF THE INTELLECTUAL
PROPERTY RIGHTS LAW DESPITE UTTER LACK OF EVIDENCE.

II

THE LOWER COURT IN CONVICTING DR. MARIA TERESA GEMMA CATACUTAN ON

THE BASIS OF SURMISE (sic), CONJECTURES AND GUESSWORK COMMITTED
GRAVE VIOLENCE AGAINST THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

III

THE LOWER COURT COMMITTED SERIOUS REVERSIBLE ERROR IN CONVICTING

THE ACCUSED-APPELLANT WHO HAD NOT BEEN POSITIVELY IDENTIFIED AND
PINPOINTED AS MANUFACTURER NOR (sic) DISTRIBUTOR OF FAKE MARLBORO
PRODUCT.

IV

THE LOWER COURT COMMITTED SERIOUS REVERSIBLE ERROR IN NOT GIVING THE
SLIGHTEST CREDENCE TO THE UNCONTRADICTED, UNREFUTED AND CANDID
TESTIMONY OF THE ACCUSED-APPELLANT, BUT INSTEAD, CONVICTED HER ON
[T]HE BASIS OF EXTRAPOLATED EVIDENCE NOT BORNE BY THE RECORDS.

THE LOWER COURT COMMITTED A GRAVE REVERSIBLE ERROR IN CONVICTING

ACCUSED-APPELLANT DESPITE THE UTTER AND PATHETIC LACK OF EVIDENCE TO
SUSTAIN THE PROSECUTION’S LAME, SHALLOW AND UNCONFOUNDED THEORY OF
GUILT.23
The Court of Appeals found Gemma’s appeal to be unmeritorious. It said that Gemma was positively
identified by the prosecution witnesses as the woman who entertained them during the search of the
subject premises on September 25, 1998, and the woman who signed the Certification in the
Conduct of Search and Inventory. The Court of Appeals agreed with the RTC’s rejection of Gemma’s
defense of mistaken identity, as she should have raised it at the earliest opportunity, which was at
the time of her arrest, the posting of her bail bond, or during her arraignment. The Court of Appeals
held that the amendment of the prosecution witnesses’ affidavits was explained during the hearing,
and although the original affidavits were the ones marked during the pre-trial, the amended ones
provided the basis for the filing of the Information against Gemma and her co-accused Jackson Ong.
The Court of Appeals also noted that the March 20, 2000 Resolution of the State Prosecutor
specifically mentioned that the search warrant was served on Gemma Ong. The Court of Appeals
then proclaimed that in the hierarchy of evidence, the testimony of the witness in court commands
greater weight than his written affidavit.24

The Court of Appeals affirmed the conviction of Gemma for trademark infringement under Section
155 of Republic Act No. 8293, as the counterfeit goods seized by the EIIB were not only found in her
possession and control, but also in the building registered under her business, Fascinate Trading.
The Court of Appeals said that the prosecution had satisfactorily proven Gemma’s commission of
the offense since the unauthorized use of the trademark Marlboro, owned by PMPI, was clearly
intended to deceive the public as to the origin of the cigarettes being distributed and sold, or
intended to be distributed and sold. The Court of Appeals further sustained the penalty and damages
imposed by the RTC for being in accord with the law and facts.25

Gemma is now before this Court with the following assignment of errors:

A.

THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF

PROSECUTION WITNESSES IDENTIFYING PETITIONER AS PRESENT AT THE TIME AND
PLACE WHEN THE SEARCH AND SEIZURE TOOK PLACE.

B.

THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF

PROSECUTION WITNESSES THAT THEY SAW PETITIONER SIGN HER NAME AS "GEMMA
ONG" AS OWNER/CLAIMANT/REPRESENTATIVE (OF THE ARTICLES SEIZED) ON THE
SEARCH WARRANT (EXH. "A"), CERTIFICATION IN THE CONDUCT OF SEARCH (EXH. "B")
AND INVENTORY OF THE S[E]IZED ARTICLES AT THE TIME OF THE SEARCH (EXH. "D").

C.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT PETITIONER’S SIGNATURE IN

EXHIBITS "A", "B" AND "C" ARE NOT HERS BUT WERE FORGED, BEING COMPLETELY AND
PATENTLY DISSIMILAR TO HER TRUE AND REAL SIGNATURE AS SHOWN IN HER OFFICIAL
I.D AS PROFESSIONAL DENTIST.

D.

THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE AFFIDAVITS OF THE

PROSECUTION WITNESSES WHICH DID NOT MENTION PETITIONER’S PRESENCE AT THE
TIME AND PLACE OF THE SEARCH CANNOT TAKE PRECEDENCE OVER THEIR CONTRARY
TESTIMONIES IN COURT THAT SHE WAS PRESENT AND IN FACT THE OCCUPANT AND
OWNER OF THE PREMISES FROM WHICH SHE INITIALLY BLOCKED THEIR ENTRY INTO.

E.

THE COURT OF APPEALS ERRED IN CONCLUDING THAT [PETITIONER] WAS THE VERY
SAME PERSON WHO WAS CAUGHT IN POSSESSION AND CONTROL OF THE PREMISES
WHERE THE COUNTERFEIT ARTICLES WERE SEIZED BECAUSE SHE ALLEGEDLY NEVER
PROTESTED BEING WRONGFULLY ACCUSED AT THE TIME OF HER ARREST ON 4 AUGUST
2000, WHEN SHE POSTED HER CASH BOND AND WHEN SHE EVEN SIGNED HER NAME AS
MA. TERESA GEMMA CATACUTAN IN THE WAIVER, UNDERTAKING AND CERTIFICATE OR
ARRAIGNMENT, ALL IN THE NAME OF THE ACCUSED AS "GEMMA ONG, a.k.a. MA. THERESA
CATACUTAN."

F.
THE COURT OF APPEALS ERRED IN NOT ACQUITTING [PETITIONER] FOR FAILURE OF THE
PROSECUTION TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND
REASONABLE DOUBT.26

Gemma argues that if it were true that she was in the subject premises when it was raided on
September 25, 1998, then her name and presence would have been mentioned in the respective
affidavits of Slagle and Atty. Ancheta; and the EIIB agents who conducted the search would have
confronted, investigated, or arrested her. Gemma insists that the fact that her name was only
mentioned for the first time in the amended affidavits yields to the conclusion that she was not in the
subject premises when it was searched and that the testimonies of the prosecution witnesses were
perjured.27

Gemma further claims that the courts below were wrong in finding that she never protested that she
was mistakenly identified. She claims that she was arrested without the benefit of a preliminary
investigation and all she wanted to do at that point was to "get out [of] the clutches of overzealous
and eager beaver policemen who were exuberant in arresting an innocent party like"28 her. Gemma
also explains that her non-protest during her arraignment was upon the advice of her former lawyer,
who said that he would correct it in the proper time during the trial.

Respondent People of the Philippines, in its comment,29 avers that there are only two issues to be
resolved in this case, to wit:

1. THE INSTANT PETITION IS FATALLY DEFECTIVE AS IT RAISES QUESTIONS OF

FACT WHICH ARE NOT PROPER FOR REVIEW UNDER RULE 45 OF THE REVISED
RULES OF COURT.

2. THE COURT OF APPEALS DID NOT ERR IN AFFIRMING PETITIONER’S CONVICTION

FOR VIOLATION OF SECTION 155 IN RELATION TO SECTION 170 OF R.A. 8293
(INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES).30

Respondent claims that a perusal of the issues in Gemma’s petition readily discloses that only
questions of fact have been raised, which are not reviewable in an appeal by certiorari.31 Respondent
asseverates that Gemma’s conviction was warranted as the prosecution had sufficiently established
her presence during the search of the subject premises where she signed the search documents as
"Gemma Ong." Moreover, the respondent avers, Gemma failed to timely protest her arrest and raise
her claim that she is not Gemma Ong.32

Issues

A study of the pleadings filed before this Court shows that the only issues to be resolved are the
following:

1. Whether or not accused-appellant’s petition for review on certiorari under Rule 45 of the
Rules of Court is fatally defective as it raises questions of fact; and

2. Whether or not Gemma’s guilt was proven beyond reasonable doubt in light of her alleged
mistaken identity.

This Court’s Ruling

Procedural Issue

As this case reached this Court via Rule 45 of the Rules of Court, the basic rule is that factual
questions are beyond the province of this Court, because only questions of law may be raised in a
petition for review.33 However, in exceptional cases, this Court has taken cognizance of questions of
fact in order to resolve legal issues, such as when there was palpable error or a grave
misapprehension of facts by the lower court.34 In Armed Forces of the Philippines Mutual Benefit
Association, Inc. v. Court of Appeals,35 we said that although submission of issues of fact in an
appeal by certiorari taken to this Court is ordinarily proscribed, this Court nonetheless retains the
option in the exercise of its sound discretion, taking into account the attendant circumstances, either
to decide the case or refer it to the proper court for determination.36 Since the determination of the
identity of Gemma is the very issue affecting her guilt or innocence, this Court chooses to take
cognizance of this case in the interest of proper administration of justice.

Gemma is guilty of violating Section 155 in relation to Section 170 of Republic Act No. 8293

Gemma was charged and convicted of violating Section 155 in relation to Section 170 of Republic
Act No. 8293, or the Intellectual Property Code of the Philippines.
Section 155. Remedies; Infringement. - Any person who shall, without the consent of the owner of
the registered mark:

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered
mark or the same container or a dominant feature thereof in connection with the sale, offering for
sale, distribution, advertising of any goods or services including other preparatory steps necessary to
carry out the sale of any goods or services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature
thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints,
packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall
be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth:
Provided, That the infringement takes place at the moment any of the acts stated in Subsection
155.1 or this subsection are committed regardless of whether there is actual sale of goods or
services using the infringing material. (Sec. 22, R.A. No 166a)

Section 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a
criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty
thousand pesos (₱ 50,000) to Two hundred thousand pesos (₱ 200,000), shall be imposed on any
person who is found guilty of committing any of the acts mentioned in Section 155, Section 168 and
Subsection 169.1. (Arts. 188 and 189, Revised Penal Code.) (Emphases supplied.)

A "mark" is any visible sign capable of distinguishing the goods (trademark) or services (service
mark) of an enterprise and shall include a stamped or marked container of goods.37

In McDonald’s Corporation and McGeorge Food Industries, Inc. v. L.C. Big Mak Burger, Inc.,38 this
Court held:

To establish trademark infringement, the following elements must be shown: (1) the validity of
plaintiff’s mark; (2) the plaintiff’s ownership of the mark; and (3) the use of the mark or its colorable
imitation by the alleged infringer results in "likelihood of confusion." Of these, it is the element of
likelihood of confusion that is the gravamen of trademark infringement.

A mark is valid if it is distinctive and not barred from registration. Once registered, not only the
mark’s validity, but also the registrant’s ownership of the mark is prima facie presumed.39

The prosecution was able to establish that the trademark "Marlboro" was not only valid for being
neither generic nor descriptive, it was also exclusively owned by PMPI, as evidenced by the
certificates of registration issued by the Intellectual Property Office of the Department of Trade and
Industry.40

Anent the element of confusion, both the RTC and the Court of Appeals have correctly held that the
counterfeit cigarettes seized from Gemma’s possession were intended to confuse and deceive the
public as to the origin of the cigarettes intended to be sold, as they not only bore PMPI’s mark, but
they were also packaged almost exactly as PMPI’s products.41

Regarding the Claim of Mistaken Identity

Despite all these findings, Gemma has posited only a single defense, from the RTC all the way up to
this Court: that she is not the Gemma Ong named and accused in this case. She bases this claim on
the alleged discrepancies in the prosecution witnesses’ original affidavits vis-à-vis the amended
ones, which discrepancies, according to her, strongly suggest her innocence.

This Court has time and again held that between an affidavit executed outside the court, and a
testimony given in open court, the latter almost always prevails.

Discrepancies between a sworn statement and testimony in court do not outrightly justify the
acquittal of an accused. Such discrepancies do not necessarily discredit the witness since ex parte
affidavits are often incomplete. They do not purport to contain a complete compendium of the details
of the event narrated by the affiant. Thus, our rulings generally consider sworn statements taken out
of court to be inferior to in court testimony. x x x.42

A reading of the original affidavits43 executed by Slagle and Atty. Ancheta, readily reveals that they
concentrated on the facts and events leading up to the search and seizure of the contraband
materials from the subject premises. They not only failed to mention Gemma Ong’s presence there,
but they also failed to mention the other witnesses’ names and presence there as well. Although this
might appear to be a mistake on the part of a known and established law firm like the Quasha Law
Office, the firm immediately sought to rectify this by having the affidavits of Slagle, Atty. Ancheta,
and Lara amended.

If it were true that Gemma was not at the subject premises at all on September 25, 1998, then she
should have grabbed every chance to correct this notion and expose this mistake before she was
arrested. She could have brought up her defense of mistaken identity or absence at the raid in the
preliminary investigation conducted prior to the issuance of her warrant of arrest; but instead, she
chose to ignore her subpoena and disregard the preliminary investigation. Even then, Gemma had
the opportunity to raise the fact that she was not Gemma Ong; not only during her arrest, but also
during the posting of the cash bond for her bail, and more importantly, during her arraignment, when
she was asked if she understood the charges against her. Gemma also knew that the Information
was filed against her on the basis of the amended affidavits, thus, she could have filed a motion to
quash the information before she entered her plea, or asked that a reinvestigation be conducted.
However, all these Gemma failed to do. We agree with the RTC that it is highly unlikely that a person
of her stature and educational attainment would be so meek and timid that she failed to protest
against her being wrongly identified, accused, arrested, and potentially imprisoned. If what she says
were true, she would not have agreed to post bail or to be arraigned without at the very least,
bringing up the fact that she was not the Gemma Ong the police officers were looking for. In
addition, her own lawyer, Atty. Maglinao, brought up the fact that she was not Gemma Ong, only for
the purpose of correcting the Information, and not to contest it, to wit:

WITNESS ROGER SHERMAN SLAGLE UNDER THE SAME OATH FOR CONTINUATION OF
DIRECT EXAMINATION BY:

ATTY. ERESE:

With the kind permission of the hon. court.

COURT: Proceed.

ATTY. MAGLINAO:

I would just want to be on record that my client, Gemma Catacutan has never been known as
Gemma Ong because her real name is Gemma Catacutan.

COURT: Do you have any objection to the amendment of the information?

ATTY. MAGLINAO:

No, your Honor. May we request to correct the information from Gemma Ong to Gemma
Catacutan.44

Gemma further accuses the prosecution witnesses of falsely testifying and of perjuring themselves
just so they can satisfy a big client like PMPI by showing that somebody had been arrested for
counterfeiting its cigarettes. The crimes Gemma is imputing on these witnesses are serious crimes,
and in the absence of concrete and convincing evidence, this Court could not believe her mere
allegations that imply that these people would destroy someone’s life just so they can please a
client, more so over mere cigarettes. In Principio v. Hon. Barrientos,45 we said:

Bad faith is never presumed while good faith is always presumed and the chapter on Human
Relations of the Civil Code directs every person, inter alia, to observe good faith, which springs from
the fountain of good conscience. Therefore, he who claims bad faith must prove it. For one to be in
bad faith, the same must be "evident." x x x.46

The prosecution witnesses, contrary to Gemma’s claim, had positively identified her as the person
who initially refused the search team entrance, then later acquiesced to the search operations.
Slagle explained that even though he mentioned Gemma only in his amended affidavit, he was sure
that she was at the subject premises on the day that they searched it:

Testimony of Roger Sherman Slagle

ATTY. MAGLINAO:

Q In this amended affidavit you mentioned the name, Gemma Catacutan as one of the accused?

A Yes sir.
Q Can you tell the court how you were able to include the name of Gemma Catacutan in your
amended affidavit, when in fact it did not appear in the first affidavit?

A When we arrived she was there and she was very nervous and upset.

xxxx

A It is very clear to me when I arrived there that she was somehow involved.47 (Emphases ours.)

Lara on the other hand, even pointed to her and thus positively identified her to be the one who had
signed the search documents,48 as the owner of the subject premises, to wit:

Testimony of Jesse Lara

ATTY. FREZ

Q : Mr. Witness, do you know this person who wrote the name Gemma Ong?

A : Yes, sir, Gemma Ong is the owner of the premises when we served the search warrant and also,
she was the one who refused us to gain entry during the service of the search warrant.

Q : Were you able to gain entry at the premises?

A : Yes, sir.

Q : So, as regard to the person whom you identify as the one who refused you to gain entry, would
you be able to identify this person?

A : Yes, sir, that lady in pink is Mrs. Gemma Ong.

(As witness is pointing to the accused Gemma Ong).

Q : Mr. Witness, why do you say that the person whom you pointed to us is the one who wrote the
name Mrs. Gemma Ong?

WITNESS

Because when we served the search warrant she signed it in our presence and that is her own
signature.

xxxx

ATTY. FREZ

Q : So, Mr. Witness, in this Inventory, we made some markings during the pre-trial conference and I
see here above the signature (Owner/Representative), there exist a handwritten name which reads
GEMMA ONG and above it, there exist a signature, are you familiar with this person which appears
to be Gemma Ong?

A : Yes, sir, Gemma Ong signed that in my presence.

Q : Your Honor, during the pre-trial conference, it was previously marked as Exhibit "D-1". Mr.
Witness, I also see here a Verification but there also exist an entry below the name and I quote
"Owner/Claimant/Representative", there appears a handwritten name Gemma Ong and a signature
above it, are you familiar with this person which appears to be Gemma Ong?

A : Yes, sir, Gemma Ong signed that in my presence.

xxxx

Q : Mr. Witness, in this document which is the certification in the Conduct of Search and I have here
above the entry (Owner/Representative), a handwritten name which reads Gemma Ong and there
exist a signature above the handwritten name, can you identify the signature?

A : Yes, sir, this was signed by Gemma Ong in my presence.49 (Emphases ours.)

Lara further attested to the fact that the search warrant was served on Gemma, who later on
entertained the search team:

ATTY. FREZ

Mr. Witness, the person to whom you served the search warrant is identified as Mrs. Gemma Ong,
do you know her relationship with the accused Jackson Ong?

ATTY. FERNANDEZ

Objection, your honor, the witness would be incompetent . . .

COURT

May answer.

(The stenographer read back the question).

WITNESS

I am not familiar with the relationship of Mrs. Gemma Ong with Jackson Ong because during the
service of the search warrant, Mrs. Gemma Ong was there together with two employees and when I
asked where was Jackson Ong, she was the one who entertained us.

ATTY. FREZ

So, the search warrant was served against Gemma Ong?

WITNESS

Yes, Sir.50

Positive identification of a culprit is of great weight in determining whether an accused is guilty or

not.51 Gemma, in claiming the defense of mistaken identity, is in reality denying her involvement in
the crime. This Court has held that the defense of denial is insipid and weak as it is easy to fabricate
and difficult to prove; thus, it cannot take precedence over the positive testimony of the offended
party.52 The defense of denial is unavailing when placed astride the undisputed fact that there was
positive identification of the accused.53

While Gemma claims she does not know Jackson Ong, the subject premises where the counterfeit
cigarettes were seized was registered under her admitted business "Fascinate Trading."54 Aside from
the bare allegation that she had stopped operations in the subject premises as early as February
1998, she has neither proven nor shown any evidence that she had relinquished control of the
building after that date. Gemma’s allegation that she did not sign the search documents, and that the
signatures therein did not match the signature on her PRC identification card, must also be struck
down as she has not shown proof that her PRC signature is the only way she has ever signed her
name. She could have, at the very least, gotten a handwriting expert to testify on her behalf that
there is no way that the signatures in the search documents and the signature on her PRC
identification card could have been written by one and the same person; instead, she relied on the
flimsy contention that the two signatures were, on their face, different.
1awp++i1

Gemma’s defense consists of her claim of mistaken identity, her denial of her involvement in the
crime, and her accusation against the prosecution witnesses of allegedly giving false testimonies
and committing perjury. These are all weak, unproven, and unfounded claims, and will not stand
against the strong evidence against her.

WHEREFORE, this Court DENIES the Petition. The June 16, 2005 Decision of the Court of Appeals
in CA-G.R. CR No. 28308 is AFFIRMED.

SO ORDERED.

G.R. No. 182239               March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.

DECISION
PEREZ, J.:

Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the
victim’s positive identification of the accused as the perpetrator of the crime.1 For it to prosper, the
court must be convinced that there was physical impossibility on the part of the accused to have
been at the locus criminis at the time of the commission of the crime.2

Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and
executory only after his disqualification from availing of the benefits of suspended sentence on the
ground that he/she has exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with Republic Act No. 9344,
otherwise known as "An Act Establishing a Comprehensive Juvenile Justice and Welfare System,
Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes."

Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before this Court the
reversal of the judgment of his conviction.4

The Facts

In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as Criminal
Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly committed as
follows:

That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or less, at
barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court,
[Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully and feloniously had
carnal knowledge with one AAA, a five-year old minor child.

CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only
five years old.7

On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the defense admitted the
existence of the following documents: (1) birth certificate of AAA, showing that she was born on 3
December 1997; (2) police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.

Trial ensued with the prosecution and the defense presenting witnesses to prove their respective
versions of the story.

Evidence for the Prosecution

The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be
summarized in the following manner:

FFF and appellant have been neighbors since they were born. FFF’s house is along the road. That
of appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to
pass by FFF’s house, the frequency of which the latter describes to be "every minute [and] every
hour." Also, appellant often visits FFF because they were close friends. He bore no grudge against
appellant prior to the incident.13

AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time – playing
at the basketball court near her house, fetching water, and passing by her house on his way to the
road. She and appellant used to be friends until the incident.14

At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter
CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned
without AAA, FFF was not alarmed. He thought she was watching television at the house of her aunt
Rita Lingcay [Rita].15

Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum.16 At the
store, he saw appellant place AAA on his lap.17 He was wearing sleeveless shirt and a pair of short
pants.18 All of them left the store at the same time.19 Julito proceeded to the house of Rita to watch
television, while appellant, who held the hand of AAA, went towards the direction of the "lower area
or place."20

AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he held
her hand while on the road near the store.22 They walked towards the rice field near the house of
spouses Alejandro and Gloria Perocho [the Perochos].23 There he made her lie down on harrowed
ground, removed her panty and boxed her on the chest.24 Already half-naked from waist down,25 he
mounted her, and, while her legs were pushed apart, pushed his penis into her vagina and made a
push and pull movement.26 She felt pain and cried.27 Afterwards, appellant left and proceeded to the
Perochos.28 She, in turn, went straight home crying.29

FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He found
her face greasy.32 There was mud on her head and blood was oozing from the back of her head.33 He
checked for any injury and found on her neck a contusion that was already turning black.34 She had
no underwear on and he saw white substance and mud on her vagina.35 AAA told him that appellant
brought her from the store36 to the grassy area at the back of the house of the Perochos;37 that he
threw away her pair of slippers, removed her panty, choked her and boxed her breast;38 and that he
proceeded thereafter to the Perochos.39

True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant what he
did to AAA.41 Appellant replied that he was asked to buy rum at the store and that AAA followed
him.42 FFF went home to check on his daughter,43 afterwhich, he went back to appellant, asked
again,44 and boxed him.45

Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the
house of Rita.46 AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her, embraced
her, and asked what happened to her, to which she replied that appellant raped her.49 Julito left and
found appellant at the Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the
daughter of [MMM]?" but the latter ignored his question.51 Appellant’s aunt, Gloria, told appellant that
the policemen were coming to which the appellant responded, "Wait a minute because I will wash
the dirt of my elbow (sic) and my knees."52 Julito did found the elbows and knees of appellant with
dirt.53

On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health center.55 Dr.
Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate56 dated 29 January
2003. It reads:

Injuries seen are as follows:

1. Multiple abrasions with erythema along the neck area.

2. Petechial hemorrhages on both per-orbital areas.

3. Hematoma over the left upper arm, lateral area

4. Hematoma over the upper anterior chest wall, midclavicular line

5. Abrasion over the posterior trunk, paravertebral area

6. Genital and peri-anal area soiled with debris and whitish mucoid-like material

7. Introitus is erythematous with minimal bleeding

8. Hymenal lacerations at the 5 o’clock and 9 o’clock position

Impression

MULTIPLE SOFT TISSUE INJURIES

HYMENAL LACERATIONS

Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at the
provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the
provincial hospital, attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:

P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no
bleeding in this time of examination. (sic)59

Evidence for the Defense

Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his
testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was
at the Perochos at the time of the commission of the crime.60 Luzvilla even went further to state that
she actually saw Julito, not appellant, pick up AAA on the road.61 In addition, Antonia Perocho
[Antonia], sister-in-law of appellant’s aunt, Gloria,62 testified on the behavior of Julito after the rape
incident was revealed.63

Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of
FFF’s house.64 He denied that there was a need to pass by the house of FFF in order to access the
road or to fetch water.65 He, however, admitted that he occasionally worked for FFF,66 and whenever
he was asked to buy something from the store, AAA always approached him.67

At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend a
birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro
Perocho [Alejandro], were gathered together in a drinking session, appellant’s uncle sent him to the
store to buy Tanduay Rum. Since the store is only about 20 meters from the house, he was able to
return after three (3) minutes. He was certain of the time because he had a watch .68

Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the
birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle of
Tanduay from the store. She recalled that appellant was back around five (5) minutes later. She also
observed that appellant’s white shorts and white sleeveless shirt were clean.69

At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having a
drink with his uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at the side
of the tree beside the road next to the house of the Perochos.72 From where she was, she saw Julito,
who was wearing black short pants and black T-shirt, carry AAA.73 AAA’s face was covered and she
was wiggling.74 This did not alarm her because she thought it was just a game.75 Meanwhile,
appellant was still in the kitchen when she returned.76 Around three (3) minutes later, Luzvilla saw
Julito, now in a white T-shirt,77 running towards the house of Rita.78 AAA was slowly following
behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced AAA and asked what the
appellant did to her.81 The child did not answer.82

Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that
appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant,
boxed him, and left. FFF came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay councilor, and another Civilian
Voluntary Organization (CVO) member admonished FFF.83

On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the television
along with other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of
black short pants without a shirt on, entered the house drunk. He paced back and forth. After 10
minutes, AAA came in crying. Julito tightly embraced AAA and asked her what happened. AAA did
not answer. Upon Antonia’s advice, Julito released her and went out of the house.84

Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at him,
brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o’clock in
the evening. This time, he boxed appellant and asked again why he molested his daughter.85

On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive portion of which
reads:

WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay [AAA]
P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs87

The defense moved to reopen trial for reception of newly discovered evidence stating that appellant
was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the
crime was committed on 28 January 2003.88 The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.89 Thus:

WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended
in order to consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon
the accused, therefore[,] is reduced to reclusion perpetua. xxx

Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of
the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate
review by the Court of Appeals of cases where the penalty imposed is death, reclusion perpetua, or
life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:

xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1)
day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months
of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in
the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as
exemplary damages and to pay the costs.91

On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of
Appeal.92 This Court required the parties to simultaneously file their respective supplemental
briefs.93 Both parties manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94

Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"95 by invoking the principle that "if the inculpatory facts and circumstances are capable of two
or more reasonable explanations, one of which is consistent with the innocence of the accused and
the other with his guilt, then the evidence does not pass the test of moral certainty and will not
suffice to support a conviction."96

Our Ruling

We sustain the judgment of conviction.

In the determination of the innocence or guilt of a person accused of rape, we consider the three
well-entrenched principles:

(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the
accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which
only two persons are usually involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and
cannot be allowed to draw strength from the weakness of the evidence for the defense.97

Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict
the accused.98 More so, when the testimony is supported by the medico-legal findings of the
examining physician.99

Further, the defense of alibi cannot prevail over the victim’s positive identification of the perpetrator
of the crime,100 except when it is established that it was physically impossible for the accused to have
been at the locus criminis at the time of the commission of the crime.101

A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in
the absence of any of the following circumstances: (a) through force, threat or intimidation; (b) when
the offended party is deprived of reason or otherwise unconscious; or (c) by means of fraudulent
machination or grave abuse of authority.102

That the crime of rape has been committed is certain. The vivid narration of the acts culminating in
the insertion of appellant’s organ into the vagina of five-year-old AAA and the medical findings of the
physicians sufficiently proved such fact.

AAA testified:

PROS. OMANDAM:

xxxx

Q You said Hermie laid you on the ground, removed your panty and boxed you, what else
did he do to you?

A He mounted me.

Q When Hermie mounted you, was he facing you?

A Yes.
 Q When he mounted you what did he do, did he move?

A He moved his ass, he made a push and pull movement.

Q When he made a push and pull movement, how were your legs positioned?

A They were apart.

Q Who pushed them apart?

A Hermie.

Q Did Hermie push anything at you?

A Yes.

Q What was that?

A His penis.

Q Where did he push his penis?

A To my vagina.

Q Was it painful?

A Yes.

Q What was painful?

A My vagina.

Q Did you cry?

A Yes.103

The straightforward and consistent answers to the questions, which were phrased and re-phrased in
order to test that AAA well understood the information elicited from her, said it all – she had been
raped. When a woman, more so a minor, says so, she says in effect all that is essential to show that
rape was committed.104 Significantly, youth and immaturity are normally badges of truth and
honesty.105

Further, the medical findings and the testimony of Dr. Micabalo106 revealed that the hymenal
lacerations at 5 o’clock and 9 o’clock positions could have been caused by the penetration of an
object; that the redness of the introitus could have been "the result of the repeated battering of the
object;" and that such object could have been an erect male organ.107

The credible testimony of AAA corroborated by the physician’s finding of penetration conclusively
established the essential requisite of carnal knowledge.108

II

The real identity of the assailant and the whereabouts of the appellant at the time of the commission
of the crime are now in dispute.

The defense would want us to believe that it was Julito who defiled AAA, and that appellant was
elsewhere when the crime was committed.109

We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a good look at
him during the commission of the crime.110 AAA had known appellant all her life. Moreover, appellant
and AAA even walked together from the road near the store to the situs criminus111 that it would be
impossible for the child not to recognize the man who held her hand and led her all the way to the
rice field.

We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was accused, whom she
called "kuya" and who used to play basketball and fetch water near their house, and who was
wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive. The
defense attempted to impute the crime to someone else – one Julito Apiki, but the child, on rebuttal,
was steadfast and did not equivocate, asserting that it was accused who is younger, and not Julito,
who is older, who molested her.112

In a long line of cases, this Court has consistently ruled that the determination by the trial court of the
credibility of the witnesses deserves full weight and respect considering that it has "the opportunity to
observe the witnesses’ manner of testifying, their furtive glances, calmness, sighs and the scant or
full realization of their oath,"113 unless it is shown that material facts and circumstances have been
"ignored, overlooked, misconstrued, or misinterpreted."114

Further, as correctly observed by the trial court:

xxx His and his witness’ attempt to throw the court off the track by imputing the crime to someone
else is xxx a vain exercise in view of the private complainant’s positive identification of accused and
other corroborative circumstances. Accused also admitted that on the same evening, Julito Apiki, the
supposed real culprit, asked him "What is this incident, Pare?", thus corroborating the latter’s
testimony that he confronted accused after hearing of the incident from the child."115

On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial
and alibi weak despite the presentation of witnesses to corroborate his testimony. Glaring
inconsistencies were all over their respective testimonies that even destroyed the credibility of the
appellant’s very testimony.

Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay;
that he gave the bottle to his uncle; and that they had already been drinking long before he bought
Tanduay at the store.

This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-
examination, she revealed that her husband was not around before, during, and after the rape
incident because he was then at work.116 He arrived from work only after FFF came to their house for
the second time and boxed appellant.117 It was actually the fish vendor, not her husband, who asked
appellant to buy Tanduay.118 Further, the drinking session started only after the appellant’s errand to
the store.119

Neither was the testimony of Luzvilla credible enough to deserve consideration.

Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to
Gloria’s statement that her husband was at work.

Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho.
Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito wore a
white shirt on his way to the house of Rita. In addition, while both the prosecution, as testified to by
AAA and Julito, and the defense, as testified to by Gloria, were consistent in saying that appellant
wore a sleeveless shirt, Luzvilla’s recollection differ in that Julito wore a T-shirt (colored black and
later changed to white), and, thus, a short-sleeved shirt.

Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3) minutes
after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the
house of Rita at 7:30. In this respect, we find the trial court’s appreciation in order. Thus:

xxx. The child declared that after being raped, she went straight home, crying, to tell her father that
Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among strangers
who were watching TV, as Luzvilla Balucan would have the court believe. When the child was seen
at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after she had been
brought there by her mother Brenda so that Lita Lingkay could take a look at her ˗ just as Julito Apiki
said.120

Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been
offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot
qualify as such, "they being related or were one way or another linked to each other."121

Even assuming for the sake of argument that we consider the corroborations on his whereabouts,
still, the defense of alibi cannot prosper.

We reiterate, time and again, that the court must be convinced that it would be physically impossible
for the accused to have been at the locus criminis at the time of the commission of the crime.122
Physical impossibility refers to distance and the facility of access between the situs criminis and the
location of the accused when the crime was committed. He must demonstrate that he was so far
away and could not have been physically present at the scene of the crime and its immediate vicinity
when the crime was committed.123

In People v. Paraiso,124 the distance of two thousand meters from the place of the commission of the
crime was considered not physically impossible to reach in less than an hour even by
foot.125 Inasmuch as it would take the accused not more than five minutes to rape the victim, this
Court disregarded the testimony of the defense witness attesting that the accused was fast asleep
when she left to gather bamboo trees and returned several hours after. She could have merely
presumed that the accused slept all throughout.126

In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the appellant
that he was in their company at the time of the commission of the crime were likewise disregarded
by this Court in the following manner:

Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-in-law
and co-worker, in unison, vouched for the appellant’s physical presence in the fishpond at the time
Rachel was raped. It is, however, an established fact that the appellant’s house where the rape
occurred, was a stone’s throw away from the fishpond. Their claim that the appellant never
left their sight the entire afternoon of December 4, 1997 is unacceptable. It was impossible for
Marites to have kept an eye on the appellant for almost four hours, since she testified that she, too,
was very much occupied with her task of counting and recording the fishes being harvested.
Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have
focused his entire attention solely on the appellant. It is, therefore, not farfetched that the
appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her
inside his house and ravished her, then returned to the fishpond as if he never
left.128 (Emphasis supplied.)1avvphi1

As in the cases above cited, the claim of the defense witnesses that appellant never left their sight,
save from the 5-minute errand to the store, is contrary to ordinary human experience. Moreover,
considering that the farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the road near the store next
to the Perochos down the farmland and consummate the crime. As correctly pointed out by the
Court of Appeals, appellant could have committed the rape after buying the bottle of Tanduay and
immediately returned to his uncle’s house.129 Unfortunately, the testimonies of his corroborating
witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime.130

Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the
time and place of the commission of the crime.

All considered, we find that the prosecution has sufficiently established the guilt of the appellant
beyond reasonable doubt.

III

In the determination of the imposable penalty, the Court of Appeals correctly considered Republic
Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three
(3) years before it was enacted on 28 April 2006.

We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131

[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who have
been convicted and are serving sentence at the time of the effectivity of this said Act, and who were
below the age of 18 years at the time of the commission of the offense. With more reason, the Act
should apply to this case wherein the conviction by the lower court is still under
review.133 (Emphasis supplied.)

Criminal Liability; Imposable Penalty

Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18)
years of age from criminal liability, unless the child is found to have acted with discernment, in which
case, "the appropriate proceedings" in accordance with the Act shall be observed.134

We determine discernment in this wise:

Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful
act.135 Such capacity may be known and should be determined by taking into consideration all the
facts and circumstances afforded by the records in each case.136

xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and
that it was wrong.137 Such circumstance includes the gruesome nature of the crime and the minor’s
cunning and shrewdness.138

In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark
place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her
defense" are indicative of then seventeen (17) year-old appellant’s mental capacity to fully
understand the consequences of his unlawful action.139

Nonetheless, the corresponding imposable penalty should be modified.

The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that she
was only five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the
death penalty when rape is committed against a child below seven (7) years old141 applies.

The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346;142 and (2) the privileged
mitigating circumstance of minority of the appellant, which has the effect of reducing the penalty one
degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal Code.143

Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of penalties
provided in Article 71 of the Revised Penal Code.145 Consequently, in its appreciation of the
privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years
and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, in its medium period, as maximum.146

We differ.

In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de
Castro, clarified:

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper penalty because of the privileged
mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned
with. Thus, the proper imposable penalty for the accused-appellant is reclusion
perpetua.148 (Emphasis supplied.)

Accordingly, appellant should be meted the penalty of reclusion perpetua.

Civil Liability

We have consistently ruled that:

The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether
the penalty actually imposed is reduced to reclusion perpetua.149

Likewise, the fact that the offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her family.150 The respective
awards of civil indemnity and moral damages in the amount of ₱75,000.00 each are, therefore,
proper.151

Accordingly, despite the presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of
Appeals in the amount of ₱75,000.00 as civil indemnity and ₱75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,152 the amount of exemplary damages should be increased
from ₱25,000.00 to ₱30,000.00.

Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period
of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of conviction is
pronounced. Thus:

SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt. (Emphasis supplied.)

xxxx

Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of Appeals

held that, consistent with Article 192 of Presidential Decree No. 603, as amended,154 the aforestated
provision does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.155

Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,156 overturning the
ruling in Gubaton. Thus:

The xxx provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme
Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict
with the law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is
guided by the basic principle of statutory construction that when the law does not distinguish, we
should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been
convicted of a capital offense and another who has been convicted of a lesser offense, the Court
should also not distinguish and should apply the automatic suspension of sentence to a child in
conflict with the law who has been found guilty of a heinous crime.157

The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402 (Juvenile
Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this Court
to cover heinous crimes in the application of the provision on the automatic suspension of sentence
of a child in conflict with the law. The pertinent portion of the deliberation reads:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have
committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local Council
for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago’s] proposed Office of
Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests,
and restoration of the child should still be a primordial or primary consideration. Even in heinous
crimes, the intention should still be the child’s restoration, rehabilitation and reintegration. xxx (Italics
supplied in Sarcia.)159

On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict

with the Law, which reflected the same position.160

These developments notwithstanding, we find that the benefits of a suspended sentence can no
longer apply to appellant. The suspension of sentence lasts only until the child in conflict with the law
reaches the maximum age of twenty-one (21) years.161 Section 40162 of the law and Section 48163 of
the Rule are clear on the matter. Unfortunately, appellant is now twenty-five (25) years old.

Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of
a child in conflict with the law should extend even to one who has exceeded the age limit of twenty-
one (21) years, so long as he/she committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and reintegration in accordance with the Act
in order that he/she is given the chance to live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of the promulgation of the
judgment of conviction is not material. What matters is that the offender committed the offense when
he/she was still of tender age.

Thus, appellant may be confined in an agricultural camp or any other training facility in accordance
with Sec. 51 of Republic Act No. 9344.164

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to effect
appellant’s confinement in an agricultrual camp or other training facility.

WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No.
00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape
is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant is
reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. The case is
hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.

SO ORDERED.

G.R. No. 169895               March 23, 2011

ISAGANI M. YAMBOT, LETTY JIMENEZ-MAGSANOC, JOSE MA. D. NOLASCO, ARTEMIO T.

ENGRACIA, JR. and VOLT CONTRERAS, Petitioners,
vs.
Hon. ARTEMIO TUQUERO in his capacity as Secretary of Justice, and ESCOLASTICO U.
CRUZ, JR., Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

This is a Petition for Review on Certiorari (under Rule 45 of the Rules of Court), assailing the
Decision1 of the Court of Appeals in CA-G.R. SP No. 62479 dated July 8, 2005 and its
Resolution2 dated September 29, 2005 in the same case.

The antecedents of this case are as follows:

On May 26, 1996, the Philippine Daily Inquirer (PDI) printed an article3 headlined Judge mauled me,
says court employee, carrying the by-line of petitioner Volt Contreras (Contreras). The article
reported an alleged mauling incident that took place between respondent Makati Regional Trial
Court (RTC) Judge Escolastico U. Cruz, Jr. (Judge Cruz) and Robert Mendoza (Mendoza), an
administrative officer assigned at the Office of the Clerk of Court of the Makati RTC.

Reckoning the article to be false and malicious, Judge Cruz initiated a Complaint4 for libel with the
City Prosecutor of Makati. In particular, Judge Cruz protested the following sentence in said article:

According to Mendoza, Cruz still has a pending case of sexual harassment filed with the Supreme
Court by Fiscal Maria Lourdes Garcia, also of the Makati RTC.5

Rebutting the statement, Judge Cruz alleged that there was no suit for sexual harassment pending
against him before this Court, and attached a certification dated July 16, 19966 of the Deputy Court
Administrator attesting to the pendency of only two administrative cases against him, namely RTJ-
96-1352 (Re: Mauling incident) and OCA IPI No. 96-185-RTJ (For gross ignorance of the law,
Partiality and Rendering an unjust judgment).

For his part, Contreras filed a counter-affidavit7 with the Makati City Prosecutor’s Office, explaining
the supposed factual basis for his article. It appeared that Atty. Maria Lourdes Paredes-Garcia
(Paredes-Garcia) had filed with this Court a Petition for Review to question a contempt order issued
against her by Judge Cruz. In connection with said Petition for Review, which was docketed as G.R.
No. 120654, Paredes-Garcia filed a Reply dated February 5, 1996 asking this Court to look deeply
into allegations of one Enrina Talag-Pascual (Talag-Pascual) that Judge Cruz made sexual
advances to her while she was a member of his staff at the Metropolitan Trial Court (MeTC) of
Manila. Paredes-Garcia claimed that she suffered similar indignities from Judge Cruz, and prayed
that her Petition be treated as an administrative case against said judge. Paredes-Garcia appended
a January 29, 1996 affidavit executed by Talag-Pascual to purportedly show the proclivity of Judge
Cruz for seducing women who became objects of his fancy. Contreras claimed that the statement in
his news article constituted a fair and true report of a matter of grave public interest as it involved the
conduct of a regional trial court judge.

In the meantime, on September 11, 1996, this Court rendered its Decision8 on the Petition of
Paredes-Garcia, granting her prayer to set aside Judge Cruz’s contempt order. The prayer in
Paredes-Garcia’s Reply that the Petition be treated as an administrative case against Judge Cruz
was not passed upon by the Court.

Subsequently, the City Prosecutor of Makati approved a Resolution9 finding probable cause against
Mendoza and six PDI officers and employees, namely: Contreras, Isagani Yambot, Letty Jimenez-
Magsanoc, Jose Ma. Nolasco, Artemio Engracia, Jr. and Carlos Hidalgo (the PDI Staff). On
February 21, 1997, the City Prosecutor filed an Information10 for libel against Mendoza and the PDI
Staff. Thereafter, the PDI Staff filed a Motion with the trial court for the deferment of the arraignment
to allow them to appeal to the Secretary of the Department of Justice.

On March 3, 2000, then Secretary of Justice Artemio Tuquero (Secretary Tuquero) dismissed the
PDI Staff’s Petition for Review of the Resolution of the City Prosecutor.11 Secretary Tuquero rejected
the argument of therein petitioners that the complaint should be dismissed on the ground of lack of
supporting affidavits from third persons. According to Secretary Tuquero, affidavits of third persons
are not essential for a libel complaint to prosper, as it is enough that the person defamed can be
identified.12 As regards the factual basis presented by Contreras, Secretary Tuquero noted it cannot
be said that Judge Cruz was indeed facing a sexual harassment suit in this Court.13 The Motion for
Reconsideration14 was denied in a Resolution15 dated October 12, 2000.

The PDI Staff with the exception of Hidalgo (herein petitioners) filed a Petition for Certiorari with the
Court of Appeals to challenge the aforementioned Resolutions of Secretary Tuquero. The Petition
was docketed as CA-G.R. SP No. 62479.

On July 8, 2005, the Court of Appeals rendered the assailed Decision dismissing the Petition for
Certiorari. Applying our ruling in Advincula v. Court of Appeals,16 the appellate court held that since
the Information had already been filed with the trial court, the primary determination of probable
cause is now with the latter.17 The Court of Appeals denied the ensuing Motion for Reconsideration
in the assailed Resolution dated September 29, 2005.

Hence, petitioners filed this Petition for Review with this Court, raising the following issues:

(A) WHETHER OR NOT A CRIMINAL COMPLAINT FOR LIBEL IS FATALLY DEFECTIVE

OR DEFICIENT IF IT IS NOT SUPPORTED BY AFFIDAVITS OF THIRD PERSONS.

(B) WHETHER OR NOT A NEWS REPORT ON THE ACTUATIONS OF A PUBLIC

OFFICIAL IS PRIVILEGED IN NATURE AND HENCE, THE PRESUMPTION OF MALICE IS
DESTROYED.

(C) WHETHER OR NOT THE PRIVILEGED NATURE OF A PUBLICATION IS A GROUND

FOR DISMISSAL AND THAT THE RESPONDENT NEED NOT WAIT UNTIL TRIAL TO
RAISE THE ISSUE OF PRIVILEGE.

(D) WHETHER OR NOT THE PUBLISHER AND EDITORS ARE JOINTLY LIABLE WITH
THE AUTHOR OF THE ALLEGEDLY OFFENDING NEWS REPORT EVEN IF THEY DID
NOT PARTICIPATE IN THE WRITING AND EDITING OF SAID NEWS REPORT.18

In raising the above issues, petitioners essentially questioned the Makati City Prosecutors Office’s
finding of probable cause to charge them with libel, as affirmed by the Secretary of Justice. As stated
above, the Court of Appeals dismissed the Petition for Certiorari by applying the procedural doctrine
laid down in Advincula.

Similar to the present case, in Advincula, respondents Amando and Isagani Ocampo filed a Petition
for Certiorari and Prohibition with the Court of Appeals questioning the Resolution of the Secretary of
Justice which had earlier led to the filing of Informations against them in court. The Court of Appeals
granted the Petition and set aside the Resolution of the Secretary of Justice. In reversing the
Decision of the Court of Appeals, we applied the rule that certiorari, being an extraordinary writ,
cannot be resorted to when other remedies are available. The Court observed that respondents had
other remedies available to them, such as the filing of a Motion to Quash the Information under Rule
117 of the Rules of Court, or allowing the trial to proceed where they could either file a demurrer to
evidence or present their evidence to disprove the charges against them.19

At the outset, it should be made clear that the Court is not abandoning the foregoing ruling in
Advincula. However, Advincula cannot be read to completely disallow the institution of certiorari
proceedings against the Secretary of Justice’s determination of probable cause when the criminal
information has already been filed in court. Under exceptional circumstances, a petition
for certiorari assailing the resolution of the Secretary of Justice (involving an appeal of the
prosecutor’s ruling on probable cause) may be allowed, notwithstanding the filing of an information
with the trial court.
In Ching v. Secretary of Justice,20 petitioner filed a Petition for Certiorari with the Court of Appeals
assailing the Resolution of the Secretary of Justice finding probable cause for violation of
Presidential Decree No. 115, otherwise known as the Trust Receipts Law. Conformably with said
Resolution, the City Prosecutor filed 13 Informations against petitioner. Upon denial of the Motion for
Reconsideration, petitioner filed a petition for certiorari, prohibition and mandamus with the Court of
Appeals assailing the Resolution of the Secretary of Justice. While this Court ultimately affirmed the
Court of Appeals’ ruling denying the Petition for Certiorari, the discussion affirming the resort to said
extraordinary writ is enlightening:

In Mendoza-Arce v. Office of the Ombudsman (Visayas), this Court held that the acts of a quasi-
judicial officer may be assailed by the aggrieved party via a petition for certiorari and enjoined (a)
when necessary to afford adequate protection to the constitutional rights of the accused; (b) when
necessary for the orderly administration of justice; (c) when the acts of the officer are without or in
excess of authority; (d) where the charges are manifestly false and motivated by the lust for
vengeance; and (e) when there is clearly no prima facie case against the accused. The Court also
declared that, if the officer conducting a preliminary investigation (in that case, the Office of the
Ombudsman) acts without or in excess of his authority and resolves to file an Information despite the
absence of probable cause, such act may be nullified by a writ of certiorari.

Indeed, under Section 4, Rule 112 of the 2000 Rules of Criminal Procedure, the Information shall be
prepared by the Investigating Prosecutor against the respondent only if he or she finds probable
cause to hold such respondent for trial. The Investigating Prosecutor acts without or in excess of his
authority under the Rule if the Information is filed against the respondent despite absence of
evidence showing probable cause therefor. If the Secretary of Justice reverses the Resolution of the
Investigating Prosecutor who found no probable cause to hold the respondent for trial, and orders
such prosecutor to file the Information despite the absence of probable cause, the Secretary of
Justice acts contrary to law, without authority and/or in excess of authority. Such resolution may
likewise be nullified in a petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure.21

In light of the particular factual context of the present controversy, we find that the need to uphold
the constitutionally guaranteed freedom of the press and crystal clear absence of a prima facie case
against the PDI staff justify the resort to the extraordinary writ of certiorari.

Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the
dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is
dead.22 Consequently, the following elements constitute libel: (a) imputation of a discreditable act or
condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d)
existence of malice.23 The glaring absence of maliciousness in the assailed portion of the news
article subject of this case negates the existence of probable cause that libel has been committed by
the PDI staff.

As previously stated, Judge Cruz initiated the complaint for libel, asserting the falsity and
maliciousness of the statement in a news report that "(a)ccording to Mendoza, Cruz still has a
pending case of sexual harassment filed with the Supreme Court by Fiscal Maria Lourdes Garcia,
also of the Makati RTC."24 It can be easily discerned that the article merely reported the statement of
Mendoza that there was allegedly a pending case of sexual harassment against Judge Cruz and that
said article did not report the existence of the alleged sexual harassment suit as a confirmed fact.
Judge Cruz never alleged, much less proved, that Mendoza did not utter such statement.
Nevertheless, Judge Cruz concludes that there was malice on the part of the PDI Staff by asserting
that they did not check the facts. He claimed that the report got its facts wrong, pointing to a
certification from the Deputy Court Administrator attesting to the pendency of only two administrative
cases against him, both of which bear captions not mentioning sexual harassment.

A newspaper should not be held to account to a point of suppression for honest mistakes, or
imperfection in the choice of words.25 While, indeed, the allegation of inappropriate sexual advances
in an appeal of a contempt ruling does not turn such case into one for sexual harassment, we agree
with petitioners’ proposition that the subject news article’s author, not having any legal training,
cannot be expected to make the fine distinction between a sexual harassment suit and a suit where
there was an allegation of sexual harassment. In fact, three other newspapers reporting the same
incident committed the same mistake: the Manila Times article was headlined "Judge in sex case
now in physical injury rap";26 the Philippine Star article described Judge Cruz as "(a) Makati judge
who was previously charged with sexual harassment by a lady prosecutor";27 and the Manila
Standard Article referred to him as "(a) Makati judge who was reportedly charged with sexual
harassment by a lady fiscal."28

The questioned portion of the news article, while unfortunately not quite accurate, on its own, is
insufficient to establish the element of malice in libel cases. We have held that malice connotes ill
will or spite and speaks not in response to duty but merely to injure the reputation of the person
defamed, and implies an intention to do ulterior and unjustifiable harm.29 Malice is present when it is
shown that the author of the libelous remarks made such remarks with knowledge that it was false or
with reckless disregard as to the truth or falsity thereof.30

The lack of malice on the part of the PDI Staff in the quoting of Mendoza’s allegation of a sexual
harassment suit is furthermore patent in the tenor of the article: it was a straightforward narration,
without any comment from the reporter, of the alleged mauling incident involving Judge Cruz. The
subject article was, in fact, replete with other allegations by Mendoza of purported misconduct on the
part of Judge Cruz. Except for the above-quoted statement, Judge Cruz did not find the other
assertions by Mendoza as reported by the PDI article to be libelous:

At around 2 p.m., Mendoza said, an employee at Cruz’s court fetched him to the judge’s chamber. 1âwphi1

He was walking along the corridor when Cruz looked out, saw him, and yelled, "Mendoza, halika nga
rito (come here)."

"He dragged me to his chamber and locked the door. Tatlo kami doon, kasama ang sheriff niya na si
Nory Santos," Mendoza said.

Inside, Mendoza said Cruz began taunting him, asking him, "Matigas ba ang dibdib mo, ha? (Do you
have a strong chest?)" Mendoza said, (h)e was made to sit in a guest’s chair in front of Cruz’s desk.
He recalled seeing placed on top of a side table a .99mm and a .45 caliber pistol which he presumed
to belong to the judge.

While standing, Mendoza said the judge began punching him, at the same time subjecting him to
verbal abuse. The first punch was at the left side of his chest, the second at the right. The third was
at his left knee, then last was at the right knee, Mendoza said.

His right knee was still swollen as of yesterday.

"Hinamon pa niya ako, square daw kami," he said. "At hindi daw niya ako titigilan at ipapatanggal pa
daw niya ako (He even dared me to a fight. He threatened me that he would not stop until I am fired
from my job)," Mendoza said.

"Kung anak pa daw niya ang nakalaban ko, babarilin na lang daw niya ako sa sentido at babayaran
na lang ako (He said if it was his son with whom I quarreled, he would have simply put a bullet to my
head and paid for my life)."31

In Borjal v. Court of Appeals,32 we held that "[a] newspaper especially one national in reach and
coverage, should be free to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another on criminal or civil
charges for libel, so long as the newspaper respects and keeps within the standards of morality and
civility prevailing within the general community."33 Like fair commentaries on matters of public
interest,34 fair reports on the same should thus be included under the protective mantle of privileged
communications, and should not be subjected to microscopic examination to discover grounds of
malice or falsity.35 The concept of privileged communication is implicit in the constitutionally protected
freedom of the press,36 which would be threatened when criminal suits are unscrupulously leveled by
persons wishing to silence the media on account of unfounded claims of inaccuracies in news
reports.

WHEREFORE, the instant Petition for Review on Certiorari is GRANTED. The Decision of the Court
of Appeals in CA-G.R. SP No. 62479 dated July 8, 2005 and its Resolution dated September 29,
2005 are hereby REVERSED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 185833               October 12, 2011

ROBERT TAGUINOD, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:
For this Court's consideration is the petition for review1 dated February 5, 2009 of petitioner Robert
Taguinod seeking to reverse the Decision2 of the Court of Appeals (CA) dated September 8, 2008
and its Resolution3 dated December 19, 2008 affirming the Decisions of the Regional Trial Court of
Makati City (RTC)4 and the Metropolitan Trial Court of Makati City (MeTC)5 dated September 6, 2007
and November 8, 2006, respectively.

The following are the antecedent facts:

This case started with a single incident on May 26, 2002 at the parking area of the Rockwell
Powerplant Mall. Pedro Ang (private complainant) was driving his Honda CRV (CRV) from the 3rd
basement parking, while Robert Taguinod (petitioner) was driving his Suzuki Vitara (Vitara) from the
2nd basement parking. When they were about to queue at the corner to pay the parking fees, the
respective vehicles were edging each other. The CRV was ahead of the queue, but the Vitara tried
to overtake, which resulted the touching of their side view mirrors. The side view mirror of the Vitara
was pushed backward and naturally, the side view mirror of the CRV was pushed forward. This
prompted the private complainant's wife and daughter, namely, Susan and Mary Ann, respectively,
to alight from the CRV and confront the petitioner. Petitioner appeared to be hostile, hence, the
private complainant instructed his wife and daughter to go back to the CRV. While they were
returning to the car, petitioner accelerated the Vitara and moved backward as if to hit them. The
CRV, having been overtaken by the Vitara, took another lane. Private complainant was able to pay
the parking fee at the booth ahead of petitioner. When the CRV was at the upward ramp leading to
the exit, the Vitara bumped the CRV's rear portion and pushed the CRV until it hit the stainless steel
railing located at the exit portion of the ramp.

As a result of the collision, the CRV sustained damage at the back bumper spare tires and the front
bumper, the repair of which amounted to ₱57,464.66. The insurance company shouldered the said
amount, but the private complainant paid ₱18,191.66 as his participation. On the other hand, the
Vitara sustained damage on the right side of its bumper.

Thereafter, an Information6 was filed in the MeTC of Makati City against petitioner for the crime of
Malicious Mischief as defined in and penalized under Article 3277 of the Revised Penal Code (RPC).
The Information reads as follows:

That on or about the 26th day of May, 2002, in the City of Makati, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to cause
damage, and motivated by hate and revenge and other evil motives, did then and there willfully,
unlawfully and feloniously bump the rear portion of a Honda CRV car bearing Plate No. APS-222
driven by Pedro N. Ang, thus, causing damage thereon in the amount of ₱200.00.

CONTRARY TO LAW.

Petitioner pleaded Not Guilty during the arraignment on March 10, 2003. Consequently, the trial on
the merits ensued. The prosecution presented the testimony of private complainant. The defense, on
the other hand, presented the testimonies of Mary Susan Lim Taguinod, the wife of petitioner, Jojet
N. San Miguel, Jason H. Lazo and Engr. Jules Ronquillo.

Afterwards, the MeTC, in its Decision dated November 8, 2006, found petitioner guilty of the crime
charged in the Information, the dispositive portion of which, reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused ROBERT
TAGUINOD y AYSON GUILTY of Malicious Mischief penalized under Article 329 of the Revised
Penal Code, and sentencing accused to FOUR (4) MONTHS imprisonment.

Accused Robert Taguinod y Ayson is likewise ordered to pay complainant Pedro Ang the amount of
₱18,191.66, representing complainant's participation in the insurance liability on the Honda CRV, the
amount of ₱50,000.00 as moral damages, and the amount of ₱25,000.00 as attorney's fees; and to
pay the costs.

SO ORDERED.8

The case was appealed to the RTC of Makati City, which rendered its Decision dated September 6,
2007, affirming the decision of the MeTC, disposing the appealed case as follows:

WHEREFORE, premises considered, the Decision dated 8 November 2006 is AFFIRMED in all
respects.

SO ORDERED.9
Undaunted, petitioner filed a petition for review with the CA, praying for the reversal of the decision
of the RTC. The CA partly granted the petition in its Decision dated September 8, 2008, ruling that:

WHEREFORE, in view of the foregoing premises, the petition for review filed in this case is hereby
PARTLY GRANTED. The assailed decision dated September 6, 2007 of Branch 143 of the Regional
Trial Court in Makati City in Criminal Case No. 07-657 is hereby MODIFIED as follows:

1. The petitioner is penalized to suffer the penalty of 30 days imprisonment;

2. The award of moral damages is reduced to ₱20,000.00; and

3. The award of attorney's fee is reduced to ₱10,000.00.

SO ORDERED.10

Petitioner filed with this Court a petition for review on certiorari dated February 5, 2009. On March
16, 2009, this Court denied11 the said petition. However, after petitioner filed a motion for
reconsideration12 dated May 14, 2009, this Court reinstated13 the present petition and required the
Office of the Solicitor General to file its Comment.14

The grounds relied upon are the following:

A. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR

IN UPHOLDING PETITIONER'S CONVICTION.

B. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR

IN AWARDING MORAL DAMAGES AND ATTORNEY'S FEES TO PRIVATE
COMPLAINANT.15

This Court finds the petition partly meritorious.

The first argument of the petitioner centers on the issue of credibility of the witnesses and the weight
of the evidence presented. Petitioner insists that between the witness presented by the prosecution
and the witnesses presented by the defense, the latter should have been appreciated, because the
lone testimony of the witness for the prosecution was self-serving. He also puts into query the
admissibility and authenticity of some of the pieces of evidence presented by the prosecution.

Obviously, the first issue raised by petitioner is purely factual in nature. It is well entrenched in this
jurisdiction that factual findings of the trial court on the credibility of witnesses and their testimonies
are entitled to the highest respect and will not be disturbed on appeal in the absence of any clear
showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and
substance that would have affected the result of the case.16 This doctrine is premised on the
undisputed fact that, since the trial court had the best opportunity to observe the demeanor of the
witnesses while on the stand, it was in a position to discern whether or not they were telling the
truth.17 Moreover, the testimony of a witness must be considered and calibrated in its entirety and not
by truncated portions thereof or isolated passages therein.18

It is apparent in this present case that both the RTC and the CA accorded respect to the findings of
the MeTC; hence, this Court finds no reason to oppose the other two courts in the absence of any
clear and valid circumstance that would merit a review of the MeTC's assessment as to the
credibility of the witnesses and their testimonies. Petitioner harps on his contention that the MeTC
was wrong in not finding the testimony of his own witness, Mary Susan Lim Taguinod, to be credible
enough. However, this Court finds the inconsistencies of said petitioner's witness to be more than
minor or trivial; thus, it does not, in any way, cast reasonable doubt. As correctly pointed out by the
MeTC:

Defense witness Mary Susan Lim Taguinod is wanting in credibility. Her recollection of the past
events is hazy as shown by her testimony on cross-examination. While she stated in her affidavit
that the Honda CRV's "left side view mirror hit our right side view mirror, causing our side view mirror
to fold" (par. 4, Exhibit "3"), she testified on cross-examination that the right side view mirror of the
Vitara did not fold and there was only a slight dent or scratch. She initially testified that she does not
recall having submitted her written version of the incident but ultimately admitted having executed an
affidavit. Also, while the Affidavit stated that Mary Susan Lim Taguinod personally appeared before
the Notary Public, on cross-examination, she admitted that she did not, and what she only did was to
sign the Affidavit in Quezon City and give it to her husband. Thus, her inaccurate recollection of the
past incident, as shown by her testimony on cross-examination, is in direct contrast with her Affidavit
which appears to be precise in its narration of the incident and its details. Such Affidavit, therefore,
deserves scant consideration as it was apparently prepared and narrated by another.
Thus, the Court finds that the prosecution has proven its case against the accused by proof beyond
reasonable doubt.19

What really governs this particular case is that the prosecution was able to prove the guilt of
petitioner beyond reasonable doubt. The elements of the crime of malicious mischief under Article
327 of the Revised Penal Code are:

(1) That the offender deliberately caused damage to the property of another;

(2) That such act does not constitute arson or other crimes involving destruction;

(3) That the act of damaging another's property be committed merely for the sake of
damaging it.20

In finding that all the above elements are present, the MeTC rightly ruled that:

The following were not disputed: that there was a collision between the side view mirrors of the two
(2) vehicles; that immediately thereafter, the wife and the daughter of the complainant alighted from
the CRV and confronted the accused; and, the complainant, in view of the hostile attitude of the
accused, summoned his wife and daughter to enter the CRV and while they were in the process of
doing so, the accused moved and accelerated his Vitara backward as if to hit them.

The incident involving the collision of the two side view mirrors is proof enough to establish
the existence of the element of "hate, revenge and other evil motive." Here, the accused
entertained hate, revenge and other evil motive because to his mind, he was wronged by the
complainant when the CRV overtook his Vitara while proceeding toward the booth to pay
their parking fee, as a consequence of which, their side view mirrors collided. On the same
occasion, the hood of his Vitara was also pounded, and he was badmouthed by the complainant's
wife and daughter when they alighted from the CRV to confront him for the collision of the side view
mirrors. These circumstances motivated the accused to push upward the ramp complainant's CRV
until it reached the steel railing of the exit ramp. The pushing of the CRV by the Vitara is
corroborated by the Incident Report dated May 26, 2002 prepared by SO Robert Cambre, Shift-In-
Charge of the Power Plant Mall, as well as the Police Report. x x x21

The CA also accurately observed that the elements of the crime of malicious mischief are not
wanting in this case, thus:

Contrary to the contention of the petitioner, the evidence for the prosecution had proven beyond
reasonable doubt the existence of the foregoing elements. First, the hitting of the back portion of
the CRV by the petitioner was clearly deliberate as indicated by the evidence on record. The
version of the private complainant that the petitioner chased him and that the Vitara pushed the CRV
until it reached the stairway railing was more believable than the petitioner's version that it was
private complainant's CRV which moved backward and deliberately hit the Vitara considering the
steepness or angle of the elevation of the P2 exit ramp. It would be too risky and dangerous for the
private complainant and his family to move the CRV backward when it would be hard for him to see
his direction as well as to control his speed in view of the gravitational pull. Second, the act of
damaging the rear bumper of the CRV does not constitute arson or other crimes involving
destruction. Lastly, when the Vitara bumped the CRV, the petitioner was just giving vent to
his anger and hate as a result of a heated encounter between him and the private
complainant.

In sum, this Court finds that the evidence on record shows that the prosecution had proven the guilt
of the petitioner beyond reasonable doubt of the crime of malicious mischief. This adjudication is but
an affirmation of the finding of guilt of the petitioner by both the lower courts, the MeTC and the
RTC.22

Petitioner likewise raises the issue that the CA was wrong in awarding moral damages and
attorney's fees to the private complainant claiming that during the trial, the latter's entitlement to the
said monetary reliefs was not substantiated. This Court finds petitioner's claim, with regard to the
award of moral damages, unmeritorious. 1avvphi1

In Manuel v. People,23 this Court tackled in substance the concept of the award of moral damages,
thus:

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable
of pecuniary computation, moral damages may be recovered if they are the proximate result of the
defendant's wrongful act or omission. An award for moral damages requires the confluence of
the following conditions: first, there must be an injury, whether physical, mental or
psychological, clearly sustained by the claimant; second, there must be culpable act or
omission factually established; third, the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the claimant; and fourth, the award of damages is
predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.24

It is true that the private complainant is entitled to the award of moral damages under Article
222025 of the New Civil Code because the injury contemplated by the law which merits the said
award was clearly established. Private complainant testified that he felt bad26 and lost sleep.27 The
said testimony is substantial to prove the moral injury suffered by the private complainant for it is
only him who can personally approximate the emotional suffering he experienced. For the court to
arrive upon a judicious approximation of emotional or moral injury, competent and substantial proof
of the suffering experienced must be laid before it.28 The same also applies with private
complainant's claim that his wife felt dizzy after the incident and had to be taken to the hospital.29

However, anent the award of attorney's fees, the same was not established. In German Marine
Agencies, Inc. v. NLRC,30 this Court held that there must always be a factual basis for the award of
attorney’s fees. This present case does not contain any valid and factual reason for such award.

WHEREFORE, the petition for review dated February 5, 2009 of petitioner Robert Taguinod is
DENIED. The Decision of the Court of Appeals dated September 8, 2008 and its Resolution dated
December 19, 2008 are hereby AFFIRMED with the MODIFICATION that the attorney’s fees
are OMITTED.

SO ORDERED.

G.R. No. 182551               July 27, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROSENDO REBUCAN y LAMSIN, Accused-Appellant.

DECISION

LEONARDO–DE CASTRO, J.:

Assailed before this Court is the Decision1 dated August 21, 2007 of the Court of Appeals in CA-G.R.
CR.-H.C. No. 00282, which modified the Decision2 dated November 3, 2003 of the Regional Trial
Court (RTC) of Carigara, Leyte, Branch 13, in Criminal Case No. 4232. In the Decision of the Court
of Appeals, the accused-appellant Rosendo Rebucan y Lamsin was adjudged guilty beyond
reasonable doubt of two (2) separate counts of murder and was sentenced to suffer the penalty of
reclusion perpetua for each count.

On January 23, 2003, the accused-appellant was charged with the crime of double murder in an
Information, the accusatory portion of which reads:

That on or about the 6th day of November, 2002, in the Municipality of Carigara, Province of Leyte,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill, with treachery and evident premeditation and abuse of superior strength, did
then and there willfully, unlawfully and feloniously attack, assault and wound FELIPE LAGERA Y
OBERO, 65 years old and RANIL TAGPIS Y LAGERA, 1 year old, with the use of a long bolo
(sundang) which the accused had provided himself for the purpose, thereby inflicting upon Felipe
Lagera:

Hypovolemic shock, massive blood loss and multiple hacking wounds upon Ranil Tagpis:

Hypovolemic shock, massive blood loss and hacking wound, head[,] which wounds caused the
death of Felipe Lagera y Obera and Ranil Tagpis y Lagera, immediately thereafter.3

When arraigned on February 10, 2003, the accused-appellant pleaded not guilty to the
charge.4 Trial, thereafter, ensued.

The prosecution presented as witnesses: (1) Dr. Ma. Bella V. Profetana, Municipal Health Officer of
Carigara, Leyte; (2) Carmela Tagpis, the 5-year-old granddaughter of the victim Felipe Lagera and
sister of the victim Ranil Tagpis, Jr.;5 (3) Adoracion Lagera, the wife of Felipe Lagera; and (4) Alma
Tagpis, the daughter of Felipe Lagera and mother of Ranil Tagpis, Jr.

Dr. Profetana testified that she conducted a post-mortem examination on the body of the victim
Felipe Lagera on November 6, 2002. She stated that Felipe sustained three hacking wounds, the
first of which was located at his right arm and was about 23x2x4 centimeters. The said wound was
fatal and could have been caused by a sharp instrument such as a bolo. The second wound was
located at Felipe’s "nose maxillary area,"6 measuring 13 centimeters, with an inverted C shape. The
second wound was not fatal and could have been caused by a sharp-edged instrument like a bolo.
The third wound was located at Felipe’s left arm and was measured as 9x1x1.5 centimeters. The
said wound was fatal and could have likewise been caused by a sharp-edged instrument. Dr.
Profetana concluded that the causes of death of Felipe were hypovolemic shock, massive blood loss
and multiple hacking wounds. She also conducted a post-mortem examination on the body of Ranil
Tagpis, Jr. on the aforementioned date. The results revealed that Ranil sustained a hacking wound
at the "fronto-temporal area"7 with a skull fracture. In the case of Ranil, the cause of death was
"hypovolemic shock secondary to massive blood loss secondary to [the] hacking wound to the
head."8 The instrument that was most likely used was sharp-edged like a bolo.9

Carmela Tagpis testified as an eyewitness to the incident in question. She pointed to the accused-
appellant as the "Bata Endong"10 (Uncle Endong) who hacked her grandfather and brother. She
stated that Ranil was hit in the forehead, while Felipe was hit on the face, the left shoulder and the
right shoulder. After Felipe was hacked by the accused-appellant, the former was still able to walk
outside of his house, to the direction of the coconut tree and thereafter fell to the ground. Carmela
said that she saw that a long bolo was used in the killing of Felipe and Ranil. She related that Felipe
also owned a bolo but he was not able to use the same when he was attacked. She was then inside
the house with Felipe and her two younger brothers, Jericho and Bitoy (Ranil). She was sitting about
four meters away when the hacking incident occurred indoors.11

On cross-examination, Carmela stated that at the time of the incident, she was playing with a toy
camera inside the house and she was situated beside a chicken cage, near a bench. Felipe was
also there near the bench and he was carrying Ranil in his right arm. When asked whether the
accused-appellant came inside the house in a sudden manner, Carmela answered in the affirmative.
She insisted that Ranil was indeed carried by Felipe when the accused-appellant entered the house.
She said that no fight or altercation occurred between Felipe and the accused-appellant. After Felipe
was hacked, he immediately ran outside of the house. Carmela and Jericho then ran to the back of
the house.12

Adoracion Lagera testified that at 4:00 p.m. on November 6, 2002, she was at the house of a certain
Justiniano Rance. After arriving there, she was fetched by a little boy who told her to go home
because Felipe had been hacked. She ran towards the direction of her house. When she got there,
she saw the lifeless body of Felipe sprawled on the ground. She then went inside the house and
found her daughter, Alma Tagpis, cuddling the body of Ranil whose head was wounded. She told
Alma to look for a motor vehicle to bring the child to the hospital. She also found out that the other
two children, Carmela and Jericho, hid when they saw Felipe being hacked. When she asked them
who went to their house, Carmela told her that it was the accused-appellant who entered their house
and hacked the victims.13

Alma Tagpis testified that at about 4:00 p.m. on November 6, 2002, she was in Brgy. Sogod, having
their palay (unhusked rice grain) milled. Shortly thereafter, she went home and proceeded to the
house of her father, Felipe, where she left her children. She then met a person looking for her
mother who was about to tell the latter that Felipe was hacked. When she rushed to Felipe’s house,
she saw him lying in the grassy place, wounded and motionless. She asked Felipe who hacked him,
but he was not able to answer anymore. She went inside the house and saw blood on the floor and
the feet of her son Ranil. Thinking that the killer was still inside, she went to the back of the house
and pulled a slot of board on the wall so she could get inside. Upon seeing the body of Ranil, she
took him and ran towards the road. She was able to bring Ranil to the hospital, but the doctor
already pronounced him dead. Her other two children, Carmela and Jericho, soon arrived at the
hospital with the police. When she asked them who killed Felipe, Carmela answered that it was the
accused-appellant.14

Thereafter, the prosecution formally offered the following documentary evidence, to wit: (1) Exhibit A
– the Post-mortem Examination Report on Felipe;15 (2) Exhibit B – the sketch of the human anatomy
indicating the wounds sustained by Felipe;16 (3) Exhibit C – the Certificate of Death of Felipe;17 (4)
Exhibit D – the Post-mortem Examination Report on Ranil;18 (5) Exhibit E – the sketch of the human
anatomy indicating the wounds sustained by Ranil;19 and (6) Exhibit F – the Certificate of Death of
Ranil.20

The defense, on the other hand, presented the following witnesses, namely: (1) Raymond Rance,
the stepson of the accused-appellant; (2) Renerio Arminal,21 the barangay chairperson of Brgy.
Canlampay, Carigara, Leyte; (3) Arnulfo Alberca, a member of the Philippine National Police (PNP)
stationed at Carigara, Leyte; and (4) the accused-appellant Rosendo Rebucan y Lamsin.

Raymond Rance testified that his mother’s name is Marites Rance. The accused-appellant is not his
biological father but the former helped in providing for his basic needs. He narrated that on the night
of July 18, 2002, he saw Felipe Lagera inside their house. Felipe placed himself on top of
Raymond’s mother, who was lying down. Raymond and his younger sister, Enda, were then
sleeping beside their mother and they were awakened. His mother kept pushing Felipe away and
she eventually succeeded in driving him out. In the evening of July 20, 2002, at about 11:00 p.m.,
Raymond recounted that he saw Felipe’s son, Artemio alias Timboy, inside their house. Timboy was
able to go upstairs and kept trying to place himself on top of Raymond’s mother. The latter got mad
and pushed Timboy away. She even pushed him down the stairs. The accused-appellant was
working in Manila when the aforesaid incidents happened. Raymond said that his mother thereafter
left for Manila. Subsequently, he saw the accused-appellant at the house of a certain Bernie, several
days after the accused-appellant arrived in Leyte. He told the accused-appellant about the incidents
involving Felipe and Timboy. On November 6, 2002, Raymond and the accused were already living
in the same house. On the said date, the accused-appellant left their house after they had lunch and
he told Raymond that he was going to call the latter’s mother. Raymond testified that the accused-
appellant is a good man and was supportive of his family. He also stated that the accused-appellant
seldom drank liquor and even if he did get drunk, he did not cause any trouble.22

Renerio Arminal testified that on November 6, 2002, the accused-appellant surrendered to him. The
latter came to him alone and told him that he (the accused-appellant) fought with Felipe Lagera.
Arminal then ordered the human rights action officer, Ricky Irlandez, and the chief tanod, Pedro
Oledan, to bring the accused-appellant to the police station. Afterwards, the police officers came to
his place and he accompanied them to the house of Felipe.23

Arnulfo Alberca was likewise called upon to the witness stand to prove that the voluntary surrender
of the accused-appellant was entered into the records of the police blotter. He was asked to read in
open court the Police Blotter Entry No. 5885 dated November 6, 2002, which recorded the fact of
voluntary surrender of the accused-appellant. His testimony was no longer presented, however,
since the prosecution already admitted the contents of the blotter.24

The accused-appellant testified that he arrived in Carigara, Leyte from Manila on August 15, 2002.
He went to the house of his elder brother, Hilario, to look for his children. There, he learned that his
wife went to Manila and his brother was taking care of his two children and his stepson, Raymond.
On November 2, 2002, he saw Raymond at the place of his friend, Bernie Donaldo. He asked
Raymond why the latter’s mother went to Manila and he was told that, while he was still in Manila,
Felipe and Timboy Lagera went to their house and tried to place themselves on top of his wife. He
then said that he harbored ill feelings towards the said men but he was able to control the same for
the sake of his children. On November 6, 2002, at about 2:00 p.m., he went to the house of
barangay chairperson Arminal to place a call to his wife who was in Manila. He was carrying a bolo
at that time since he was using the same to cut cassava stems in his farm. When he talked to his
wife, she confirmed that she was sexually molested by Felipe and Timboy. Thereafter, as the
accused-appellant proceeded to go home, it rained heavily so he first sought shelter at the place of
his friend, Enok. The latter was drinking gin and he was offered a drink. After staying there and
drinking for half an hour, the accused-appellant decided to go home. Afterwards, he remembered
that he had to buy kerosene so he went to the store of Felipe Lagera.25

The accused-appellant further testified that when he reached the house of Felipe, the latter was
feeding chickens. When Felipe asked him what was his business in going there, he confronted
Felipe about the alleged sexual abuse of his wife. Felipe allegedly claimed that the accused-
appellant had a bad purpose for being there and that the latter wanted to start a fight. Accused-
appellant denied the accusation and responded that Felipe should not get angry, as it was he
(Felipe) who committed a wrong against him and his wife. Felipe allegedly got mad and hurled the
cover of a chicken cage at him, but he was able to parry it with his hand. The accused-appellant then
drew his long bolo and hacked Felipe on the left side of the abdomen, as the latter was already
turning and about to run to the house. He also went inside the house since Felipe might get hold of a
weapon. When they were both inside and he was about to deliver a second hacking blow, Felipe
held up and used the child Ranil as a shield. As the second hacking blow was delivered suddenly,
he was not able to withdraw the same anymore such that the blow landed on Ranil. When he saw
that he hit the child, he got angry and delivered a third hacking blow on Felipe, which landed on the
right side of the latter’s neck. Thereafter, Felipe ran outside. He followed Felipe and hacked him
again, which blow hit the victim’s upper left arm. At that time, Felipe was already on the yard of his
house and was about to run towards the road. He then left and surrendered to the barangay
chairperson.26

During his cross-examination, the accused-appellant said that he was a bit tipsy when he proceeded
to Felipe’s house, but he was not drunk. When Felipe ran inside the house after the first hacking
blow, the accused-appellant stated that he had no intention to back out because he was thinking that
the victim might get a gun and use the same against him. The accused-appellant also asserted that
when he was about to deliver the second hacking blow, Felipe simultaneously took Ranil who was
sitting on a sack and used him to shield the blow. There was a long bolo nearby but Felipe was not
able to take hold of the same because the accused-appellant was chasing him. He admitted that he
had a plan to kill Felipe but claimed that when he arrived at the latter’s house on the day of the
attack, he had no intention to kill him.27
The defense also presented the following documentary evidence: (1) Exhibit 1 – the Police Blotter
Entry No. 5885 dated November 6, 2002;28 and (2) Exhibit 2 – the Civil Marriage Contract of
Rosendo Rebucan and Marites Rance.29

On November 3, 2003, the RTC rendered a decision, convicting the accused-appellant of the crime
of double murder. The trial court elucidated thus:

[In view of] the vivid portrayal of Raymond on how [the wife of the accused] was sexually abused by
the father and son Lagera, the accused hatched a decision to avenge his wife’s sexual molestation.
Days had passed, but this decision to kill Felipe did not wither, instead it became stronger, that on
the 6th of November 2002, he armed himself with a sharp long bolo known as "sundang" and went
to Brgy. Canlampay, Carigara, Leyte where the victim live[d]. Fueled by hatred and the spirit of
London gin after consuming one bottle with his compadre "Enok", he decided to execute his evil
deeds by going to the house of Felipe Lagera, in the guise of buying kerosene and once inside the
house hacked and wounded the victim, Felipe Lagera who was then holding in his arm his grandson,
one and half years 1 ½ old, Ramil Tagpis, Jr.

The manner by which the accused adopted in killing the victim, Felipe Lagera, and Ramil Tagpis, Jr.
was a premeditated decision and executed with treachery.

xxxx

There is credence to the testimony of the minor eyewitness Carmela Tagpis that the victim, Felipe
was holding in his arms her younger brother, Ramil Tagpis, Jr. inside his house, when the accused
entered, and without any warning or provocation coming from the victim, the accused immediately
delivered several hacking blows on the victim giving no regard to the innocent child in the arms of
Lagera. With this precarious situation, the victim who was unarmed has no opportunity to put up his
defense against the unlawful aggression of the accused, moreso, to retaliate. Moreover, what
defense could an innocent 1 1/2 years old Ramil Tagpis, Jr. put up against the armed and superior
strength of the accused, but to leave his fate to God.

The circumstance that the attack was sudden and unexpected and the victims, unarmed, were
caught totally unprepared to defend themselves qualifies the crime committed as murder. x x x.

After the incident, the accused Rosendo Rebucan immediately went to the house of Brgy. Chairman,
Renerio Arcenal at sitio Palali, Brgy. Canlampay, Carigara, Leyte, to surrender, because he killed
Felipe Lagera and Ramil Tagpis, Jr. The Brgy. Chairman instructed his Brgy. Human Rights Action
Officer, Ricky Irlandez and his Chief Tanod, Pedro Oledan to bring Rosendo to the Police Authorities
of Carigara, Leyte. This fact of voluntary surrender was corroborated by Police Officer Arnulfo
Alberca, who presented to Court the police blotter, under entry No. 5885, dated November 6, 2002,
of the PNP, Carigara, Leyte.

Clearly, the act of the accused in surrendering to the authorities showed his intent to submit himself
unconditionally to them, to save the authorities from trouble and expenses that they would incur for
his capture. For this reason, he has complied with the requisites of voluntary surrender as a
mitigating circumstance[.] x x x.

From the circumstances obtaining, the mitigating circumstances of admission and voluntary
surrender credited to the accused are not sufficient to offset the aggravating circumstances of: a)
evident premeditation; b) treachery (alevosia); c) dwelling – the crime was committed at the house of
the victim; d) intoxication – the accused fueled himself with the spirit of London gin prior to the
commission of the crime; e) abuse of superior strength; and f) minority, in so far as the child victim,
Ramil Tagpis, Jr. is concerned, pursuant to Article 63 of the Revised Penal Code as amended. x x x.

xxxx

In the mind of the Court, the prosecution has substantially established the quantum of evidence to
prove the guilt of the accused beyond reasonable doubt.30

The RTC, thus, decreed:

WHEREFORE, premises considered, pursuant to Sec. 6, Art. 248 of the Revised Penal Code, as
amended and further amended by R.A. 7659 (The Death Penalty Law), the Court found accused
ROSENDO REBUCAN y LAMSIN, GUILTY beyond reasonable doubt of the crime of DOUBLE
MURDER charged under the information and sentenced to suffer the maximum penalty of DEATH,
and to pay civil indemnity to the heirs of Felipe Lagera and Ramil Tagpis, Jr. in the amount of
Seventy-Five Thousand (₱75,000.00) Pesos for each victim and moral damages in the amount of
Seventy-Five Thousand (₱75,000.00) Pesos to each; and
Pay the Cost.31 (Emphases ours.)

The case was originally elevated to this Court on automatic review and the same was docketed as
G.R. No. 161706.32 The parties, thereafter, submitted their respective appeal briefs.33 In our
Resolution34 dated July 19, 2005, we ordered the transfer of the case to the Court of Appeals for
appropriate disposition, pursuant to our ruling in People v. Mateo.35 Before the appellate court, the
case was docketed as CA-G.R. CR.-H.C. No. 00282.

The Court of Appeals promulgated the assailed decision on August 21, 2007, modifying the
judgment of the RTC. The appellate court adopted the position of the Office of the Solicitor General
(OSG) that the felonious acts of the accused-appellant resulted in two separate crimes of murder as
the evidence of the prosecution failed to prove the existence of a complex crime of double murder.
The Court of Appeals subscribed to the findings of the RTC that the killing of Felipe Lagera was
attended by the aggravating circumstances of treachery and evident premeditation. With respect to
the ensuant mitigating circumstances, the Court of Appeals credited the circumstance of voluntary
surrender in favor of the accused-appellant, but rejected the appreciation of intoxication, immediate
vindication of a grave offense and voluntary confession. As for the death of Ranil, the appellate court
also ruled that the same was attended by the aggravating circumstance of treachery and the
mitigating circumstance of voluntary surrender. Thus, the Court of Appeals disposed of the case as
follows:

WHEREFORE, IN VIEW OF THE FOREGOING, the Decision appealed from is hereby MODIFIED.
As modified, accused-appellant is hereby adjudged guilty beyond reasonable doubt for two (2)
counts of murder for the deaths of Felipe Lagera and Ramil Tagpis, Jr., and is hereby sentenced to
suffer the penalty of reclusion perpetua for each count of murder he has committed.

The award of civil indemnity is reduced to ₱50,000.00 for each victim; the award of moral damages
is likewise reduced to ₱50,000.00 for each victim. Further, exemplary damages in the amount of
₱25,000.00 is awarded to the heirs of each victim.36

The accused-appellant filed a Notice of Appeal37 of the above decision. In a Resolution38 dated

February 6, 2008, the Court of Appeals ordered that the records of the case be forwarded to this
Court.

On June 18, 2008, we resolved to accept the appeal and required the parties to file their respective
supplemental briefs, if they so desire, within thirty days from notice.39 Thereafter, both parties
manifested that they were adopting the briefs they filed before the Court of Appeals and will no
longer file their respective supplemental briefs.40

The accused-appellant sets forth the following assignment of errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY BEYOND REASONABLE DOUBT FOR THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE THE MITIGATING

CIRCUMSTANCE OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE IN FAVOR OF
THE ACCUSED-APPELLANT.

III

THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE INTOXICATION AS

A MITIGATING CIRCUMSTANCE IN FAVOR OF THE ACCUSED-APPELLANT.

IV

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE AGGRAVATING

CIRCUMSTANCES OF DWELLING, ABUSE OF SUPERIOR STRENGTH AND
MINORITY.41

The accused-appellant admits to the killing of Felipe but denies that the crime was committed with
treachery and evident premeditation. He argues that there is doubt as to the presence of treachery
given that there was no eyewitness who categorically stated that the accused-appellant attacked the
victims suddenly, thereby depriving them of the means to defend themselves. He brushed aside the
testimony of Carmela Tagpis, insisting that she was not in a position to say that there was no
altercation between him and Felipe, which could have put the latter on guard. The prosecution
allegedly failed to prove that the accused-appellant intentionally waited for the time when Felipe
would be defenseless before initiating the attack. The fact that he voluntarily surrendered to the
barangay chairperson and the police and admitted the killings supposedly showed that it was not
intentional and he did not consciously adopt the method of attack upon the two victims. The
accused-appellant similarly rejects the finding of the RTC that there was evident premeditation on
his part since the prosecution failed to prove that he deliberately planned the killing of Felipe.

The accused-appellant maintains that at the time of the incident, he was still unable to control his
anger as he just recently discovered that his wife was sexually abused by Felipe and the latter’s son,
Timboy. He also avers that he was a bit intoxicated when the crime took place so that he was not in
total control of himself. He claims that he is not a habitual drinker and that he merely consumed the
alcohol prior to the incident in order to appease his friend. He likewise argues that the aggravating
circumstance of dwelling should not have been appreciated inasmuch as the same was not alleged
in the information. Moreover, the aggravating circumstance of abuse of superior strength cannot be
appreciated since he did not deliberately harm or attack Ranil Tagpis, Jr. and the death of the latter
was accidental. The accused-appellant prays that he should only be found guilty of the crime of
homicide with the mitigating circumstances of voluntary surrender, immediate vindication of a grave
offense and intoxication.

The appeal lacks merit.

Basic is the rule that in order to affirm the conviction of an accused person, the prosecution must
establish his guilt beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces absolute certainty. Only moral certainty is
required, or that degree of proof which produces conviction in an unprejudiced mind.42 Ultimately,
what the law simply requires is that any proof against the accused must survive the test of reason for
it is only when the conscience is satisfied that the perpetrator of the crime is the person on trial
should there be a judgment of conviction.43 A finding of guilt must rest on the strength of the
prosecution’s own evidence, not on the weakness or even absence of evidence for the defense.44

In the instant case, the evidence of the prosecution established the fact that the killings of Felipe and
Ranil were attended by treachery, thus qualifying the same to murder.

According to Article 24845 of the Revised Penal Code, as amended, any person who shall kill another
shall be guilty of murder if the same was committed with the attendant circumstance of treachery,
among other things, and that the situation does not fall within the provisions of Article 246.46 There is
treachery when the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.47 The essence
of treachery is a deliberate and sudden attack, offering an unarmed and unsuspecting victim no
chance to resist or to escape. There is treachery even if the attack is frontal if it is sudden and
unexpected, with the victims having no opportunity to repel it or defend themselves, for what is
decisive in treachery is that the execution of the attack made it impossible for the victims to defend
themselves or to retaliate.48

In the case at bar, the RTC gave more weight to the testimony of Carmela Tagpis in establishing the
presence of treachery in the manner with which the accused-appellant carried out the violent killings
of Felipe and Ranil. In this regard, we reiterate the established doctrine articulated in People v. De
Guzman49 that:

In the resolution of the factual issues, the court relies heavily on the trial court for its evaluation of the
witnesses and their credibility. Having the opportunity to observe them on the stand, the trial judge is
able to detect that sometimes thin line between fact and prevarication that will determine the guilt or
innocence of the accused. That line may not be discernible from a mere reading of the impersonal
record by the reviewing court. x x x.50

Moreover, we have oftentimes ruled that the Court will not interfere with the judgment of the trial
court in determining the credibility of witnesses unless there appears in the record some fact or
circumstance of weight and influence which has been overlooked or the significance of which has
been misinterpreted.51

Carmela testified as follows:

PROS. TORREVILLAS:

Q: Do you have a brother named Ranil Tagpis, Jr?

A: Yes sir.
Q: Where is he now?

A: He is dead.

Q: Do you know the circumstance of his death?

A: Yes sir.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Do you know also your grandfather Felipe Lagera, Jr?

A: Yes sir.

Q: Where is he now?

A: He is dead also.

Q: Why did he die?

A: Because he was hacked by Bata Endong.

Q: Is the person your Bata Endong here in the court room who hacked your brother and your
grandfather?

A: Yes sir.

COURT INTERPRETER:

Witness pointing to a person when asked of his name identified himself as Rosendo
Rebucan.

xxxx

Q: What instrument did the accused use in killing your [brother and] your grandfather?

A: Long bolo, sundang.

Q: Were you able to see that long bolo?

A: Yes sir.

xxxx

Q: Was your grandfather armed that time?

A: He has his own bolo but he placed it on the holder of the long bolo.

Q: Was that long bolo used by your grandfather?

A: No sir.

xxxx

Q: How far were you to the incident, when this hacking incident happened?

A: (witness indicating a distance of about 4 meters).

xxxx

COURT:

Cross.
 ATTY. DICO:

Q: You stated awhile ago that your brother Jericho, Bitoy [Ranil] and you and your papo
Felipe were at the house of your papo Felipe?

A: Yes sir.

Q: You mean to say that there were no other persons present in that house other than you
four (4)?

A: Yes sir.

xxxx

Q: So, you were playing that toy camera inside the room of your papo Felipe?

A: No sir, I was playing then at the side of the chicken cage.

Q: Is that chicken cage was inside or outside the house of your papo Felipe’s house?

A: Inside the house of my grandfather.

xxxx

Q: Was your brother Ranil carried by your grandfather Felipe?

A: Yes sir.

He was carried by his right arm.

Q: So, you mean to say that your uncle Endo went inside, it was so sudden?

A: Yes sir.

Q: Because it was sudden, you were not able to do anything, what did you do?

A: I then cried at that time.

xxxx

Q: But you are sure that when your uncle Endo entered as you said that your brother Ramil
was carried by your papo Felipe?

A: Yes sir.

Q: Did your uncle Endo and your papo Felipe fight or was there an altercation?

A: No sir.52

As can be gleaned from the above testimony, Carmela firmly and categorically pointed to the
accused-appellant as the person who entered the house of Felipe. She clearly stated that the attack
was not preceded by any fight or altercation between the accused-appellant and Felipe. Without any
provocation, the accused-appellant suddenly delivered fatal hacking blows to Felipe. The abruptness
of the unexpected assault rendered Felipe defenseless and deprived him of any opportunity to repel
the attack and retaliate. As Felipe was carrying his grandson Ranil, the child unfortunately suffered
the same fatal end as that of his grandfather. In the killing of Ranil, the trial court likewise correctly
appreciated the existence of treachery. The said circumstance may be properly considered, even
when the victim of the attack was not the one whom the defendant intended to kill, if it appears from
the evidence that neither of the two persons could in any manner put up defense against the attack
or become aware of it.53 Furthermore, the killing of a child is characterized by treachery even if the
manner of assault is not shown. For the weakness of the victim due to his tender years results in the
absence of any danger to the accused.54

Although the accused-appellant painted a contrasting picture on the matter, i.e., that the attack was
preceded by a fight between him and Felipe, the Court is less inclined to be persuaded by the
accused-appellant’s version of the events in question. Indeed, the Court has ruled that the testimony
of children of sound mind is "more correct and truthful than that of older persons" and that "children
of sound mind are likely to be more observant of incidents which take place within their view than
older persons, and their testimonies are likely more correct in detail than that of older persons."55 In
the instant case, Carmela was cross-examined by the defense counsel but she remained steadfast
and consistent in her statements. Thus, the Court fails to see any reason to distrust the testimony of
Carmela.

Incidentally, the testimony of the accused-appellant not only contradicts that of Carmela, but some
portions thereof do not also conform to the documentary evidence admitted by the trial court. The
testimony of Dr. Profetana and the sketch of the human anatomy of Felipe, which was marked as
Exhibit B for the prosecution, stated that Felipe sustained three hacking wounds that were found on
his right arm, at his "nose maxillary area"56 and on his left arm. On the other hand, the accused-
appellant testified that he delivered four hacking blows on Felipe, the three of which landed on the
left side of the victim’s abdomen, the right side of his neck and on his upper left arm. When
confronted on the said apparently conflicting statements, the accused-appellant did not offer any
explanation.57

Therefore, on the strength of the evidence of the prosecution, we sustain the ruling of the RTC and
the Court of Appeals that the circumstance of treachery qualified the killings of Felipe and Ranil to
murder.

The Court finds erroneous, however, the trial court’s and the Court of Appeals’ appreciation of the
aggravating circumstance of evident premeditation. For evident premeditation to aggravate a crime,
there must be proof, as clear as the evidence of the crime itself, of the following elements: (1) the
time when the offender determined to commit the crime; (2) an act manifestly indicating that he clung
to his determination; and (3) sufficient lapse of time, between determination and execution, to allow
himself to reflect upon the consequences of his act.58 It is not enough that evident premeditation is
suspected or surmised, but criminal intent must be evidenced by notorious outward acts evidencing
determination to commit the crime. In order to be considered an aggravation of the offense, the
circumstance must not merely be "premeditation"; it must be "evident premeditation."59 In the case at
bar, the evidence of the prosecution failed to establish any of the elements of evident premeditation
since the testimonies they presented pertained to the period of the actual commission of the crime
and the events that occurred thereafter. The prosecution failed to adduce any evidence that tended
to establish the exact moment when the accused-appellant devised a plan to kill Felipe, that the
latter clung to his determination to carry out the plan and that a sufficient time had lapsed before he
carried out his plan.

Likewise, the trial court erred in appreciating the aggravating circumstances of abuse of superior
strength, dwelling, minority and intoxication. When the circumstance of abuse of superior strength
concurs with treachery, the former is absorbed in the latter.60 On the other hand, dwelling, minority
and intoxication cannot be appreciated as aggravating circumstances in the instant case considering
that the same were not alleged and/or specified in the information that was filed on January 23,
2003. Under the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, a
generic aggravating circumstance will not be appreciated by the Court unless alleged in the
information. This requirement is laid down in Sections 8 and 9 of Rule 110, to wit:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall
be made to the section or subsection of the statute punishing it.

SEC. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment.

With regard to the conflicting rulings of the RTC and the Court of Appeals vis-à-vis the nature of
crimes committed, we agree with the appellate court that the accused-appellant should be held liable
for two (2) separate counts of murder, not the complex crime of double murder.

Article 48 of the Revised Penal Code provides that "[w]hen a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the same to be applied in its maximum period."
There are, thus, two kinds of complex crimes. The first is known as compound crime, or when a
single act constitutes two or more grave or less grave felonies. The second is known as complex
crime proper, or when an offense is a necessary means for committing the other.61

The Court finds that there is a paucity of evidence to prove that the instant case falls under any of
the two classes of complex crimes. The evidence of the prosecution failed to clearly and indubitably
establish the fact that Felipe and Ranil were killed by a single fatal hacking blow from the accused-
appellant. The eyewitness testimony of Carmela did not contain any detail as to this material fact. To
a greater degree, it was neither proven that the murder of Felipe was committed as a necessary
means for committing and/or facilitating the murder of Ranil and vice versa. As the factual milieu of
the case at bar excludes the application of Article 48 of the Revised Penal Code, the accused-
appellant should be made liable for two separate and distinct acts of murder. In the past, when two
crimes have been improperly designated as a complex crime, this Court has affirmed the conviction
of the accused for the component crimes separately instead of the complex crime.62

In the determination of the penalty to be imposed on the accused-appellant, we uphold the trial
court’s ruling that the mitigating circumstance of voluntary surrender should be appreciated. For
voluntary surrender to mitigate criminal liability, the following elements must concur: (1) the offender
has not been actually arrested; (2) the offender surrenders himself to a person in authority or to the
latter’s agent; and (3) the surrender is voluntary.63 To be sufficient, the surrender must be
spontaneous and made in a manner clearly indicating the intent of the accused to surrender
unconditionally, either because they acknowledge their guilt or wish to save the authorities the
trouble and the expense that will necessarily be incurred in searching for and capturing them.64 The
accused-appellant has duly established in this case that, after the attack on Felipe and Ranil, he
surrendered unconditionally to the barangay chairperson and to the police on his own volition and
before he was actually arrested. The prosecution also admitted this circumstance of voluntary
surrender during trial.

We reject, however, the accused-appellant’s contention that the trial court erred in failing to
appreciate the mitigating circumstances of intoxication and immediate vindication of a grave offense.

The third paragraph of Article 15 of the Revised Penal Code provides that the intoxication of the
offender shall be taken into consideration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance. The Court finds that the accused-appellant is not entitled to the mitigating
circumstance of intoxication since his own testimony failed to substantiate his claim of drunkenness
during the incident in question. During his cross-examination, the accused-appellant himself
positively stated that he was only a bit tipsy but not drunk when he proceeded to the house of
Felipe.65 He cannot, therefore, be allowed to make a contrary assertion on appeal and pray for the
mitigation of the crimes he committed on the basis thereof.

As regards the mitigating circumstance of immediate vindication of a grave offense, the same cannot
likewise be appreciated in the instant case. Article 13, paragraph 5 of the Revised Penal Code
requires that the act be "committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted
brothers or sisters, or relatives by affinity within the same degrees." The established rule is that there
can be no immediate vindication of a grave offense when the accused had sufficient time to recover
his equanimity.66 In the case at bar, the accused-appellant points to the alleged attempt of Felipe and
Timboy Lagera on the virtue of his wife as the grave offense for which he sought immediate
vindication. He testified that he learned of the same from his stepson, Raymond, on November 2,
2002. Four days thereafter, on November 6, 2002, the accused-appellant carried out the attack that
led to the deaths of Felipe and Ranil. To our mind, a period of four days was sufficient enough a time
within which the accused-appellant could have regained his composure and self-control. Thus, the
said mitigating circumstance cannot be credited in favor of the accused-appellant.

Article 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion perpetua to
death for the crime of murder. In this case, apart from the qualifying circumstance of treachery, the
prosecution failed to prove the existence of any other aggravating circumstance in both the murders
of Felipe and Ranil. On the other hand, as the presence of the lone mitigating circumstance of
voluntary surrender was properly established in both instances, Article 63, paragraph 3 of the
Revised Penal Code67 mandates that the proper penalty to be imposed on the accused-appellant is
reclusion perpetua for each of the two counts of murder.

Anent the award of damages, when death occurs due to a crime, the following may be recovered: (1)
civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral
damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in
proper cases.68

The RTC awarded in favor of the heirs of Felipe and Ranil the amounts of ₱75,000.00 as civil
indemnity and ₱75,000.00 as moral damages for each set of heirs. The Court of Appeals, on the
other hand, reduced the aforesaid amounts to ₱50,000.00 and further awarded the amount of
₱25,000.00 as exemplary damages to the heirs of the victim.

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than
the commission of the crime.69 Similarly, moral damages may be awarded by the court for the mental
anguish suffered by the heirs of the victim by reason of the latter’s death. The purpose for making
such an award is not to enrich the heirs of the victim but to compensate them for injuries to their
feelings.70 The award of exemplary damages, on the other hand, is provided under Articles 2229-
2230 of the Civil Code, viz:

Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.

Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed
when the crime was committed with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended party.

In People v. Dalisay,71 the Court clarified that "[b]eing corrective in nature, exemplary damages,
therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where
the circumstances of the case show the highly reprehensible or outrageous conduct of the offender.
In much the same way as Article 2230 prescribes an instance when exemplary damages may be
awarded, Article 2229, the main provision, lays down the very basis of the award."72

Thus, we affirm the Court of Appeals’ award of ₱50,000.00 as civil indemnity and ₱50,000.00 as
moral damages. The award of exemplary damages is, however, increased to ₱30,000.00 in
accordance with the prevailing jurisprudence. As held in People v. Combate,73 when the
circumstances surrounding the crime call for the imposition of reclusion perpetua only, the proper
amounts that should be awarded are ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages
and ₱30,000.00 as exemplary damages.

In lieu of actual or compensatory damages, the Court further orders the award of ₱25,000.00
temperate damages to the heirs of the two victims in this case. The award of ₱25,000.00 for
temperate damages in homicide or murder cases is proper when no evidence of burial and funeral
expenses is presented in the trial court. Under Article 2224 of the Civil Code, temperate damages
may be recovered, as it cannot be denied that the heirs of the victim suffered pecuniary loss,
although the exact amount was not proven.74

WHEREFORE, the Court hereby AFFIRMS with MODIFICATION the Decision dated August 21,
2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00282. The accused-appellant Rosendo
Rebucan y Lamsin is found GUILTY of two (2) counts of murder for the deaths of Felipe Lagera and
Ranil Tagpis, Jr. and is hereby sentenced to suffer the penalty of reclusion perpetua for each count.
The accused-appellant is further ordered to indemnify the respective heirs of the victims Felipe
Lagera and Ranil Tagpis, Jr. the amounts of ₱50,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱30,000.00 as exemplary damages and ₱25,000.00 as temperate damages for each
victim, plus legal interest on all damages awarded at the rate of 6% from the date of the finality of
this decision. No costs.

SO ORDERED.

G.R. No. 186412               September 7, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ORLITO VILLACORTA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No.
02550, which affirmed the Decision2 dated September 22, 2006 of the Regional Trial Court (RTC),
Branch 170, of Malabon, in Criminal Case No. 27039-MN, finding accused-appellant Orlito Villacorta
(Villacorta) guilty of murder, and sentencing him to suffer the penalty of reclusion perpetua and to
pay the heirs of Danilo Cruz (Cruz) the sum of ₱50,000.00 as civil indemnity, plus the costs of suit.

On June 21, 2002, an Information3 was filed against Villacorta charging him with the crime of murder,
as follows:

That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a sharpened bamboo stick, with intent
to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and stab with the said weapon one DANILO SALVADOR CRUZ, thereby inflicting
upon the victim serious wounds which caused his immediate death.
When arraigned on September 9, 2002, Villacorta pleaded not guilty.4

During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja) and Dr. Domingo
Belandres, Jr. (Dr. Belandres).

Mendeja narrated that on January 23, 2002, she was tending her sari-sari store located at C-4 Road,
Bagumbayan, Navotas. Both Cruz and Villacorta were regular customers at Mendeja’s store. At
around two o’clock in the morning, while Cruz was ordering bread at Mendeja’s store, Villacorta
suddenly appeared and, without uttering a word, stabbed Cruz on the left side of Cruz’s body using a
sharpened bamboo stick. The bamboo stick broke and was left in Cruz’s body. Immediately after the
stabbing incident, Villacorta fled. Mendeja gave chase but failed to catch Villacorta. When Mendeja
returned to her store, she saw her neighbor Aron removing the broken bamboo stick from Cruz’s
body.5 Mendeja and Aron then brought Cruz to Tondo Medical Center.6

Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital. When Cruz
sustained the stab wound on January 23, 2002, he was taken to the Tondo Medical Center, where
he was treated as an out-patient. Cruz was only brought to the San Lazaro Hospital on February 14,
2002, where he died the following day, on February 15, 2002. While admitting that he did not
personally treat Cruz, Dr. Belandres was able to determine, using Cruz’s medical chart and
diagnosis, that Cruz died of tetanus infection secondary to stab wound.7 Dr. Belandres specifically
described the cause of Cruz’s death in the following manner:

The wound was exposed x x – spurs concerted, the patient developed difficulty of opening the
mouth, spastivity of the body and abdominal pain and the cause of death is hypoxic encephalopathy
– neuro transmitted – due to upper G.I. bleeding x x x. Diagnosed of Tetanus, Stage III.8

The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who attended to Cruz at
the San Lazaro Hospital, but the prosecution and defense agreed to dispense with Dr. Matias’
testimony based on the stipulation that it would only corroborate Dr. Belandres’ testimony on Cruz
dying of tetanus.

For its part, the defense presented Villacorta himself, who denied stabbing Cruz. Villacorta
recounted that he was on his way home from work at around two o’clock in the morning of January
21, 2002. Upon arriving home, Villacorta drank coffee then went outside to buy cigarettes at a
nearby store. When Villacorta was about to leave the store, Cruz put his arm around Villacorta’s
shoulder. This prompted Villacorta to box Cruz, after which, Villacorta went home. Villacorta did not
notice that Cruz got hurt. Villacorta only found out about Cruz’s death upon his arrest on July 31,
2002.9

On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of murder, qualified
by treachery. The dispositive portion of said Decision reads:

WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta guilty beyond
reasonable doubt of the crime of Murder and is hereby sentenced to suffer the penalty of reclusion
perpetua and to pay the heirs of Danilo Cruz the sum of ₱50,000.00 as civil indemnity for the death
of said victim plus the costs of suit.10

Villacorta, through his counsel from the Public Attorney’s Office (PAO), filed a notice of appeal to
assail his conviction by the RTC.11 The Court of Appeals directed the PAO to file Villacorta’s brief,
within thirty days from receipt of notice.

Villacorta filed his Appellant’s Brief12 on May 30, 2007; while the People, through the Office of the
Solicitor General (OSG), filed its Appellee's Brief13 on October 2, 2007.

On July 30, 2008, the Court of Appeals promulgated its Decision affirming in toto the RTC judgment
of conviction against Villacorta.

Hence, Villacorta comes before this Court via the instant appeal.

Villacorta manifested that he would no longer file a supplemental brief, as he was adopting the
Appellant's Brief he filed before the Court of Appeals.14 The OSG, likewise, manifested that it was no
longer filing a supplemental brief. 15

In his Appellant’s Brief, Villacorta raised the following assignment of errors:

I
 THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT
GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING

CIRCUMSTANCE OF TREACHERY.

III

ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE COULD

ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16

Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing incident. It was Mendeja
who positively identified Villacorta as the one who stabbed Cruz in the early morning of January 23,
2002. Villacorta asserts that Mendeja’s account of the stabbing incident is replete with
inconsistencies and incredulities, and is contrary to normal human experience, such as: (1) instead
of shouting or calling for help when Villacorta allegedly stabbed Cruz, Mendeja attempted to run after
and catch Villacorta; (2) while, by Mendeja’s own account, there were other people who witnessed
the stabbing and could have chased after Villacorta, yet, oddly, only Mendeja did; (3) if Cruz was
stabbed so swiftly and suddenly as Mendeja described, then it would have been physically
improbable for Mendeja to have vividly recognized the perpetrator, who immediately ran away after
the stabbing; (4) after the stabbing, both Villacorta and Cruz ran in opposite directions; and (5)
Mendeja had said that the bamboo stick, the alleged murder weapon, was left at her store, although
she had also stated that the said bamboo stick was left embedded in Cruz’s body. Villacorta
maintains that the aforementioned inconsistencies are neither trivial nor inconsequential, and should
engender some doubt as to his guilt.

We are not persuaded.

To begin with, it is fundamental that the determination by the trial court of the credibility of witnesses,
when affirmed by the appellate court, is accorded full weight and credit as well as great respect, if
not conclusive effect. Such determination made by the trial court proceeds from its first-hand
opportunity to observe the demeanor of the witnesses, their conduct and attitude under grilling
examination, thereby placing the trial court in the unique position to assess the witnesses' credibility
and to appreciate their truthfulness, honesty and candor.17

In this case, both the RTC and the Court of Appeals gave full faith and credence to the testimony of
prosecution witness Mendeja. The Court of Appeals rejected Villacorta’s attempts to impugn
Mendeja’s testimony, thus:

Appellant’s reason for concluding that witness Mendeja’s testimony is incredible because she did not
shout or call for help and instead run after the appellant, fails to impress the Court because persons
who witness crimes react in different ways.

"x x x the makings of a human mind are unpredictable; people react differently and there is no
standard form of behavior when one is confronted by a shocking incident.

Equally lacking in merit is appellant’s second reason which is, other persons could have run after the
appellant after the stabbing incident. As explained by witness Mendeja, the other person whom she
identified as Aron was left to assist the appellant who was wounded. Further, the stabbing occurred
at 2:00 o’clock in the morning, a time when persons are expected to be asleep in their house, not
roaming the streets.

His [Villacorta’s] other argument that the swiftness of the stabbing incident rendered impossible or
incredible the identification of the assailant cannot likewise prosper in view of his admission that he
was in the store of witness Mendeja on January 23, 2002 at 2:00 o’clock in the morning and that he
assaulted the victim by boxing him.

Even if his admission is disregarded still the evidence of record cannot support appellant’s
argument. Appellant and the victim were known to witness Mendeja, both being her friends and
regular customers. There was light in front of the store. An opening in the store measuring 1 and ¼
meters enables the person inside to see persons outside, particularly those buying articles from the
store. The victim was in front of the store buying bread when attacked. Further, immediately after the
stabbing, witness Mendeja ran after the appellant giving her additional opportunity to identify the
malefactor. Thus, authorship of the attack can be credibly ascertained.18
Moreover, Villacorta was unable to present any reason or motivation for Mendeja to fabricate such a
lie and falsely accuse Villacorta of stabbing Cruz on January 23, 2002. We have ruled time and
again that where the prosecution eyewitness was familiar with both the victim and accused, and
where the locus criminis afforded good visibility, and where no improper motive can be attributed to
the witness for testifying against the accused, then her version of the story deserves much weight.19

The purported inconsistencies in Mendeja’s testimony pointed out by Villacorta are on matters that
have no bearing on the fundamental fact which Mendeja testified on: that Villacorta stabbed Cruz in
the early morning of January 23, 2002, right in front of Mendeja’s store.

In the face of Mendeja’s positive identification of Villacorta as Cruz’s stabber, Villacorta could only
muster an uncorroborated denial. Denial, like alibi, as an exonerating justification, is inherently weak
and if uncorroborated, regresses to blatant impotence. Like alibi, it also constitutes self-serving
negative evidence which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters.20

Hence, we do not deviate from the foregoing factual findings of the RTC, as affirmed by the Court of
Appeals.

Nevertheless, there is merit in the argument proffered by Villacorta that in the event he is found to
have indeed stabbed Cruz, he should only be held liable for slight physical injuries for the stab
wound he inflicted upon Cruz. The proximate cause of Cruz’s death is the tetanus infection, and not
the stab wound.

Proximate cause has been defined as "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result would
not have occurred."21

In this case, immediately after he was stabbed by Villacorta in the early morning of January 23,
2002, Cruz was rushed to and treated as an out-patient at the Tondo Medical Center. On February
14, 2002, Cruz was admitted to the San Lazaro Hospital for symptoms of severe tetanus infection,
where he died the following day, on February 15, 2002. The prosecution did not present evidence of
the emergency medical treatment Cruz received at the Tondo Medical Center, subsequent visits by
Cruz to Tondo Medical Center or any other hospital for follow-up medical treatment of his stab
wound, or Cruz’s activities between January 23 to February 14, 2002.

In Urbano v. Intermediate Appellate Court,22 the Court was confronted with a case of very similar
factual background as the one at bar. During an altercation on October 23, 1980, Urbano hacked
Javier with a bolo, inflicting an incised wound on Javier’s hand. Javier was treated by Dr. Meneses.
On November 14, 1980, Javier was rushed to the hospital with lockjaw and convulsions. Dr.
Exconde, who attended to Javier, found that Javier’s serious condition was caused by tetanus
infection. The next day, on November 15, 1980, Javier died. An Information was filed against Urbano
for homicide. Both the Circuit Criminal Court and the Intermediate Appellate Court found Urbano
guilty of homicide, because Javier's death was the natural and logical consequence of Urbano's
unlawful act. Urbano appealed before this Court, arguing that Javier’s own negligence was the
proximate cause of his death. Urbano alleged that when Dr. Meneses examined Javier’s wound, he
did not find any tetanus infection and that Javier could have acquired the tetanus germs when he
returned to work on his farm only two (2) weeks after sustaining his injury. The Court granted
Urbano’s appeal.

We quote extensively from the ratiocination of the Court in Urbano:

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time
Javier was wounded until his death which would exculpate Urbano from any liability for Javier's
death.

We look into the nature of tetanus-

"The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable
symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic
within 14 days. A short incubation period indicates severe disease, and when symptoms occur
within 2 or 3 days of injury the mortality rate approaches 100 percent.

"Non-specific premonitory symptoms such as restlessness, irritability, and headache are

encountered occasionally, but the commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the disease progresses, stiffness gives way to
rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus is the
commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw.
As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast
majority, however, most muscles are involved to some degree, and the signs and symptoms
encountered depend upon the major muscle groups affected.

"Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval referred to as
the onset time. As in the case of the incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which
prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage
and death.

"Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more
than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief
and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time;
trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate
even during spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or
on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at
the time, it is more medically probable that Javier should have been infected with only a mild case of
tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident
or more than 14 days after the infliction of the wound. Therefore, the onset time should have been
more than six days. Javier, however, died on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his
wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.23

The incubation period for tetanus infection and the length of time between the hacking incident and
the manifestation of severe tetanus infection created doubts in the mind of the Court that Javier
acquired the severe tetanus infection from the hacking incident. We explained in Urbano that:

The rule is that the death of the victim must be the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing
with a criminal conviction, the proof that the accused caused the victim's death must convince a
rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the basis of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible, if
there intervened between such prior or remote cause and the injury a distinct, successive, unrelated,
and efficient cause of the injury, even though such injury would not have happened but for such
condition or occasion. If no danger existed in the condition except because of the independent
cause, such condition was not the proximate cause. And if an independent negligent act or defective
condition sets into operation the instances, which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p.
125)24
We face the very same doubts in the instant case that compel us to set aside the conviction of
Villacorta for murder. There had been an interval of 22 days between the date of the stabbing and
the date when Cruz was rushed to San Lazaro Hospital, exhibiting symptoms of severe tetanus
infection. If Cruz acquired severe tetanus infection from the stabbing, then the symptoms would have
appeared a lot sooner than 22 days later. As the Court noted in Urbano, severe tetanus infection has
a short incubation period, less than 14 days; and those that exhibit symptoms with two to three days
from the injury, have one hundred percent (100%) mortality. Ultimately, we can only deduce that
Cruz’s stab wound was merely the remote cause, and its subsequent infection with tetanus might
have been the proximate cause of Cruz's death. The infection of Cruz’s stab wound by tetanus was
an efficient intervening cause later or between the time Cruz was stabbed to the time of his death.

However, Villacorta is not totally without criminal liability.  Villacorta is guilty of slight physical injuries
1âwphi1

under Article 266(1) of the Revised Penal Code for the stab wound he inflicted upon Cruz. Although
the charge in the instant case is for murder, a finding of guilt for the lesser offense of slight physical
injuries may be made considering that the latter offense is necessarily included in the former since
the essential ingredients of slight physical injuries constitute and form part of those constituting the
offense of murder.25

We cannot hold Villacorta criminally liable for attempted or frustrated murder because the
prosecution was not able to establish Villacorta’s intent to kill. In fact, the Court of Appeals expressly
observed the lack of evidence to prove such an intent beyond reasonable doubt, to wit:

Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him on the left side
of the body and then immediately fled. The instrument used is not as lethal as those made of
metallic material. The part of the body hit is not delicate in the sense that instant death can ensue by
reason of a single stab wound. The assault was done only once. Thus, there is doubt as to whether
appellant had an intent to kill the victim, which should be resolved in favor of the appellant. x x x.26

The intent must be proved in a clear and evident manner to exclude every possible doubt as to the
homicidal (or murderous) intent of the aggressor. The onus probandi lies not on accused-appellant
but on the prosecution. The inference that the intent to kill existed should not be drawn in the
absence of circumstances sufficient to prove this fact beyond reasonable doubt. When such intent is
lacking but wounds were inflicted, the crime is not frustrated murder but physical injuries only.27

Evidence on record shows that Cruz was brought to Tondo Medical Center for medical treatment
immediately after the stabbing incident.  Right after receiving medical treatment, Cruz was then
1avvphi1

released by the Tondo Medical Center as an out-patient. There was no other evidence to establish
that Cruz was incapacitated for labor and/or required medical attendance for more than nine days.
Without such evidence, the offense is only slight physical injuries.28

We still appreciate treachery as an aggravating circumstance, it being sufficiently alleged in the

Information and proved during trial.

The Information specified that "accused, armed with a sharpened bamboo stick, with intent to kill,
treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and stab with the said weapon one DANILO SALVADOR CRUZ x x x."

Treachery exists when an offender commits any of the crimes against persons, employing means,
methods or forms which tend directly or especially to ensure its execution, without risk to the
offender, arising from the defense that the offended party might make. This definition sets out what
must be shown by evidence to conclude that treachery existed, namely: (1) the employment of such
means of execution as would give the person attacked no opportunity for self-defense or retaliation;
and (2) the deliberate and conscious adoption of the means of execution. To reiterate, the essence
of qualifying circumstance is the suddenness, surprise and the lack of expectation that the attack will
take place, thus, depriving the victim of any real opportunity for self-defense while ensuring the
commission of the crime without risk to the aggressor.29 Likewise, even when the victim was
forewarned of the danger to his person, treachery may still be appreciated since what is decisive is
that the execution of the attack made it impossible for the victim to defend himself or to retaliate.30

Both the RTC and the Court of Appeals found that treachery was duly proven in this case, and we
sustain such finding. Cruz, the victim, was attacked so suddenly, unexpectedly, and without
provocation. It was two o’clock in the morning of January 23, 2002, and Cruz, who was out buying
bread at Mendeja’s store, was unarmed. Cruz had his guard down and was totally unprepared for an
attack on his person. Villacorta suddenly appeared from nowhere, armed with a sharpened bamboo
stick, and without uttering a word, stabbed Cruz at the left side of his body, then swiftly ran away.
Villacorta’s treacherous mode of attack left Cruz with no opportunity at all to defend himself or
retaliate.

Article 266(1) of the Revised Penal Code provides:

ART. 266. Slight physical injuries and maltreatment. – The crime of slight physical injuries shall be
punished:

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the
offended party from labor from one to nine days, or shall require medical attendance during the
same period.

The penalty of arresto menor spans from one (1) day to thirty (30) days.31 The Indeterminate
Sentence Law does not apply since said law excludes from its coverage cases where the penalty
imposed does not exceed one (1) year.32 With the aggravating circumstance of treachery, we can
sentence Villacorta with imprisonment anywhere within arresto menor in the maximum period, i.e.,
twenty-one (21) to thirty (30) days. Consequently, we impose upon Villacorta a straight sentence of
thirty (30) days of arresto menor; but given that Villacorta has been in jail since July 31, 2002 until
present time, already way beyond his imposed sentence, we order his immediate release.

Under paragraph (1), Article 2219 of the Civil Code, moral damages may be recovered in a criminal
offense resulting in physical injuries. Moral damages compensate for the mental anguish, serious
anxiety, and moral shock suffered by the victim and his family as being a proximate result of the
wrongful act. An award requires no proof of pecuniary loss. Pursuant to previous jurisprudence, an
award of Five Thousand Pesos (₱5,000.00) moral damages is appropriate for less serious, as well
as slight physical injuries.33

WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No.
02550, affirming the Decision dated September 22, 2006 of the Regional Trial Court, Branch 170, of
Malabon, in Criminal Case No. 27039-MN, is REVERSED and SET ASIDE. A new judgment is
entered finding Villacorta GUILTY beyond reasonable doubt of the crime of slight physical injuries,
as defined and punished by Article 266 of the Revised Penal Code, and sentenced to suffer the
penalty of thirty (30) days arresto menor. Considering that Villacorta has been incarcerated well
beyond the period of the penalty herein imposed, the Director of the Bureau of Prisons is ordered to
cause Villacorta’s immediate release, unless Villacorta is being lawfully held for another cause, and
to inform this Court, within five (5) days from receipt of this Decision, of the compliance with such
order. Villacorta is ordered to pay the heirs of the late Danilo Cruz moral damages in the sum of Five
Thousand Pesos (₱5,000.00).

SO ORDERED.

G.R. No. 172321               February 9, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RENATO DADULLA y CAPANAS, Defendant-Appellant.

DECISION

BERSAMIN, J.:

A rapacious father who vented his lust on his own daughter without any qualms is allowed to suffer
the lesser penalty because of the failure of the criminal information to aver his relationship with the
victim. Even so, the Court condemns his most despicable crime.

The father is now before the Court to assail the decision promulgated on January 20, 2006 in C.A.-
G.R. CR.-H.C. No. 01021, whereby the Court of Appeals (CA) pronounced him guilty beyond
reasonable doubt of simple rape in Criminal Case No. 98-2304, imposing reclusion perpetua, and of
acts of lasciviousness in Criminal Case No. 98-2305, thereby modifying the sentences handed down
by the Regional Trial Court, Branch 272 (RTC), in Marikina City.1

The Charges

On January 28, 1998, the accused was charged in the RTC with rape and attempted rape through
separate informations, as follows:

Criminal Case No. 98-2304-MK

That on or about the 15th day of January, 1998 in the City of Marikina, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, by means of threats, force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with
AAA,2 against her will and consent.3
 Criminal Case No. 98-2305-MK

That on or about the 22nd day of January, 1998 in the City of Marikina, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and
intimidation and with lewd design, did then and there willfully, unlawfully and feloniously try and
attempt to have carnal knowledge of herein complainant one AAA, thus commencing the
commission of the crime of rape directly by overt acts but did not perform all the acts of execution
that could have produced the crime of rape by reason of cause or causes other than his own
spontaneous desistance.4

Evidence of the Prosecution

In the evening of January 15, 1998, AAA, then sleeping in the bedroom that she and her five
younger siblings shared with their father, was roused from sleep by someone undressing her.5 It was
her father. AAA resisted, but the accused, wielding a bladed weapon,6 threatened to kill her if she
shouted.7 The accused then forcibly kissed her on the lips, mashed her breasts, touched her private
parts, and had carnal knowledge of her. After her ordeal, she put on her garments and just
cried.8 She recalled that her father had first sexually abused her on February 14, 1992.9

On January 22, 1998, AAA was again roused from sleep by her father touching her body. Noticing
that her shorts were already unzipped and unbuttoned, she zipped and buttoned them up and
covered herself with a blanket. But her father pulled the blanket away and tried to unzip her shorts.
However, she was able to go under the wooden bed to evade him. She resisted his attempts to pull
her out from under the bed by firmly holding on to the bed. She told him that she would not get out
from under the bed because what he was doing to her was bad.10 Upon hearing her, he stopped and
withdrew, telling her to leave the house. He then went to sleep.11 In the meanwhile, BBB, AAA’s
younger sister, was awakened by what she thought was an argument between her father and AAA.
She heard him tell AAA: Tumigil ka na nang kaiiyak, wala ka nang pakinabang. AAA just cried under
the bed and did not say anything. BBB soon fell asleep,12 but AAA could not sleep and remained
under the bed until morning when the accused left to ply his jeepney route.13

Upon waking up, BBB saw her father as he was about to leave the house. She heard him telling
AAA to leave the house.14 As soon as he had left, BBB approached the crying AAA and asked what
had happened to her. AAA related her ordeal and pleaded with BBB to help her.15 Together, they
went to their uncle, CCC, to report the incident. CCC queried AAA whether she wanted her father to
be thrown in jail, and she replied in the affirmative. Thus, CCC requested his wife to accompany
AAA to the barangay to file a complaint. Later, AAA and CCC’s wife went to Camp Crame for the
physical and genital examinations, which established that AAA had a deep healed hymenal
laceration at 5:00 o’clock position.16

Evidence of the Defense

The accused denied molesting AAA. He narrated that on January 15, 1998, AAA and BBB left the
house at around 6:30 p.m. to watch television elsewhere and returned only at around 11:00 p.m.;
that on January 22, 1998, he scolded AAA for her failure to cook on time; that at around 4:00 a.m. of
January 23, 1998, he struck AAA’s face with his fist (dinunggol sa mukha) and told her to leave the
house because he was slighted by AAA’s laughing instead of answering his query of whether she
had understood why he had scolded her the previous night; and that AAA was no longer a virgin due
to her having been raped by Joel Cloma in 1992, and by another man in 1993.17

The RTC Decision

On March 24, 1999, the RTC found the accused guilty of rape in Criminal Case No. 98-2304-MK,
and imposed the death penalty, ordering him to pay to AAA ₱50,000.00 as civil indemnity and
₱20,000.00 as moral damages; and of attempted rape in Criminal Case No. 98-2305-MK, and
imposed the indeterminate penalty of four years, nine months, and eleven days of prision
correccional, as minimum, to five years, four months, and twenty days, as maximum, ordering him to
pay to AAA ₱20,000.00 as moral damages.

The CA Decision

On appeal, the accused assigned the following errors, to wit:

I.

THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY IN CRIMINAL CASE
NO. 98-2304 DESPITE THAT ACCUSED WAS NOT PROPERLY INFORMED OF THE
NATURE AND CAUSE OF ACCUSATION AGAINST HIM WHICH IS IN VIOLATION OF HIS
CONSTITUTIONAL RIGHT.
 II.

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF ATTEMPTED

RAPE DOCKETED AS CRIMINAL CASE NO. 98-2305.

Nonetheless, the CA disposed in its decision promulgated on January 20, 2006:

WHEREFORE, the Decision appealed from is AFFIRMED with the following MODIFICATION:

In Criminal Case No. 98-2304-MK, accused-appellant Renato Dadulla y Capanas is found guilty
beyond reasonable doubt of simple rape and is sentenced to suffer the penalty of reclusion
perpetua. Accused-appellant is also ordered to pay AAA moral damages in the amount of
₱50,000.00, in addition to civil indemnity in the amount of ₱50,000.00.

In Criminal Case No. 98-2305-MK, accused-appellant Renato Dadulla y Capanas, is found guilty
beyond reasonable doubt of the crime of acts of lasciviousness and is sentenced to suffer an
indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum, and to pay AAA the amount of ₱30,000.00 as moral
damages.

SO ORDERED.

The CA held that the correct penalty in Criminal Case No. 98-2304-MK was reclusion
perpetua because the accused was liable only for simple rape by virtue of the information not
alleging any qualifying circumstances; and that in Criminal Case No. 98-2305-MK the accused was
guilty only of acts of lasciviousness, not attempted rape, because his act of opening the zipper and
buttons of AAA’s shorts, touching her, and pulling her from under the bed constituted only acts of
lasciviousness.

Ruling of the Court

We sustain the conviction but correct the award of civil liability.

Criminal Liabilities

The CA correctly determined the criminal liabilities in both cases.

To begin with, the finding and conclusion of the RTC that the totality of the evidence presented by
the State painted a convincing tale of AAA’s harrowing experience at the hands of the accused are
well founded and supported by the records. Her unwavering testimonial account of the bestiality of
her own father towards her reflected her singular reliability. The CA’s holding that a woman would
think twice before concocting a story of rape unless she was motivated by a desire to seek justice for
the wrong committed against her18 was apt and valid. Indeed, her revelation of being sexually
assaulted by her own father several times could only proceed from innate sincerity, and was entitled
to credence in the absence of strong showing by the accused of grounds to disbelieve her. Also, her
immediate willingness to report to and face the police investigation and to undergo the trouble and
humiliation of a public trial was a badge of trustworthiness.

Secondly, the failure to allege the qualifying circumstance of relationship in the information in
Criminal Case No. 98-2304-MK precluded a finding of qualified rape against the accused. Section
8,19 Rule 110 of the Rules of Court has expressly required that qualifying and aggravating
circumstances be specifically alleged in the information. Due to such requirement being pro reo, the
Court has authorized its retroactive application in favor of even those charged with felonies
committed prior to December 1, 2000 (i.e., the date of the effectivity of the 2000 revision of the Rules
of Criminal Procedure that embodied the requirement).20

The term "aggravating circumstance" is strictly construed when the appreciation of the modifying
circumstance can lead to the imposition of the maximum penalty of death.21 Consequently, the
qualifying circumstance of relationship, even if established during trial, could not affect the criminal
penalty of the accused by virtue of its non-allegation in the information. The accused could not be
convicted of the graver offense of qualified rape, although proven, because relationship was neither
alleged nor necessarily included in the information.22 Accordingly, the accused was properly
convicted by the CA for simple rape and justly punished with reclusion perpetua.

Thirdly, it is notable that the RTC outrightly concluded that the crime committed on January 22, 1998
constituted attempted rape, after quoting the testimony of AAA and BBB. It offered no analysis or
discussion of why the accused was criminally liable for attempted rape. The omission contravened
Section 14,23 Article VIII of the Constitution, as reiterated in Section 1,24 Rule 120 of the Rules of
Court, which enjoined that decisions should state clearly and distinctly the facts and the law on
which they are based.25

Nonetheless, the omission did not invalidate or render ineffectual the conviction, for the CA in due
course reformed the RTC’s error. In its disquisition on why the accused should be held liable for acts
of lasciviousness, instead of attempted rape, the CA explained the true nature of the crime of the
accused thus:

We likewise agree with accused-appellant that the court a quo erred in convicting him of attempted
rape in Criminal Case No. 98-2305-MK. In connection with the incident that transpired on January
22, 1998, Liza testified as follows:

Pros. Dela Peña:

Q: While you were sleeping in the evening on January 22, 1998, do you recall of any instance (sic)
or incident which awakened you?

Witness:

A: Yes, sir.

Q: Again Miss Witness, tell us this incident that you are referring to?

A: While I was sleeping, I was awakened that my zipper was already opened and my buttons were
already loosened.

Q: And upon noticing that the zipper and the buttons of your short[s] are already loosened or
opened, what did you do?

A: I zipped it again and unbuttoned it.

Q: Was your father there on that night?

A: Yes, sir.

Q: What about your brother and sisters?

A: They were already asleep.

Q: Like on January 15, 1998, you slept, on January 22, 1998, you slept side by side with your
brothers and sisters and your father?

A: Yes, sir.

Q: Did you notice the presence of your father when you said you were awakened on that
night?

A: Yes, sir.

Q: What was he doing?

A: He was sitting and touching me, sir.

Q: How far was he from you?

A: He was near me.

Q: And upon seeing your father near you and the button and zipper of your short[s] was
open, what did you do?

A: I zipped and unbuttoned my short[s] and covered myself with blanket.

Q: Why did you cover yourself with blanket?

A: Because I do not want to see him beside me.

Q: Did you not ask your father to leave because you do not want to see him?

A: I told him.

Q: Did your father leave?

A: No, sir.

Q: Why don’t you like your father beside you?

A: Because of these things he was doing to me.

Q: And after covering yourself with blanket, what transpired next?

A: He removed the blanket from me, sir.

Q: And after that, what happened?

A: He was forcibly opening my short[s].

Q: What did you do when your father was forcibly opening your short[s]?

A: I covered myself under the wooden bed.

Q: How wide is this wooden bed?

A: From that wall up to the rostrum.

Pros. Dela Peña:

About a distance of two meters in width. Why did you hide yourself under the wooden bed?

A: In order not to repeat what he was doing to me.

Q: After you hi[d] yourself under the wooden bed, what did your father did [sic] to you?

A: He held me on my hands and tried to pull me out under the wooden bed.

Q: And was your father able to pull you out under the wooden bed?

A: No sir.

The act of accused-appellant in opening the zipper and buttons of the shorts of Liza,
touching her and pulling her when she hid under the bed showed that he employed force on
Liza and was motivated by lewd designs. The word "lewd" is defined as obscene, lustful,
indecent, and lecherous. It signifies that form of immorality which has relation to moral
impurity; or that which is carried in a wanton manner. Thus, the crime committed by accused-
appellant is merely acts of lasciviousness, which is included in rape. The elements of the crime
of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness;
(2) that it is done: (a) by using force and intimidation, or (b) when the offended party is deprived of
reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3)
that the offended party is another person of either sex.26

According to People v. Collado,27 the difference between attempted rape and acts of lasciviousness
lies in the intent of the perpetrator as deduced from his external acts. The intent referred to is the
intent to lie with a woman.28 Attempted rape is committed when the "touching" of the vagina by the
penis is coupled with the intent to penetrate; otherwise, there can only be acts of
lasciviousness.29 Thus, the accused’s act of opening the zipper and buttons of AAA’s shorts,
touching her, and trying to pull her from under the bed manifested lewd designs, not intent to lie with
her. The evidence to prove that a definite intent to lie with AAA motivated the accused was plainly
wanting, therefore, rendering him guilty only of acts of lasciviousness in Criminal Case No. 98-2305-
MK.

And, fourthly, the indeterminate penalty imposed by the RTC was erroneous for not being in accord
with the Indeterminate Sentence Law. This impelled the CA to revise the indeterminate penalty,
rationalizing:
Under Article 336 of the Revised Penal Code, the penalty for acts of lasciviousness is prision
correccional. We impose the penalty in its medium period, there being no aggravating or mitigating
circumstance alleged and proved. Applying the Indeterminate Sentence Law, the proper penalty
imposable is from six months of arresto mayor, as minimum, to four years and two months of prision
correccional, as maximum.30

We uphold the revision by the CA. The RTC fixed the minimum of the indeterminate penalty from
within prision correccional, when Section 131 of the Indeterminate Sentence Law expressly required
that the minimum "shall be within the range of the penalty next lower to that prescribed by the Code
for the offense." The penalty next lower is arresto mayor.

II

Civil liability must be modified

Under Article 2230 of the Civil Code,32 the attendance of any aggravating circumstance (generic,
qualifying, or attendant) entitles the offended party to recover exemplary damages. Here,
relationship was the aggravating circumstance attendant in both cases. We need to award
₱30,000.00 as exemplary damages in rape and of ₱10,000.00 as exemplary damages in acts of
lasciviousness.

Although, as earlier mentioned, an aggravating circumstance not specifically alleged in the

information (albeit established at trial) cannot be appreciated to increase the criminal liability of the
accused, the established presence of one or two aggravating circumstances of any kind or nature

entitles the offended party to exemplary damages under Article 2230 of the Civil Code because the
requirement of specificity in the information affected only the criminal liability of the accused, not his
civil liability. The Court has well explained this in People v. Catubig:33

The term "aggravating circumstances" used by the Civil Code, the law not having specified
otherwise, is to be understood in its broad or generic sense. The commission of an offense has a
two-pronged effect, one on the public as it breaches the social order and the other upon the private
victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription
of heavier punishment for the accused and by an award of additional damages to the victim. The
increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by
the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission.
Unlike the criminal liability which is basically a State concern, the award of damages, however, is
likewise, if not primarily, intended for the offended party who suffers thereby. It would make little
sense for an award of exemplary damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of consequence
to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the
case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party
to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. lavvphil

That People v. Catubig was subsequent to the dates of the commission of the crimes charged did
not matter. Like any other judicial interpretation of an existing law, the ruling in People v.
Catubig settled the circumstances when Article 2230 of the Civil Code applied, thereby reflecting the
meaning and state of that legal provision. The retroactivity of the ruling vis-à-vis the accused could
not be challenged or be barred by virtue of its being civil, not penal, in effect.

WHEREFORE, the Decision promulgated on January 20, 2006 in CA-G.R. CR-H.C. No. 01021 is
affirmed in all respects, subject to the modification that the civil liabilities include ₱30,000.00 as
exemplary damages for the rape (Criminal Case No. 98-2034-MK), and ₱10,000.00 as exemplary
damages for the acts of lasciviousness (Criminal Case No. 98-2035-MK).

SO ORDERED.

G.R. Nos. 168951& 169000, July 17, 2013

DR. ROGER R. POSADAS AND DR. ROLANDO P.

DAYCO, Petitioners, v. SANDIGANBAYAN AND PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

VILLARAMA, JR., J.:
 

Petitioners assail their conviction for Violation of Section 3(e) of Republic Act (R.A.) No.
3019 (The Anti-Graft and Corrupt Practices Act) and Section 7(b)of R.A. No. 6713 (The
Code of Conduct and Ethical Standards for Public Officials and Employees) under
Decision1 dated June 28, 2005 of the Sandiganbayan in Crim. Case Nos. 25465-66.

The Facts

Petitioner Dr. Roger R. Posadas (Dr. Posadas), a Ph.D. in Relativity Physics graduate
from the University of Pittsburgh, is a longtime professor and former Dean of the
College of Science at the University of the Philippines-Diliman Campus (UP Diliman). 
He was appointed by the Board of Regents (BOR) of the University of the Philippines
System as UP Diliman Chancellor for a three-year term starting November 1, 1993 and
ending October 31, 1996.

During his term as Chancellor, Dr. Posadas is one of the leading figures in the emerging
inter-disciplinary field of technology management in the Philippines.Upon the
recommendation of the UP Diliman Task Force on Science and Technology Assessment,
Management and Planning composed of deans and professors from the various colleges
in UP Diliman, the BOR on February 23, 1995 approved the establishment of the
Technology Management Center (TMC)  under the direct supervision of the Office of the
Chancellor, UP Diliman.When the TMC became operational in June 1995, the Task Force
on Science and Technology Assessment, Management and Planning wrote then UP
President Dr. Emil Q. Javier, nominating Dr. Posadas for the position of TMC Director.
For undisclosed reason, Dr. Posadas declined the nomination and instead he (Dr.
Posadas) designated Prof. Jose Tabbada of the College of Public Administration as
Acting Director of TMC.

On July 26, 1995, Dr. Posadas submitted to the National Economic and Development
Authority (NEDA) an Application for Funding of his proposed project entitled
“Institutionalization of Technology Management at the University of the Philippines in
Diliman” (TMC Project).   The TMC Project, to be funded by a grant from the Canadian
International Development Agency (CIDA), aimed to design and develop ten new
graduate courses in technology management for the diploma, master’s and doctoral
programs to be offered by TMC.2

On September 18, 1995, a Memorandum of Agreement3 (MOA) was executed between

Dr. Posadas, on behalf of UP-Diliman, and the Philippine Institute for Development
Studies (PIDS) as the Local Executing Agency of the Policy, Training and Technical
Assistance Facility (PTTAF) of CIDA.   Under the MOA, CIDA shall provide the funding
for the total project cost (P5,442,400.00), with the NEDA as the designated PTTAF
Project Implement or for the Government of the Philippines, while UPDiliman shall
direct, manage and implement all activities under the approved project with
counterpart funding in the amount of P4,228,524.00.

In a letter dated July 30, 1995, the President of Hua Qiao University in Fujian Province,
China invited Dr. Posadas and a delegation from UP Diliman to visit on October 30 to
November 6, 1995.  On October 5, 1995, then Senior Deputy Executive Secretary
Leonardo A. Quisumbing (retired Member of this Court) issued the Authority to Travel
for the UP Diliman delegation headed by Dr. Posadas.  Among those who joined the
delegation were Dr. Amaryllis Torres and Dr. Rosario Yu, UPDiliman’s Vice-Chancellor
for Academic Affairs and Vice-Chancellor for Student Affairs, respectively.4Under
Administrative Order (AO) No. 95-170 dated October 24, 1995, Dr. Posadas designated
petitioner Dr. Rolando P. Dayco (Dr. Dayco), Vice-Chancellor for Administrative Affairs,
as Officer-In-Charge (OIC) of UP Diliman effective October 30, 1995 until November 6,
1995.  This was followed by AO No. 95-170-A dated October 27, 1995, which amended
the previous order by extending the OIC designation of Dr. Dayco to November 7,
1995.5

On November 7, 1995, Dr. Dayco appointed Dr. Posadas as Project Director of UP TMC
effective September 18, 1995 up to September 17, 1996.In another undated “Contract
for Consultancy Services” signed by Dr. Dayco, Dr. Posadas was hired as Consultant for
the TMC Project for the same period.6As evidenced by disbursement vouchers and
admitted by Dr. Posadas, the latter received his “honoraria” (P30,000.00 per month)
and consultancy fees (totaling P100,000.00) as Project Director and Consultant of the
TMC Project until May 1996 when the Commission on Audit (COA) raised questions on
the legality of the said fees.7

In August 1996, payment of the subject “honoraria” and fees was suspended by COA
Resident Auditor Romeo J. Pulido who noted the following deficiencies: cralavvonlinelawlibrary

1. Honoraria were in excess of the rates provided for under the National
Compensation Circular No. 73, dated March 1, 1996, x x x.

2. Legal basis for designating the incumbent Chancellor as Project Director

by the Officer-In-Charge (OIC), considering that the latter can assume the
post only in the absence of the former.  An OIC cannot validly designate
since the authority to designate/appoint is among the functions of the
Chancellor which cannot be delegated as provided in the University
Charter.  Moreover, the authority to appoint can never be delegated since
it involves discretion.

3. On the assumption that the designation of the Chancellor as Project

Director and Consultant is valid, collecting the remuneration for both
positions amount to double compensation which is contrary to existing
auditing rules and regulations.8

In a Memorandum9 dated September 16, 1996, UP’s Chief Legal Officer Marichu C.

Lambino addressed the foregoing concerns of COA Auditor Pulido.Atty. Lambino stated
that (a) the compensation received by Dr. Posadas are in the nature of consultancy fees
and hence expressly exempted by Department of Budget and Management
(DBM)National Compensation Circular (NCC) No. 75 dated March 11, 1995; (b)  the
TMC Project, being a training program, is likewise exempted from the coverage of NEDA
Guidelines on the Procurement of Consulting Services for Government Projects; and (c)
under Civil Service Commission (CSC) Memorandum Circular (MC) No. 43, series of
1993 “Streamlining and Deregulating Human Resource Development Functions” UP is
authorized, without prior approval from the CSC, to determine the rates of honorarium
for government personnel participating as resource persons, coordinator, and facilitator,
in training programs.  On the issue of double compensation, Atty. Lambino pointed out
that Dr. Posadas was appointed Project Director because of managerial expertise, and
his skills in supervising personnel who are involved in an academic undertaking, and as
Consultant because of his expertise in technology management. Finding these
explanations/justifications acceptable, Auditor Pulido lifted the notices of suspension in
September 1997.

However, even before the issuance of the suspension notices, then UP President Dr.
Emil Q. Javier, ordered an investigation on the basis of an administrative complaint filed
by Mrs. Ofelia L. Del Mundo, a staff of the University Library who was detailed at the
TMC as its Administrative Officer. On July 24, 1996, President Javier created a Fact-
Finding Committee to gather, review and evaluate pertinent documents regarding
certain transactions of the TMC.10  After the conduct of a preliminary investigation and
finding a prima facie case against the petitioners, President Javier issued the formal
charges11 for Grave Misconduct and Abuse of Authority.  Pursuant to the University’s
“Rules and Regulations on the Discipline of Faculty Members and Employees approved
at the 704th Meeting of the Board of Regents on January 11, 1963,”12 an Administrative
Disciplinary Tribunal (ADT) was constituted, chaired by Atty. Arturo E. Balbastro, a
faculty member of the UP College of Law.

On August 21, 1998, the ADT submitted its Report13 (ADT Case 96-001) to President
Javier.  The ADT found petitioners guilty of serious or grave misconduct and
recommended the penalty of dismissal in accordance with CSC Memorandum Circular
No. 30, series of 1989, as well as Article 250 of the University Code.  The Report
likewise stated that the acts of petitioners for which they were held administratively
liable may warrant prosecution under Section 3(h) and (i) of R.A. No. 3019.  Under the
Order14 dated August 25, 1998 signed by President Javier, petitioners were dismissed
from the service.

On September 3, 1998, Atty. Carmelita Yadao-Guno in her capacity as General Counsel

of UP formally endorsed the findings and recommendations of the ADT to the
Ombudsman.15  The case was docketed as OMB-0-98-1843.
Meanwhile, the BOR at its 1126th meeting on November 26, 1998, resolved petitioners’
appeal in ADT Case 96-001, as follows: cralavvonlinelawlibrary

1. The Board affirmed the ADT decision finding the respondents guilty of
grave misconduct and imposed on them the penalty of forced resignation
with the accessory penalties defined in the Omnibus Rules Implementing
Book V of Executive Order 292 and other Pertinent Civil Service Laws –
i.e., cancellation of eligibility, forfeiture of all leave credits and retirement
benefits, and disqualification from government service for one year.

2. If after one year they should reapply to the University, they must render
an apology to the University and their reappointments will be subject to
Board approval.

3. The respondents are permanently disqualified from holding any

administrative position in the University.

4. The decision takes effect immediately.16

Satisfied with the BOR’s action, petitioners caused the withdrawal of their appeal before
the CSC.17

On June 9, 1999, the Evaluation and Preliminary Investigation Bureau of the Office of
Ombudsman recommended the dismissal of the charges against petitioners for
insufficiency of evidence. However, said recommendation was disapproved by then
Ombudsman Aniano A. Desierto who ordered that petitioners be indicted for violation of
Section 3(e) of R.A. No. 3019 and Section 7(b) in relation to Section 11 of R.A. No.
6713.18

The corresponding Informations19were thus filed against the petitioners before the
Sandiganbayan (Criminal Case Nos. 25465-66), as follow: cralavvonlinelawlibrary

Criminal Case No. 25465

That on or about 7 November 1995, or sometime prior or subsequent thereto, in

Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, both high-ranking public officers, ROGER DELA ROSA POSADAS, being
then the Chancellor and a faculty member of the University of the Philippines-Diliman
Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said
university and Officer-In-Charge of the Office of the Chancellor, committing the crime
herein charged in relation to, while in the performance and taking advantage of their
official and administrative functions,and conspiring and confederating with and mutually
helping each other, did then and there willfully, unlawfully and criminally give
unwarranted benefits, privilege or advantage to accused POSADAS, when accused
DAYCO appointed or designated accused POSADAS as a Project Director of the lone
project, Institutionalization of the Management of Technology at U.P. Diliman, of the
Technology Management Center (TMC) of the Office of the Chancellor, U.P. Diliman,
which enabled or caused the disbursement and payment of monthly salary of
P30,000.00 of accused POSADAS, duly received by the latter, for the period 18
September 1995 to 17 September 1996, with accused POSADAS also receiving his
salaries as Chancellor and faculty member of U.P. Diliman during this period, and both
accused knowing fully well that the appointment of accused POSADAS was beyond the
power or authority of accused DAYCO as an OIC and likewise violative of the law, rules
and regulations against multiple positions, double compensation and retroactivity of
appointment, thereby causing undue injury to the Government in the amount
of  PESOS: THREE HUNDRED SIXTY THOUSAND (P360,000.00), to the damage and
prejudice of the Government.

CONTRARY TO LAW.

Criminal Case No. 25466

That on or about 7 November 1995, or sometime prior or subsequent thereto, in

Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, both high-ranking public officers, ROGER DELA ROSA POSADAS, being
then the Chancellor and a faculty member of the University of the Philippines-Diliman
Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said
university and Officer-In-Charge of the Office of the Chancellor, committing the crime
herein charged in relation to, while in the performance and taking advantage of their
official and administrative functions, and conspiring and confederating with and
mutually helping each other, did then and there willfully, unlawfully and criminally
engage in the unauthorized private practice of accused POSADAS’s profession as a
technology manager, when accused DAYCO appointed or designated accused POSADAS
as a consultant to the project, Institutionalization of the Management of Technology at
U.P. Diliman, of the Technology Management Center (TMC) of the Office of the
Chancellor, U.P. Diliman, which enabled or caused the disbursement and payment of
consultancy fees in the amount of P100,000.00 to accused POSADAS, duly received by
the latter, with respondent POSADAS also receiving his salaries as Chancellor and
faculty member of U.P. Diliman, and both accused knowing fully well that the
appointment to and acceptance of the position of consultant by respondent POSADAS
was without authority from the latter’s superior(s) or the U.P. Board of Regents, to the
damage and prejudice of the Government service.

CONTRARY TO LAW.

Dr. Dayco and Dr. Posadas were duly arraigned on June 15, 2000 and May 28, 2001,
respectively, both pleading not guilty to the charges against them.20

Ruling of the Sandiganbayan

After due proceedings, the Sandiganbayan rendered its Decision21 dated June 28, 2005,
the decretal portion of which reads:cralavvonlinelawlibrary

ACCORDINGLY, this Court finds both accused Roger R. Posadas and Rolando P.
Dayco GUILTY beyond reasonable doubt of violating Section 3(e) of RA 3019 and
Section 7(b) of RA 6713 and are sentenced to suffer the following penalties: cralavvonlinelawlibrary

For violation of Section 3(e) of RA 3019: accused Posadas and Dayco are sentenced to
suffer in prison the indeterminate penalty of nine (9) years and one day as minimum
and twelve (12) years as maximum, with the accessory penalty of perpetual
disqualification from public office.  Both accused are directed to jointly and severally
indemnify the Government of the Republic of the Philippines the amount of THREE
HUNDRED THIRTY SIX THOUSAND PESOS (P336,000.00).

For violation of Section 7(b) of RA 6713: accused Posadas and Dayco are sentenced to
suffer in prison the maximum penalty of five (5) years and disqualification to hold
public office.

SO ORDERED.22

The Sandiganbayan held that the evidence supports a finding of   evident bad faith on
the part of petitioners who, knowing very well the limitations of Dr. Dayco’s power as
OIC, effected the appointment of Dr. Posadas as TMC Project Director and Consultant. 
These limitations are based on the nature of the power to appoint which is merely
delegated to the Chancellor by the BOR, Section 204 of the Government Accounting and
Auditing Manual, and CSC MC No. 38, s. 1993 on non-retroactivity of appointments.

The Sandiganbayan concluded that petitioners’ acts caused undue injury to the
Government with the receipt by Dr. Posadas of salaries and consultancy fees. 
Petitioners’ contention that the Government did not suffer loss or damage since the
funding for the TMC Project came from CIDA was rejected by the Sandiganbayan which
stated that from the moment UP received the CIDA funds intended for the TMC Project,
said funds became “impressed with public attributes or character,” as in fact it was
subjected to the control of UP and audited by the COA.

The Sandiganbayan likewise found no merit in petitioners’ claim that they were just
victims of “university politics”as they were staunch critics of President Javier.
Petitioners adduced documentary and testimonial evidence to show that Ms. Del
Mundo’s filing of a complaint against petitioners was triggered by the fact that it was
Dr. Posadas who ordered an administrative investigation against her and recalled her to
the University Library, which incident led to the resignation of Prof. Tabbada from TMC. 
However, the Sandiganbayan stressed that regardless of the reason for the filing of the
cases against petitioners at the university level, these cases would not have come into
being if no law has been violated in the first place.

Petitioners filed a motion for reconsideration but it was denied due course for the
reason that it has not been set for hearing as required by the rules, hence the
motion ispro forma.

In this petition for certiorari, petitioners allege grave abuse of discretion and blatant
violation of their constitutionally guaranteed right to due process.

The Issues

The Court is asked to resolve whether the Sandiganbayan committed grave abuse of
discretion amounting to lack of or in excess of jurisdiction: (1) in denying petitioners’
motion for reconsideration on the ground that it was not set for hearing; and (2) in
convicting petitioners of Violation of Section 3(e) of R.A. No. 3019 and Section 7(b) of
R.A. No. 6713 on the basis of facts not supported by evidence and on inapplicable rules
and principles.

Petitioners’ Arguments

Petitioners argue that the July 19, 2005 Resolution denying their motion for
reconsideration is not only baseless, but capricious, arbitrary and most unjust because
the Revised Internal Rules of the Sandiganbayan does not require that the motion for
reconsideration be set for hearing.  They cite the case of Alvarez v.
Sandiganbayan23 where this Court ruled that motions for reconsideration of decisions or
final orders of the Sandiganbayan are not governed by Rule 15 of the Rules of Court, as
these may be filed within 15 days from promulgation or notice of the judgment or final
order “upon the grounds, in the form and subject to the requirements, for motions for
new trial in criminal cases under Rule 121 of the Rules of Court.”

On the charges of graft, petitioners assert that they did not act with bad faith, manifest
partiality or gross inexcusable negligence. They reiterate that Dr. Dayco’s designation
as OIC Chancellor was adjusted for one day merely to accommodate the change in the
official travel schedule of Dr. Posadas to China.  The appointment of Dr. Posadas as
TMC Project Director and Consultant was a valid appointment and was made retroactive
for no other reason than to synchronize the activities relative to the TMC Project with
the project schedule as approved by the funding agency.  The power of appointment
was within the power of the Chancellor to delegate to the OIC Chancellor, it not being
expressly prohibited by the University rules.  Such practice, in fact, is not an unusual
occurrence in UP.

Petitioners also contend that no injury was caused to the government because the TMC
Project budget came from foreign funds, hence not an expense incurred by the
Government and neither did UP incur any expense in relation to the said project, its
counterpart funding was not in the form of money.Consequently, there can be no
conviction under the law in the absence of real or actual damage suffered.

On the “honoraria” and fees received by Dr. Posadas as Project Director and
Consultant, petitioners insist they cannot be held liable for double compensation
because these were given for separate services rendered by Dr. Posadas.  As opined by
the UP Chief Legal Officer, the compensation were in the nature of consultancy fees
being received by UP personnel in their capacity as private persons for services to a
project outside of their official time, hence it is not covered by the DBM NCC No. 75. 
Moreover, petitioners stress that Dr. Posadas did not receive any unwarranted benefit,
advantage or preference in his appointment as TMC Project Director and Consultant. 
Dr. Posadas possesses the superior qualifications and expertise in the field of
technology management necessary to ensure that the project was a success.  In fact,
his colleagues were expecting him to head the TMC Project and did not oppose his
appointment.

As to the charge of unauthorized outside employment, petitioners point out that the
University rules do not require clearance from the UP President to engage in
consultancy work and the same rules do not prohibit him from performing consultancy
work for a project such as TMC.  Therefore, Dr. Posadas’ appointment as TMC Project
Director and Consultant were not prohibited outside employment.

Petitioners reiterate their“university politics” defense, claiming that President Javier at

the time chose to champion Del Mundo’s complaint motivated by vengeance and spite
against two of his staunch critics.  Thus, despite knowledge of the opinion of the UP
Chief Legal Officer clearing petitioners of any wrongdoing, President Javier
underhandedly caused the filing of administrative charges in the ADT.

Petitioners further submit that the complainant before the Ombudsman, Atty. Carmelita
Yadao, was incompetent as she had no personal knowledge of the contents thereof,
which were merely narrated or reported to her in her capacity as General Counsel of UP
at that time.  The letter-complaint should not have been given due course as it was
based on pure hearsay and its main proponent suffered from conflicting interests
because she had earlier endorsed the MOA which included the compensation package
for TMC Project Director and Consultant.

Finally, petitioners deny having acted in conspiracy as there was no evidence to prove
it. The only assumed fact considered by the Sandiganbayan is based on its erroneous
hypothesis – the alleged act of “extending” the period of OIC Chancellor for one day to
accommodate Dr. Posadas. Dr. Dayco did not even gain anything from his designation
of Dr. Posadas.  Thus, in the absence of clear and convincing proof, petitioners cannot
be held liable as conspirators.

Our Ruling

The petition has no merit.

Notice of Hearingin Motions for

Reconsideration Is Mandatory

Contrary to petitioners’ stance, the 2002 Revised Internal Rules of the

Sandiganbayan requires a motion for reconsideration to be set for hearing, as it
provides under Rule VII: cralavvonlinelawlibrary

SECTION 1. Motion Day. -  Except for motions which may be acted upon ex parte, all
motions shall be scheduled for hearings on a Friday, or if that day is a non-working
holiday, on the next working day.

Motions requiring immediate action may be acted upon on shorter notice.

In appealed cases, the provisions of Sec. 3, Rule 49 of the 1997 Rules of Civil
Procedure, as amended, on Motions shall apply.  (Emphasis supplied.)

Under the Rules of Sandiganbayan, effective January 10, 1979, a petition for
reconsideration of a judgment or final order may be filed upon the grounds, in the form
and subject to the requirements, for motions for new trial in criminal cases under Rule
121 of the Rules of Court.24  In the case of Alvarezv. Sandiganbayan25 decided in 1991,
the Court upheld the Sandiganbayan in not considering “the failure of the movant to fix
the place, date and time of the hearing of his motion a substantial defect, for instead of
giving the motion a short shrift, it set the incident for hearing, and even granted the
prosecution ten days from [notice] within which to oppose/comment.” The Court noted
what was then the practice of the Sandigabayan itself, rather than the movant, to
determine the date and time of hearings of motions.  The peculiar circumstances of said
case heavilyweighed in favor of relaxation of the rules, with the Court’s finding that the
evidence presented against the petitioner does not fulfill the test of moral certainty and
may not be deemed sufficient to support a conviction.  Hence, the Court was not
prepared “to declare that [petitioner’s] omission to set his motion for hearing is so
grievous an error as to foreclose the award to him of the relief to which he is otherwise
entitled.”

In any event, the mandatory setting for hearing a motion for reconsideration to reverse
or modify a judgment or final order of the Sandiganbayan is already settled.  This Court
categorically ruled in the recent case of Flores v. People26

Flores filed a motion for the reconsideration. As the motion did not contain any notice of
hearing, the Prosecution filed its Motion to Expunge from the Records Accused’s Motion
for Reconsideration.”

In its Resolution, dated November 29, 2007, the Sandiganbayan denied the motion for
being a mere scrap of paper as it did not contain a notice of hearing and disposed as
follows:
cralavvonlinelawlibrary

WHEREFORE, in view of the foregoing, the Motion for Reconsideration of accused

Flores is considered pro forma which did not toll the running of the period to appeal,
and thus, the assailed judgment of this Court has become FINAL and EXECUTORY.

SO ORDERED.

xxxx
Flores claims that the outright denial of his motion for reconsideration by the
Sandiganbayan on a mere technicality amounts to a violation of his right to due
process. The dismissal rendered final and executory the assailed decision which was
replete with baseless conjectures and conclusions that were contrary to the evidence on
record. He points out that a relaxation of procedural rules is justified by the merits of
this case as the facts, viewed from the proper and objective perspective, indubitably
demonstrate self-defense on his part.

Flores argues that he fully complied with the requirements of Section2 of Rule 37 and
Section 4 of Rule 121 of the Rules of Court when the motion itself was served upon the
prosecution and the latter, in fact,admitted receiving a copy. For Flores, such judicial
admission amounts to giving due notice of the motion which is the intent behind the
said rules. He further argues that a hearing on a motion for reconsideration is not
necessary as no further proceeding, such as a hearing, is required under Section 3 of
Rule 121.

Flores’ argument fails to persuade this Court.

Section 5, Rule 15 of the Rules of Court reads: cralavvonlinelawlibrary

SECTION 5. Notice of hearing. – The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing which must not be later
than ten (10) days after the filing of the motion.
Section 2, Rule 37 provides: cralavvonlinelawlibrary

SEC. 2. Contents of motion for new trial or reconsideration and notice thereof. – The
motion shall be made in writing stating the ground or grounds therefore, a written
notice of which shall be served by the movant on the adverse party.

xxxx
A pro forma motion for new trial or reconsideration shall not toll the reglementary
period of appeal.

Section 4, Rule 121 states: cralavvonlinelawlibrary

SEC. 4. Form of motion and notice to the prosecutor. – The motion for a new trial or
reconsideration shall be in writing and shall state the grounds on which it is based. x x
x. Notice of the motion for new trial or reconsideration shall be given to the prosecutor.
As correctly stated by the Office of the Special Prosecutor (OSP), Sec.2 of Rule 37
and Sec. 4 of Rule 121 should be read in conjunction with Sec.5 of Rule 15 of
the Rules of Court. Basic is the rule that every motion must be set for hearing by the
movant except for those motions which the court may act upon without prejudice to the
rights of the adverse party. The notice of hearing must be addressed to all parties
and must specify the time and date of the hearing, with proof of service.

This Court has indeed held, time and again, that under Sections 4 and5 of Rule 15
of the Rules of Court, the requirement is mandatory. Failure to comply with
the requirement renders the motion defective. “As a rule, a motion without a
notice of hearing is considered pro forma and does not affect the reglementary
period for the appeal or the filing of the requisite pleading.”

In this case, as Flores committed a procedural lapse in failing to include a notice of

hearing, his motion was a worthless piece of paper with no legal effect whatsoever.
Thus, his motion was properly dismissed by the Sandiganbayan.27 (Emphasis supplied.)

We thus find no grave abuse of discretion committed by the Sandiganbayan when it

denied due course to petitioners’ motion for reconsideration on the ground that it “has
not been set for hearing as required by the rules” and the same is “deemed pro forma.”
Violation of Section 3(e)of R.A. No. 3019

The essential elements of the crime defined in Section 3(e) of R.A. No. 3019, otherwise
known as The Anti-Graft and Corrupt Practices Act, are: cralavvonlinelawlibrary

1. The accused must be a public officer discharging administrative, judicial or

official functions; chanroblesvirtualawlibrary

2. He must have acted with manifest partiality, evident bad faith or

inexcusable negligence; and

3. That his action caused any undue injury to any party, including the
government, or giving any private party unwarranted benefits, advantage
or preference in the discharge of his functions.28

There is no question regarding the presence of the first requisite considering that at the
time the subject appointments were made, both petitioners were faculty members and
holding administrative positions in UP Diliman.  What petitioners dispute is the
existence of the second and third requisites.

In Criminal Case No. 25465, the information charged that petitioners willfully,
unlawfully and criminally gave unwarranted benefits to Dr. Posadas in appointing him
as TMC Project Director, in violation of the prohibition against multiple positions and the
rule on non-retroactivity of appointments, thereby causing undue injury to the
Government.

In Cabrera v. Sandiganbayan,29 this Court explained that there are two (2) ways by
which a public official violates Section 3(e) of R.A. No. 3019 in the performance of his
functions, namely: (a) by causing undue injury to any party, including the Government;
or (b) by giving any private party any unwarranted benefits, advantage or preference. 
The accused may be charged under either mode or under both.  Moreover, in Quibal v.
Sandiganbayan,30 the Court held that the use of the disjunctive term“or” connotes that
either act qualifies as a violation of Section 3(e) of R.A. No. 3019.31  Here, petitioners
were charged with committing the offense under both modes.

Upon the entire evidence on record, the Sandiganbayan was convinced that petitioners
were guilty of causing undue injury to the Government.  In Llorente, Jr. v.
Sandiganbayan,32 this Court said that to hold a person liable for causing undue injury
under Section 3(e), the concurrence of the following elements must be established
beyond reasonable doubt by the prosecution: cralavvonlinelawlibrary

(1) that the accused is a public officer or a private person charged in conspiracy with
the former; chanroblesvirtualawlibrary

(2) that said public officer commits the prohibited acts during the performance of his or
her official duties or in relation to his or her public positions; chanroblesvirtualawlibrary

(3) that he or she causes undue injury to any party, whether the government or a
private party; and

(4)  that the public officer has acted with manifest partiality, evident bad faith or gross
inexcusable negligence.

We sustain the decision of the Sandiganbayan holding petitioners liable for causing
undue injury to the Government in appointing Dr. Posadas as TMC Project Director with
evident bad faith.

Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn
duty through some motive or intent or ill will; it partakes of the nature of fraud.33It
contemplates a state of mind affirmatively operating with furtive design or some motive
of self interest or ill will for ulterior purposes.34  Evident bad faith connotes a manifest
deliberate intent on the part of the accused to do wrong or cause damage.35

In Pecho v. Sandiganbayan,36 the Court en banc defined injury as “any wrong or

damage done to another, either in his person, or in his rights, reputation or property;
the invasion of any legally protected interests of another.” It must be more than
necessary or are excessive, improper or illegal. It is required that the undue injury
caused by the positive or passive acts of the accused be quantifiable and demonstrable
and proven to the point of moral certainty.37  “Undue” means illegal, immoral, unlawful,
void of equity and moderations.38

In this case, that petitioners acted in evident bad faith was duly established by the
evidence.  We recall that the MOA was executed on September 18, 1995 and became
effective upon the signature of the parties.39  Between that date and the China trip
scheduled in the first week of November (the invitation was dated July 30, 1995), Dr.
Posadas could have already appointed the Project Director and Consultant as indeed the
retroactive appointment was even justified by them because supposedly  “project
activities” have already started by September 18, 1995.   And yet, he waited until the
China trip so that in his absence the designated OIC Chancellor, Dr. Dayco, would be
the one to issue the appointment. Apparently, Dr. Posadas’ appointment by Dr. Dayco
in an OIC capacity was pre-conceived. Prof. Jose Tabbada testified that when he was
summoned by Dr. Posadas to his office, the latter asked him how he (Posadas) could be
appointed TMC Project Director.  He then suggested that Dr. Dayco as OIC Chancellor
can appoint him to the position and even drafted the memo for this purpose.  He
admitted that he gave such advice with some reservations but it turned out to have
been pursued by petitioners.40

However, the Sandiganbayan ruled that the delegated authority of the OIC Chancellor
has limitations and did not include the power to appoint.

Section 204 of the Government Accounting and Auditing Manual (Volume I on

Government Auditing Rules and Regulations) provides: cralavvonlinelawlibrary

Sec. 204. Appointment issued by an officer-in-charge. --  A person designated in an

acting capacity  may be differentiated from one who is designated merely as an Officer-
in-Charge (OIC).  In the latter case, the OIC enjoys limited powers which, are confined
to functions of administration and ensuring that the office continues its usual activities. 
The OIC may not be deemed to possess the power to appoint employees as the same
involves the exercise of discretion which is beyond the power of an OIC (CSC Res.
1692, Oct. 20, 1978).

To prove the alleged practice in the University of an OIC appointing a Chancellor to a

certain position, petitioners presented copies of temporary appointment papers issued
by OIC Chancellor Paz G. Ramos to former Chancellor Ernesto G. Tabujara who was
appointed Consultant-In-Charge of the Campus Planning, Development and
Maintenance Office, UP Diliman with P2,000.00 monthly honorarium effective January
1, 1986 to December 31, 1986.   It must be noted, however, that the said appointment
was made by the OIC “by authority of the Board of Regents” and these were actually
approved and signed by then Secretary of the University, Prof. Martin V. Gregorio, while
the renewal appointment was approved by Secretary of the University Prof. Emerlinda
R. Roman. Both Gregorio and Roman signed the Notification of Approval of Temporary
Appointment.41

Petitioners nonetheless argue that the appointments made by Dr. Dayco were valid on
the basis of Section 9(a) of the Resolution of the BOR reorganizing UP into the UP
System adopted at its 828th meeting on December 21, 1972, as amended at its
863rd meeting on July 31, 1975.  Under said resolution, the BOR authorized the
Chancellor of an autonomous university of the UP System to delegate his functions and
responsibilities which have been assigned or delegated to him by the BOR, unless
instructed otherwise by the BOR.  It also enumerated those functions that may not be
delegated, among which is: cralavvonlinelawlibrary

B. Functions That May Not Be Delegated

xxxx

f.    Authority to approve the following appointments –

(1) those covered in II, C, 1, and e of the President’s Memorandum Circular No. 30
dated August 28, 1975; and

(2) those covered in II, C, 4, a through c of the aforecited memorandum circular of the
President; chanroblesvirtualawlibrary

x x x x42
MC No. 30 dated August 28, 1975 issued by former UP President Onofre D. Corpuz
provided for “Operating Guidelines on Appointments and Related Personnel
Transactions in the University System,” which specifically delineated the authority to
appoint of university officials.

The pertinent provisions of said MC No. 30 read: cralavvonlinelawlibrary

C. Delegated Authority of the Chancellor to Appoint

1.   The Chancellor of an autonomous University approves appointments to the

following positions: cralavvonlinelawlibrary

a. directors or heads and assistant directors or assistant

heads of units supervised by or attached to principal
units, except those whose starting salaries are equal to
or higher than that of associate professor; chanroblesvirtualawlibrary

b. program or project directors; chanroblesvirtualawlibrary

xxxx

5.   The Chancellor approves the appointment of personnel, regardless of rank or salary
range, incidental to employment in research projects, study and training programs and
other programs or projects undertaken in collaboration with, or with the support
of, public or private institutions or persons.
TYPES OF APPOINTMENT/PERSONNEL ACTION   COVERED: cralavvonlinelawlibrary

Appointment as used in II, C, 5 above includes all types of appointment and

personnel action pertaining to appointment, except transfer to permanency of
faculty members. (Emphasis supplied.)

According to petitioners, since appointments falling under II, C, 5 was not specifically
mentioned in the enumeration of those functions of the Chancellor that may not be
delegated, it follows that such appointments may be validly delegated, as in this case,
the appointments issued by OIC Chancellor Dayco to Dr. Posadas as TMC Project
Director and Consultant.  Moreover, it is argued that in the BOR Resolution itself, the
designated OIC Chancellor was granted full powers: cralavvonlinelawlibrary

E.  Extent of Authority of One Appointed in an Acting/Officer-in-Charge Capacity

One appointed/designated, in an acting or officer-in-charge capacity, to the office of

chancellor shall discharge all the functions of the position unless instructed otherwise by
the regular incumbent, and in any case, subject to the latter’s instructions, to the
policies of the Board of Regents and to the provisions of D hereinabove and of F herein
below; provided, that “all the functions of the position” as used in and for purposes of
this resolution shall be construed as inclusive of all the functions assigned to the
position by competent University authority and all such functions as usually pertain, or
are “inherent,” to the position although not expressly assigned thereto by competent
University authority.

Petitioners’ argument fails to persuade.

It must be emphasized that the subject appointments involve not an ordinary personnel
or faculty member but the Chancellor himself who was also vested with administrative
supervision over the institution implementing the TMC Project, TMC.  Note that while II,
C, 5 in MC No. 30 speaks of “personnel, regardless of rank or salary range, incidental to
employment,” the same could not possibly refer to the Chancellor himself.  This is
evident from the exception provided in II, B, 1where it is the President himself who
approves the appointment, viz: cralavvonlinelawlibrary

B.   Delegated Authority of the President to Appoint

1.   The President approves the appointment of officers and employees (including
faculty members if there are any) who are not included in or covered by the
enumerations in II, A above and of those who are covered in II, C, 5 below who
are:

a.   in or directly under the Office of the President; or

b.   in University-wide units; or
c.   in other offices or units, academic or non-academic, that are not part of any
autonomous University; chanroblesvirtualawlibrary

to the same extent and under the same conditions stipulated in II, C below for the
delegated authority of the Chancellor of an autonomous University to appoint.

TYPES OF APPOINTMENT/PERSONNEL ACTION COVERED: cralavvonlinelawlibrary

Appointment as used in II, B, 1 above includes all types of appointment and

personnel action pertaining to appointment, except transfer to permanency of faculty
members.  (Emphasis supplied.)

Considering that it is the Chancellor himself who is being appointed to a project covered
in II, C, 5, the BOR resolution on the authority of the Chancellor to delegate his
functions may not be invoked because the situation is covered by II, B, 1, the
Chancellor being directly under the administrative supervision of the UP President as
the Chief Executive Officer of the University. The Chancellor, on the other hand, is the
executive officer and the head of the faculty of the Constituent University, who likewise
performs other functions that the BOR or the President may delegate to her/him.  This
is clearly indicated in the organizational structure of the UP Diliman, sourced from
the Faculty Manual of the University of the Philippines Diliman43: cralavvonlinelawlibrary

* (see flowchart Decision G.R. Nos. 168951& 169000 page 18.)

Thus, even granting that the subject appointments in UP Diliman, an autonomous

educational institution, are not covered by Section 204 of the Government Accounting
and Auditing Manual, they are still invalid and illegal, because the delegated authority
to appoint in this case, involving as it does the Chancellor himself, pertains to the
President of the University. Indeed, the Chancellor cannot exercise the delegated
authority to appoint in the situations covered by II, C, 5 when he himself is the
appointee.  The designated OIC likewise had no authority to make the appointment.

As to the prohibition on government officials and employees, whether elected or

appointed, from holding any other office or position in the government, this is contained
in Section 7, Article IX-B of the 1987 Constitution, which provides: cralavvonlinelawlibrary

xxxx

Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government, or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.  (Emphasis supplied.)

The prohibition on dual employment and double compensation in the government

service is further specified under Sections 1 and 2, Rule XVIII of the Omnibus Rules
Implementing Book V of E.O. No. 292,44 as follows: cralavvonlinelawlibrary

Sec. 1. No appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations with original charters or their
subsidiaries, unless otherwise allowed by law or by the primary functions of his
position.

Sec. 2.  No elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law, xxx.

Under Section 2(d), Rule III of the Revised Omnibus Rules on Appointments and Other
Personnel Actions,45 appointments of personnel under Foreign-assisted projects shall be
issued and approved as coterminous with the project. The MOA itself provides that the
“services of the contractual personnel of the University for the Project shall be
discontinued upon its completion or termination.”  The appointment of Dr. Posadas as
TMC Project Director falls within the prohibition against holding of multiple positions
since there is no distinction in Section 7, Article IX-B as to the employment status, i.e.,
whether permanent, temporary or coterminous.  Petitioners failed to cite any law to
justify Dr. Posadas’ holding of concurrent positions as Chancellor and TMC Project
Director.

Another legal infirmity in the appointment of Dr. Posadas as TMC Project Director is the
fact that it was made retroactive, in violation of CSC MC No. 38, Series of 1993, the
Omnibus Guidelines on Appointments and Other Personnel Actions.  Section II, 5 B (7)
thereof reads:cralavvonlinelawlibrary

7.   Effectivity of Appointment

a.   The effectivity of an appointment shall be the date of actual assumption by the
appointee but not earlier than the date of issuance of the appointment, which is the
date of signing by the appointing authority.

b.   No appointment shall be made effective earlier than the date of issuance, except in
the case of change of status in view of qualifying in written examination, the effectivity
of which is the date of release of the result of the examination. However, the issuance
of such appointments shall be within the period of the temporary appointment or
provided the temporary appointment has not yet expired.

xxxx

Petitioners assert that appointment as TMC Project Director is not covered by the above
rule because it is in the nature of consultancy which is no longer required to be
submitted to the CSC.

A perusal of the duties and responsibilities of the TMC Project Director reveals that the
latter is tasked to perform the following: cralavvonlinelawlibrary

 Provide overall direction to the Project;

 Exercise supervision over Project personnel, including
the visiting experts;
 Approve the recruitment of personnel, disbursement of
Project funds, and changes in the Project activities and
schedule;
 Coordinate with other persons, agencies and institutions
involved in technology management;
 Perform such other functions as may be necessary to
ensure the efficient, orderly and effective management
and timely completion of the Project.46

The foregoing duties and responsibilities are not susceptible of partial performance or
division into parts as would justify its classification into lump sum work.  Neither are
these advisory in nature as would make it fall under the scope of a consultancy
service.47 The status of Dr. Posadas’ employment as TMC Project Director is a
coterminous one.  Under civil service rules, appointments of personnel under foreign-
assisted projects shall be issued and approved as coterminous with the project,48 that
is, they are considered employees for the duration of the project, in which case, the
name of the project and its completion date shall be indicated in the appointment.49 
This status of employment is to be distinguished from contract of services which covers
lump sum work or services such as janitorial, security or consultancy services, whose
appointments need not be submitted to the CSC for approval.

We also find no merit in petitioners’ argument that the element of injury caused to the
Government is lacking since the budget for TMC Project came from a foreign source and
hence no public funds are involved.  Under the MOA, UP shall be “principally
accountable for the project funds” which shall be released to and properly managed by
it to ensure the attainment of the Project’s objectives.  Clearly, these funds are in the
nature of “trust fund” which is defined by Presidential Decree No. 1445 as “fund that
officially comes in the possession of an agency of the government or of a public officer
as trustee, agent or administrator, or that is received for the fulfillment of some
obligation.50   A trust fund may be utilized only for the “specific purpose for which the
trust was created or the funds received.”51  The Sandiganbayan  thus correctly held that
the funds received for the TMC Project were impressed with public attributes or
character from the time it came into UP’s possession.

The disbursement and payment of the P30,000.00 monthly salary as TMC Project
Director to Dr. Posadas was improper, in view of his invalid appointment.  Said amount
represents the actual injury to the Government.The third requisite of Section 3(e) of
R.A. No. 3019, therefore, was sufficiently established by the prosecution.

Violation of Section 7(b),R.A. No. 6713

In Criminal Case No. 25466, the charge involves the private practice of profession
prohibited under Section 7(b) of R.A. No. 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees, by appointing Dr.
Posadas as Consultant of the TMC Project.  Said provision reads: cralavvonlinelawlibrary

SEC. 7. Prohibited Acts and Transactions.  – In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the
following shall constitute prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful: cralavvonlinelawlibrary

xxxx

(b)  Outside employment and other activities related thereto. – Public officials and
employees during their incumbency shall not: cralavvonlinelawlibrary

xxxx

(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided that such practice will not conflict or tend to conflict with
their official functions; or

xxxx

Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, a contract for
consultancy services is not covered by Civil Service Law, rules and regulations because
the said position is not found in the index of position titles approved by DBM. 
Accordingly, it does not need the approval of the CSC.52CSC MC No. 38, series of 1993
expressly provides that consultancy services are not considered government service
for retirement purposes.  A “consultant” is defined as one who provides professional
advice on matters within the field of his special knowledge or training.  There is no
employer-employee relationship in the engagement of a consultant but that of client-
professional relationship.53

Consultancy is deemed private practice of profession.  Under CSC Resolution

02126454 dated September 27, 2002, accepting a consultancy job under a part-time
status is subject to the following conditions: cralavvonlinelawlibrary

1. It must not violate the rule against holding multiple

positions;
2. The employee/officer must obtain permission or
authority from his/her head of agency as the same
constitutes private practice of profession;
3. The consultancy job must not conflict or tend to conflict
with his/her official functions; and
4. It must not affect the effective performance of his/her
duty.

In convicting petitioners, the Sandiganbayan cited Article 250 of the University Code,
which provides: cralavvonlinelawlibrary

Art. 250. No member of the academic staff, officer or employee of the University
shall, without permission from the President or the Chancellor, as the case may
be, practice any profession or manage personally any private enterprise which in any
way may be affected by the functions of his office, nor shall he be directly financially
interested in any contract with the University unless permitted by the Board.  Violation
of this provision shall be punishable by reprimand, suspension, or dismissal from the
service. (Emphasis supplied.)

Since Dr. Posadas and Dr. Dayco entered into the contract for consultancy services for
the TMC Project without prior permission from the University President, the
Sandiganbayan ruled that they violated Section 7(b) of R.A. No. 6713.

Petitioners contend that the section of the University Code cited by the Sandiganbayan
had already been superseded by the guidelines on outside activities promulgated by the
BOR at its 1031st Meeting on June 28, 1990.  Thus, in the Faculty Manual of the
University of the Philippines Diliman while the consultancy at TMC Project falls under
the coverage of “outside activities,” prior authorization by the University President is no
longer required.  The pertinent provisions of the manual read: cralavvonlinelawlibrary

10.3 Guidelines on Outside Activities  [1031st BOR meeting, June 28, 1990]

10.3.1  Coverage

Outside activities of University personnel shall include: limited practice of profession,

management of private enterprises, outside consultancy, secondment, teaching in other
educational or training institutions with which the University has a Memorandum of
Agreement, as well as research and other activities or projects under the auspices of
outside agencies which are not considered integral functions of the University.  Such
activities shall not be considered part of the regular workload of the personnel
concerned.

10.3.2  Prior Authorization

No member of the University personnel shall engage in outside activities without prior
authorization from the Chancellor, upon endorsement by the Dean, Director, or head of
office concerned, subject to the exigencies of the service.

xxxx

10.3.5   Penalties

Violation of any of the rules on outside activities shall be ground for disciplinary action. 
The immediate superior of the faculty/staff member shall immediately submit a report
on any violation of the rules to the Office of the Chancellor, through channels.

Disciplinary action on any faculty/staff member may be imposed, but only in

accordance with the law, and after due process.

10.3.6 Types

xxxx

c.  Limited/private practice of profession

Permission to engage in private practice of the profession of faculty members may be

granted only if such private practice may enhance their usefulness to the University or
improve their efficiency. [Art. 252]

The privilege of private practice, when granted, shall be for a definite period of one (1)
year, renewable at the discretion of the Chancellor for one-year periods, and under
such conditions as may be prescribed by him/her regarding the nature of the work, the
time of performance, and other circumstances.  [Art. 253; amended at BOR meetings:
839th, Nov. 29, 1973; 1031st, June 28, 1990]

The limited practice of one’s profession shall be governed by the following guidelines: cralavvonlinelawlibrary

1)   No member of the academic staff, officer or employee of the University shall,
without prior permission from the Chancellor, practice any profession or manage
personally any private enterprise which in any way may be affected by the functions of
her/his office; nor shall s/he be directly financially interested in any contract with the
University unless permitted by the Board.  Violation of this provision shall be
punishable by reprimand, suspension, or dismissal from the service.  [Art. 250;
amended at 1031st BOR meeting, June 28, 1990]

2)   Permission to engage in private practice of profession may granted provided that
such practice: cralavvonlinelawlibrary

 is NOT ADVERSE to the interests of the

University;
 shall NOT be conducted on official time;
 will improve the person’s efficiency and
usefulness to the University; and
 shall be subject to such other requirements
as may be imposed by law or University
rules and regulations.  (Emphasis supplied.)

Notwithstanding the supposed amendment of the rule on limited practice of profession

as contained in Article 250 of the University Code, we sustain the Sandiganbayan in
holding that petitioners should have obtained prior permission from the University
President for the contract for consultancy services in the TMC Project.  As with our
conclusion on the issue of authority to appoint the TMC Project Director, considering
that it is the Chancellor himself who was engaged as TMC Project Consultant, the
contract for consultancy services of Dr. Posadas should have been authorized by the
University President as the chief executive officer of the UP System.  To hold otherwise
is to leave the matter of determining the criteria or conditions for allowing the private
practice of profession provided in the University rules entirely to Dr. Posadas himself as
then UP Diliman Chancellor. Consistent with the Civil Service rules that prior
authorization by the head of the agency or institution must be sought by the
government officer or employee who desires to accept a consultancy job, it is no less
than the University President who should have given permission to Dr. Posadas, the
latter being directly under his administrative supervision.

Upon the established facts and applicable law and jurisprudence, we hold that no grave
abuse of discretion was committed by the Sandiganbayan in convicting petitioners for
violation of Section 7(b) of R.A. No. 6713.

Conspiracy

A conspiracy is proved by evidence of actual cooperation; of acts indicative of an

agreement, a common purpose or design, a concerted action or concurrence of
sentiments to commit the felony and actually pursue it.55For the accused to be held as
conspirators, it is not necessary to show that two or more persons met together and
entered into an explicit agreement setting out the details of an unlawful scheme or the
details by which an illegal objective is to be carried out.” Therefore, if it is proved that
two or more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently independent,
were in fact connected and cooperative, indicating a closeness of personal association
and a concurrence of sentiment, then a conspiracy may be inferred though no actual
meeting among them to concert means is proved.56

The Sandiganbayan’s finding of conspiracy rests on firm factual support.  Although Dr.
Dayco tried to downplay his participation, stating that he did not benefit from the
subject appointments and that there were many other appointment papers he had
signed in the absence of Dr. Posadas, it is clear as daylight that he had a principal and
indispensable role in effecting the said appointments. To stress the point, the
Sandiganbayan quoted the relevant portions of the Report submitted by the ADT, as
follows:cralavvonlinelawlibrary

It would be the height of naiveté to assume that before making the two (2)
appointments of respondent Posadas as Director of the TMC Project and as Consultant
to the TMC, respondent Dayco did not, in any manner, confer with respondent Posadas
about the matter.  To believe the claim of respondent Posadas that he just saw his
appointment papers at his desk when he came back from his trip is to tax human
credulity too much.

Under the said circumstances, the natural course of events necessarily points to
connivance between respondent Posadas and respondent Dayco in the making of the
questioned appointments.
Despite the claim of respondent Posadas that he just saw the appointment papers on
his desk when he returned from his trip, the admitted fact is that respondent Dayco
made those appointments for respondent Posadas and the latter acted upon the same
favourably as he (respondent Posadas) collected the compensation therein (Exhibits :E”
and “E-1”). In fact, as Chancellor, respondent Posadas approved his own Disbursement
Voucher for payment from the coffers of the University, covering his honoraria and
consultancy fees as Project Director for the TMC Project and as consultant to the TMC,
respectively (Exhibit “E-2”).57

Penalty

Any person guilty of violating Section 3(e) of R.A. No. 3019 is punishable with
imprisonment for not less than six (6) years and one (1) month nor more than fifteen
(15) years and perpetual disqualification from public office.58  Thus, the penalty
imposed by the Sandiganbayan which is an indeterminate penalty of nine (9) years and
one day as minimum and twelve (12) years as maximum, with the accessory penalty of
perpetual disqualification from public office, is in accord with law. Petitioners shall also
indemnify the Government of the Republic of the Philippines the amount of THREE
HUNDRED THIRTY SIX THOUSAND PESOS (P336,000.00) representing the
compensation/salaries paid to Dr. Posadas as TMC Project Director.

As to the offense defined in Section 7(b) of R.A. No. 6713, Section 11 of said law
provides that violations of Section 7 shall be punishable with imprisonment not
exceeding five (5) years, or a fine not exceeding five thousand  pesos (P5,000), or
both, and, in the discretion of the court, disqualification to hold public office. The
Sandiganbayan imposed the maximum penalty of five (5) years imprisonment and
disqualification to hold public office.

The Court is aware of the sentiments of the succeeding BOR who agonized while
deliberating whether to readmit petitioners into the faculty of UP Diliman, with majority
of the Regents lamenting the loss of two of its distinguished intellectuals and scientists
who had served the University for so long despite the meager compensation UP has to
offer compared to private educational institutions.59  The BOR eventually allowed them
to teach part-time in the TMC even waiving the conditions the previous BOR had
imposed -- a move perceived to be a first step in the healing process for the academic
community that was “torn into pieces” by the issue.

However, this Court’s mandate is to uphold the Constitution and the laws.Our
Constitution stresses that a public office is a public trust and public officers must at all
times be accountable  to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.60 These
constitutionally-enshrined principles, oft-repeated in our case law, are not mere
rhetorical flourishes or idealistic sentiments. They should be taken as working standards
by all in the public service.61

WHEREFORE, the petition is DISMISSED.  The Decision dated June 28, 2005 of the
Sandiganbayan in Criminal Cases Nos. 25465-66 is hereby AFFIRMED and UPHELD.

With costs against the petitioners.

SO ORDERED.

G.R. No. 183805, July 03, 2013

JAMES WALTER P. CAPILI, Petitioner, v. PEOPLE OF THE PHILIPPINES AND

SHIRLEY TISMO-CAPILI, Respondents.

DECISION

PERALTA, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court

seeking the reversal of the Decision1 dated February 1, 2008 and Resolution2 dated July
24, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 30444.
The factual antecedents are as follows: cralavvonlinelawlibrary

On June 28, 2004, petitioner was charged with the crime of bigamy before the Regional
Trial Court (RTC) of Pasig City in an Information which reads: cralavvonlinelawlibrary

On or about December 8, 1999, in Pasig City, and within the jurisdiction of this
Honorable Court, the accused being previously united in lawful marriage with Karla Y.
Medina-Capili and without said marriage having been legally dissolved or annulled, did
then and there willfully, unlawfully and feloniously contract a second marriage with
Shirley G. Tismo, to the damage and prejudice of the latter.

Contrary to law.3

Petitioner thereafter filed a Motion to Suspend Proceedings alleging that: (1) there is a
pending civil case for declaration of nullity of the second marriage before the RTC of
Antipolo City filed by Karla Y. Medina-Capili; (2) in the event that the marriage is
declared null and void, it would exculpate him from the charge of bigamy; and (3) the
pendency of the civil case for the declaration of nullity of the second marriage serves as
a prejudicial question in the instant criminal case.

Consequently, the arraignment and pre-trial were reset by the RTC of Pasig City, in
view of the filing of the Motion to Suspend Proceedings filed by petitioner.

In the interim, the RTC of Antipolo City rendered a decision declaring the voidness or
incipient invalidity of the second marriage between petitioner and private respondent on
the ground that a subsequent marriage contracted by the husband during the lifetime
of the legal wife is void from the beginning.

Thereafter, the petitioner accused filed his Manifestation and Motion (to Dismiss)
praying for the dismissal of the criminal case for bigamy filed against him on the ground
that the second marriage between him and private respondent had already been
declared void by the RTC.

In an Order4 dated July 7, 2006, the RTC of Pasig City granted petitioner’s Manifestation
and Motion to Dismiss, to wit: cralavvonlinelawlibrary

The motion is anchored on the allegation that this case should be dismissed as a
decision dated December 1, 2004 had already been rendered by the Regional Trial
Court of Antipolo City, Branch 72 in Civil Case No. 01-6043 (entitled: “Karla Medina-
Capili versus James Walter P. Capili and Shirley G. Tismo,” a case for declaration of
nullity of marriage) nullifying the second marriage between James Walter P. Capili and
Shirley G. Tismo and said decision is already final.

In the opposition filed by the private prosecutor to the motion, it was stated, among
others, that the issues raised in the civil case are not similar or intimately related to the
issue in this above-captioned case and that the resolution of the issues in said civil case
would not determine whether or not the criminal action may proceed.

WHEREFORE, after a judicious evaluation of the issue and arguments of the parties, this
Court is of the humble opinion that there is merit on the Motion to dismiss filed by the
accused as it appears that the second marriage between James Walter P. Capili and
Shirley G. Tismo had already been nullified by the Regional Trial Court, Branch 72 of
Antipolo City which has declared “the voidness, non-existent or incipient invalidity” of
the said second marriage. As such, this Court submits that there is no more bigamy to
speak of.

SO ORDERED.

Aggrieved, private respondent filed an appeal before the CA.

Thus, in a Decision5 dated February 1, 2008, the CA reversed and set aside the RTC’s
decision. The fallo reads:cralavvonlinelawlibrary

WHEREFORE, premises considered, the Order dated 07 July 2006 of the Regional Trial
Court of Pasig City, Branch 152 in Crim. Case No. 128370 is REVERSED and SET
ASIDE. The case is remanded to the trial court for further proceedings. No costs.
SO ORDERED.6 nadcralavvonlinelawlibrary

Petitioner then filed a Motion for Reconsideration against said decision, but the same
was denied in a Resolution7 dated July 24, 2008.

Accordingly, petitioner filed the present petition for review on certiorari alleging that: cralavvonlinelawlibrary

1. THERE IS NO LEGAL BASIS FOR THE COURT OF APPEALS TO DISREGARD

EXISTING JURISPRUDENCE PRONOUNCED BY THIS HONORABLE SUPREME
COURT AND TO REVERSE THE ORDER DATED JULY 7, 2006 OF THE TRIAL
COURT (REGIONAL TRIAL COURT, PASIG CITY, BRANCH 152) ISSUED IN
CRIMINAL CASE NO. 128370 GRANTING THE MOTION TO DISMISS THE
CASE OF BIGAMY AGAINST PETITIONER, INASMUCH AS THE ISSUANCE
OF THE SAID ORDER IS BASED ON THE FINDINGS AND/OR FACTS OF THE
CASE IN THE DECISION OF THE REGIONAL TRIAL COURT OF ANTIPOLO
CITY, BRANCH 72, IN CIVIL CASE NO. 01-6043 AND THE CONCLUDING
AND DISPOSITIVE PORTION IN THE SAID DECISION WHICH STATES
THAT, AFTER PERUSAL OF THE EVIDENCE ON RECORD AND THE
TESTIMONIES OF WITNESSES X X X, THE MARRIAGE BETWEEN
PETITIONER JAMES WALTER P. CAPILI AND PRIVATE RESPONDENT
SHIRLEY G. TISMO, IS HEREBY NULL AND VOID.

2. THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION

AMOUNTING TO LACK OF JURISDICTION IN HOLDING THAT THE
DECLARATION OF NULLITY OF MARRIAGE BETWEEN PETITIONER JAMES
WALTER P. CAPILI AND SHIRLEY G. TISMO BY THE REGIONAL TRIAL
COURT OF ANTIPOLO CITY, BRANCH 72 IN ITS DECISION IN CIVIL CASE
NO. 01-6043, IS ON THE GROUND THAT IT IS BIGAMOUS IN NATURE,
DESPITE THE ABSENCE OF ANY SUCH FINDINGS OR FACTS ON WHICH IT
IS BASED IN VIOLATION OF ARTICLE VIII, SECTION 14 OF THE 1987
CONSTITUTION, AND IN CONCLUDING THAT THE SAID DECLARATION OF
NULLITY OF MARRIAGE IS NOT A GROUND FOR DISMISSAL OF THE
BIGAMY CASE AGAINST THE PETITIONER, WHICH RULING IS NOT IN
ACCORDANCE WITH THE FACTS OF THE CASE OF THE SAID DECISION
AND WHICH IS CONTRARY TO APPLICABLE LAWS AND ESTABLISHED
JURISPRUDENCE.

3. THE CASE OF TENEBRO V. COURT OF APPEALS SPEAKS FOR ITSELF. IT IS

AN EXCEPTION TO EXISTING JURISPRUDENCE INVOLVING DECLARATION
OF NULLITY OF MARRIAGE AND IS APPLICABLE ONLY TO THE SET OF
FACTS IN THE SAID CASE, AND THE GROUND FOR DECLARATION OF
NULLITY OF MARRIAGE IS PSYCHOLOGICAL INCAPACITY, HENCE, THERE
IS NO LEGAL BASIS FOR ABANDONING EXISTING JURISPRUDENCE AS
WHERE IN THE INSTANT CASE THE GROUND FOR DECLARATION OF
NULLITY OF MARRIAGE IS VIOLATIVE OF ARTICLE 3 IN RELATION TO
ARTICLE 4 OF THE FAMILY CODE.

4. THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE

USE BY RESPONDENT SHIRLEY G. TISMO OF THE SURNAME “CAPILI” IS
ILLEGAL INASMUCH AS THE DECISION OF THE REGIONAL TRIAL COURT
OF ANTIPOLO CITY, BRANCH 72 IN CIVIL CASE NO. 01-6043 DECLARING
NULL AND VOID THE MARRIAGE BETWEEN JAMES WALTER P. CAPILI AND
SHIRLEY G. TISMO HAD LONG BECOME FINAL AND UNAPPEALABLE AS OF
THE DATE OF THE SAID DECISION ON DECEMBER 1, 2004 AND DULY
RECORDED IN THE RECORDS OF ENTRIES IN THE CORRESPONDING
BOOK IN THE OFFICE OF THE CIVIL REGISTRAR OF PASIG CITY AND THE
NATIONAL STATISTICS OFFICE.8

In essence, the issue is whether or not the subsequent declaration of nullity of the
second marriage is a ground for dismissal of the criminal case for bigamy.

We rule in the negative.

Article 349 of the Revised Penal Code defines and penalizes the crime of bigamy as
follows:cralavvonlinelawlibrary
Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper proceedings.

The elements of the crime of bigamy, therefore, are: (1) the offender has been legally
married; (2) the marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil Code;
(3) that he contracts a second or subsequent marriage; and (4) that the second or
subsequent marriage has all the essential requisites for validity.9

In the present case, it appears that all the elements of the crime of bigamy were
present when the Information was filed on June 28, 2004.

It is undisputed that a second marriage between petitioner and private respondent was
contracted on December 8, 1999 during the subsistence of a valid first marriage
between petitioner and Karla Y. Medina-Capili contracted on September 3, 1999.
Notably, the RTC of Antipolo City itself declared the bigamous nature of the second
marriage between petitioner and private respondent. Thus, the subsequent judicial
declaration of the second marriage for being bigamous in nature does not bar the
prosecution of petitioner for the crime of bigamy.

Jurisprudence is replete with cases holding that the accused may still be charged with
the crime of bigamy, even if there is a subsequent declaration of the nullity of the
second marriage, so long as the first marriage was still subsisting when the second
marriage was celebrated.

In Jarillo v. People,10 the Court affirmed the accused’s conviction for bigamy ruling that
the crime of bigamy is consummated on the celebration of the subsequent marriage
without the previous one having been judicially declared null and void, viz.: cralavvonlinelawlibrary

The subsequent judicial declaration of the nullity of the first marriage was
immaterial because prior to the declaration of nullity, the crime had already
been consummated. Moreover, petitioner’s assertion would only delay the
prosecution of bigamy cases considering that an accused could simply file a petition to
declare his previous marriage void and invoke the pendency of that action as a
prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to

[private complainant] had no bearing upon the determination of petitioner’s
innocence or guilt in the criminal case for bigamy, because all that is required
for the charge of bigamy to prosper is that the first marriage be subsisting at
the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed
valid until declared otherwise in a judicial proceeding. In this case, even if petitioner
eventually obtained a declaration that his first marriage was void ab initio, the point is,
both the first and the second marriage were subsisting before the first marriage was
annulled.11nadcralavvonlinelawlibrary

In like manner, the Court recently upheld the ruling in the aforementioned case and
ruled that what makes a person criminally liable for bigamy is when he contracts a
second or subsequent marriage during the subsistence of a valid first marriage. It
further held that the parties to the marriage should not be permitted to judge for
themselves its nullity, for the same must be submitted to the judgment of competent
courts and only when the nullity of the marriage is so declared can it be held as void,
and so long as there is no such declaration the presumption is that the marriage exists.
Therefore, he who contracts a second marriage before the judicial declaration of the
first marriage assumes the risk of being prosecuted for bigamy.12

Finally, it is a settled rule that the criminal culpability attaches to the offender upon the
commission of the offense, and from that instant, liability appends to him until
extinguished as provided by law.13 It is clear then that the crime of bigamy was
committed by petitioner from the time he contracted the second marriage with private
respondent. Thus, the finality of the judicial declaration of nullity of petitioner’s second
marriage does not impede the filing of a criminal charge for bigamy against him.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated
February 1, 2008 and Resolution dated July 24, 2008 of the Court of Appeals in CA-G.R.
CR No. 30444 are hereby AFFIRMED.

SO ORDERED.

G.R. No. 196842               October 9, 2013

ALFREDO ROMULO A. BUSUEGO, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S. BUSUEGO, Respondents.

DECISION

PEREZ, J.:

Before us is a petition for certiorari seeking to annul and set aside the Resolution of the Ombudsman
dated 17 April 20091 and Order dated October 2010,2 which directed the tiling of an Information for
Concubinage under Article 334 of the Revised Penal Code against petitioner Alfredo Romulo A.
Busuego (Alfredo).

We chronicle the facts thus.

Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334
of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women
and Their Children); and (3) Grave Threats under Article 282 of the Revised Penal Code, before the
Office of the Ombudsman against her husband, Alfredo, with designation Chief of Hospital, Davao
Regional Hospital, Apokon, Tagum City.

In her complaint, Rosa painted a picture of a marriage in disarray.

She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City. Their union
was blessed with two (2) sons, Alfred and Robert, born in 1976 and 1978, respectively. Sometime in
1983, their marriage turned sour. At this time, Rosa unearthed photographs of, and love letters
addressed to Alfredo from, other women. Rosa confronted Alfredo who claimed ignorance of the
existence of these letters and innocence of any wrongdoing.

Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would come home
late at night on weekdays and head early to work the next day; his weekends were spent with his
friends, instead of with his family. Rosa considered herself lucky if their family was able to spend a
solid hour with Alfredo.

Around this time, an opportunity to work as nurse in New York City, United States of America (US)
opened up for Rosa. Rosa informed Alfredo, who vehemently opposed Rosa’s plan to work abroad.
Nonetheless, Rosa completed the necessary requirements to work in the US and was scheduled to
depart the Philippines in March 1985.

Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to her working
abroad. Furious with Rosa’s pressing, Alfredo took his loaded gun and pointed it at Rosa’s right
temple, threatening and taunting Rosa to attempt to leave him and their family. Alfredo was only
staved off because Rosa’s mother arrived at the couple’s house. Alfredo left the house in a rage:
Rosa and her mother heard gun shots fired outside.

Because of that incident, Rosa acted up to her plan and left for the US. While in the US, Rosa
became homesick and was subsequently joined by her children who were brought to the US by
Alfredo. Rosa singularly reared them: Alfred, from grade school to university, while Robert, upon
finishing high school, went back to Davao City to study medicine and lived with Alfredo.

During that time his entire family was in the US, Alfredo never sent financial support. In fact, it was
Rosa who would remit money to Alfredo from time to time, believing that Alfredo had stopped
womanizing. Rosa continued to spend her annual vacation in Davao City.

Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home.
When Rosa asked Alfredo, the latter explained that Sia was a nurse working at the Regional
Hospital in Tagum who was in a sorry plight as she was allegedly being raped by Rosa’s brother-in-
law. To get her out of the situation, Alfredo allowed Sia to live in their house and sleep in the maids’
quarters. At that time, Rosa gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredo’s extra-marital relationships. Robert, who was
already living in Davao City, called Rosa to complain of Alfredo’s illicit affairs and shabby treatment
of him. Rosa then rang up Alfredo which, not surprisingly, resulted in an altercation. Robert executed
an affidavit, corroborating his mother’s story and confirming his father’s illicit affairs:

1. In varying dates from July 1997 to January 1998, Robert found it strange that Sia slept
with his father in the conjugal bedroom.

2. He did not inform his mother of that odd arrangement as he did not want to bring trouble to
their family.

3. Eventually, Sia herself confirmed to Robert that she was Alfredo’s mistress.

4. During this period of concubinage, Sia was hospitalized and upon her discharge, she and
Alfredo resumed their cohabitation.

5. The relationship between Alfredo and Sia ended only when the latter found another
boyfriend. 6. His father next took up an affair with Julie de Leon (de Leon) whom Robert met
when de Leon fetched Alfredo on one occasion when their vehicle broke down in the middle
of the road.

7. Robert read various Short Message Service (SMS) exchanges between Julie and Alfredo
on Alfredo’s mobile phone.

8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosa’s and Alfredo’s conjugal
dwelling and stayed in the conjugal room the entire nights thereof.

The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a joint
affidavit in support of Rosa’s allegations:

1. They had seen Sia sleep and stay overnight with Alfredo in the conjugal bedroom.

2. Sia herself, who called Alfredo "Papa," confirmed the two’s sexual relationship.

3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal dwelling and slept
overnight with Alfredo in the conjugal room.

As a result, Rosa and their other son Alfred forthwith flew to Davao City without informing Alfredo of
their impending return. Upon Rosa’s return, she gathered and consolidated information on her
husband’s sexual affairs.

Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, Rosa averred that
during the course of their marriage, apart from the marital infidelity, Alfredo physically and verbally
abused her and her family. On one occasion after Rosa confirmed the affairs, Alfredo threatened
their family, including other members of their household that he will gun them down should he
chance upon them in Tagum City. Lastly, on 22 March 2006, Alfredo purportedly dismissed house
helper Liza Diambangan and threatened her.

As expected, Alfredo, in his counter-affidavit, denied all accusations against him and alleged that:

1. Rosa, despite his pleas for them to remain and raise their family in the Philippines, chose
to live in the US, separate from him.

2. Rosa’s allegations that he had kept photographs of, and love letters from, other women,
were only made to create a cause of action for the suit for Legal Separation which Rosa filed
sometime in 1998.

3. It was highly improbable that he committed acts of concubinage with Sia and de Leon
since from the time he became Chief of Hospital of the Davao Regional Hospital in Tagum
City, he practically stayed all days of the work week in the hospital. The instances he went
home were few and far between, only to check on the house and provide for household
expenses.

4. When Robert returned to Davao City and lived with him, it became more impossible for
him to have shacked up with Sia and de Leon in the conjugal dwelling.
 5. With respect to his alleged relationship with Sia, without admitting to anything, that Sia, for
a time, may have lived in his and Rosa’s conjugal house, staying at the maids’ quarters.
However, at no instance did he keep Sia as his mistress in the conjugal dwelling.

6. As regards the dates of December 23, 24, 30 and 31, 2004 when he supposedly stayed
with de Leon in the conjugal room, Alfredo pointed out that said dates were busiest days of
the year in the hospital where his presence as Chief of Hospital is most required.

7. By Rosa’s own admission, she first learned of Alfredo’s alleged concubinage in 1997, and
yet she still continued with her yearly visits to Alfredo in Davao City. Those instances ought
to be construed as condonation of the concubinage.

8. Significantly, the alleged concubines, Sia and de Leon, were not impleaded along with
Alfredo as party-respondents in the complaint in violation of Article 344 of the Revised Penal
Code.

Alfredo made short shrift of Rosa’s charges of violation of Republic Act No. 9262 and Grave Threats.
He claimed that, at no time, did he threaten, the lives or, to harm his wife, their family and members
of their household. He only berated the help for perpetrating gossip about his behavior and conduct.

In their subsequent exchange of responsive pleadings, Rosa maintained Alfredo’s culpability, and
naturally, Alfredo claimed innocence.

In the course thereof, the procedural issue of Rosa’s failure to implead Sia and de Leon as
respondents cropped up. Alfredo insisted that Rosa’s complaint ought to be dismissed for failure to
implead his alleged concubines as respondents.

Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where both
Rosa and Alfredo were represented by their respective counsels:

x x x Rosa was apprised of the need to implead the two alleged mistresses in the complaint for
Concubinage pursuant to Article 344 of the Revised Penal Code. Although Alfredo objected to the
amendment of the complaint, at this point in time, due to the alleged procedural lapse committed by
Rosa, this Office explained to the parties that the position of Alfredo would just prolong the conduct
of the preliminary investigation since Rosa can just re-file her complaint. The doctrine of res judicata
does not apply in the preliminary investigation stage. Hence, the counsel for Rosa was directed to
submit to this Office the addresses of the alleged mistresses so that they could be served with the
Order directing them to file their counter-affidavits.

Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon and Emy
Sia. x x x.3

On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and de Leon as party-
respondents in the complaint for Concubinage and directing them to submit their respective counter-
affidavits within a period of time. Copies of the Joint Order were mailed to Sia’s and de Leon’s last
known addresses, as provided by Rosa to the Ombudsman.

Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint Order sent to
Sia’s last known address was returned to the Ombudsman with the notation on the Registry Return
Receipt No. 1624 "Return to Sender; removed," while a copy thereof to de Leon was received on 3
September 2008 by Ananias de Leon.5

Apparently still opposed to the Ombudsman’s ruling to simply amend the complaint and implead
therein Alfredo’s alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order with
Motion to Dismiss and/or Refer the charges to the Appropriate Provincial/City Prosecutor6 praying for
dismissal of the complaint for: (1) failure to implead the two mistresses in violation of Article 344 of
the Revised Penal Code; and in the alternative, (2) referral of the complaint to the Office of the City
Prosecutor as provided in OMB-DOJ Circular No. 95-001.

Rosa filed a Reply to that latest pleading of Alfredo.

On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of the
procedural issues:

Before dwelling into the merits of the case, this Office finds an urgent need to resolve the ancillary
issues raised by petitioner Dr. Busuego on: 1.) the alleged legal infirmity of Rosas’s initiatory
pleading by resorting to a procedural short cut which would result to the delay in the disposition of
this case; and 2.) the criminal charges imputed are not in relation to office, hence, the Office of the
Provincial/City Prosecutor shall investigate and prosecute this case pursuant to OMB-DOJ Joint
Circular No. 95-001, Series of 1995.

On the first issue, this Office observed that Busuego had already pointed out in his counter-Affidavit
the alleged deficiency in the complaint. Rosa also explained in her Reply that the names of the
mistresses were categorically mentioned in the complaint. She averred that this Office is empowered
to investigate and prosecute any act or omission of a public official or employee to the exclusion of
non-government employees. She stated that the inclusion of the alleged concubines in the
Information to be filed in court is a matter of procedure, within the competence of the investigating
prosecutor.

In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing
was conducted. It was explained in the said hearing the need to implead the alleged concubines in
this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa
was directed to submit the addresses of the alleged concubines. Busuego’s position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine
of res judicata does not apply in the preliminary investigation stage of the proceedings.

On the second issue, the motion of Busuego to refer this case to the Office of the City Prosecutor
was belatedly filed. Record would show that the motion praying for the referral of this case to the
Office of the City Prosecutor was filed on 17 July 2008, after the parties have already filed all their
pleadings and the case is now ripe for resolution. Further, referral to the said office is not mandatory
as cited in the said Joint Circular.7

In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only Alfredo and
Sia of Concubinage and directed the filing of an Information against them in the appropriate court:

WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation of Article
334 of the Revised Penal Code (concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y
ABRIO, and EMY SIA, are probably guilty thereof.

Let the herewith Information be filed in the appropriate court.

The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de Leon; 2.)
Grave Threats against Alfredo Romulo y Abrio; and 3.) violation of RA 9262 (Anti-Violence Against
Women and Children Act), are hereby DISMISSED for lack of merit.8

Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsman’s ruling on the
automatic inclusion of Sia as respondent in the complaint and their indictment for the crime of
Concubinage. Alfredo is adamant that Rosa’s complaint should have, at the outset, impleaded his
alleged concubines. Failing such, the Ombudsman cannot resort to automatic inclusion of party-
respondents, erroneously finding him and Sia prima facie culpable for Concubinage. For good
measure, Alfredo pointed out that from Rosa’s own allegations, she had condoned or pardoned
Alfredo’s supposed concubinage. Alfredo likewise submitted Liza S. Diambangan’s affidavit,
recanting her previous affidavit corroborating Rosa’s charges.

Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for
Reconsideration was filed out of time, and gave scant attention to Liza S. Diambangan’s affidavit of
recantation:

WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is hereby
DENIED. The findings in the questioned Resolution hereby remains undisturbed. Let the Information
for Concubinage be filed in the proper court against herein Busuego.9

Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in the
Ombudsman’s finding of probable cause to indict him and Sia for Concubinage. Alfredo’s badges of
grave abuse of discretion are the following:

1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-respondents in the
complaint;

2. The Ombudsman did not refer the complaint to the Department of Justice, considering that
the offense of Concubinage is not committed in relation to his office as Chief of Hospital;

3. The Ombudsman glossed over Rosa’s condonation of Alfredo’s supposed Concubinage

when she alleged in the complaint that she had known of Alfredo’s womanizing and believed
him to have changed his ways;
 4. The Ombudsman did not take into consideration the affidavit of recantation of Liza
Diambangan; and

5. The Ombudsman found probable cause to indict Alfredo and Sia for Concubinage.

We sustain the Ombudsman.

The Ombudsman has full discretionary authority in the determination of probable cause during a
preliminary investigation.10 This is the reason why judicial review of the resolution of the Ombudsman
in the exercise of its power and duty to investigate and prosecute felonies and/or offenses of public
officers is limited to a determination of whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction. Courts are not empowered to substitute their judgment
for that of the Ombudsman.11

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction.12 The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.13 In this regard, petitioner failed to demonstrate the
Ombudsman's abuse, much less grave abuse, of discretion.

First. Alfredo insists that the Ombudsman’s automatic inclusion, over his vehement objections of Sia
and de Leon as party-respondents, violates Article 344 of the Revised Penal Code and Section 5,
Rule 110 of the Rules of Court, which respectively provide:

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

Section 5. Who must prosecute criminal action. – xxx.

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse. The offended party cannot institute criminal prosecution without including the
guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or
pardoned the offenders.

We do not agree.

The submission of Alfredo is belied by the fact that the Ombudsman merely followed the provisions
of its Rules of Procedure. Thus:

Rule II
PROCEDURE IN CRIMINAL CASES

xxxx

Section 2. Evaluation – Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

xxxx
Section 4. Procedure – The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:

a) x x x

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondents does not file a counter-affidavit, the investigating officer may consider
the comment filed by him, if any, as his answer to the complaint. In any event, the
respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction.

Neither may a motion for a bill of particulars be entertained.

If respondent desires any matter in the complainant’s affidavit to be clarified, the

particularization thereof may be done at the time of the clarificatory questioning in the
manner provided in paragraph (f) of this section.

e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on the record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may
conduct a clarificatory hearing during which the parties shall be afforded the opportunity to
be present but without the right to examine or cross-examine the witness being questioned.
Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or
approval of the ombudsman in cases falling within the jurisdiction of the Sandiganbyan, or of the
proper Deputy Ombudsman in all other cases. (Emphasis supplied).

Notably, Rosa’s complaint contained not just the Concubinage charge, but other charges: violation of
Republic Act No. 9262 and Grave Threats. Upon the Ombudsman’s perusal, the complaint was
supported by affidavits corroborating Rosa’s accusations. Thus, at that stage, the Ombudsman
properly referred the complaint to Alfredo for comment. Nonetheless, while the Ombudsman found
no reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to discuss the
applicability of Article 344 of the Revised Penal Code, the issue having been insisted upon by
Alfredo.

Surely the procedural sequence of referral of the complaint to respondent for comment and
thereafter the holding of a clarificatory hearing is provided for in paragraph b, Section 2 and
paragraphs d and f, Section 4 of Rule II, which we have at the outset underscored. Thus did the
Ombudsman rule:

In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing
was conducted. It was explained in the said hearing the need to implead the alleged concubines in
this case pursuant to Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa
was directed to submit the addresses of the alleged concubines. Busuego’s position that the said
short cut procedure would delay the proceedings is misplaced. If the case will be dismissed based
on procedural infirmity, Rosa could still amend her complaint and re-file this case since the doctrine
of res judicata does not apply in the preliminary investigation stage of the proceedings.14

The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out
by Alfredo. We agree with the Ombudsman that it would be superfluous to dismiss the complaint
when amendment thereof is allowed by its Rules of Procedure15 and the Rules of Court.16
Second. Alfredo claims that the Ombudsman should have referred Rosa’s complaint to the
Department of Justice (DOJ), since the crime of Concubinage is not committed in relation to his
being a public officer. This is not a new argument.

The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary
investigation of crimes involving public officers, without regard to its commission in relation to office,
had long been settled in Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ,17 and
affirmed in subsequent cases:

The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan
Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses
committed by public officers or employees. The authority of the Ombudsman to investigate offenses
involving public officers or employees is concurrent with other government investigating agencies
such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its
primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from
any investigating agency of the government, the investigation of such cases.

In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases
against public officers involving violations of penal laws but if the cases fall under the exclusive
jurisdiction of the Sandiganbayan, the respondent Ombudsman may, in the exercise of its primary
jurisdiction take over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent
jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with
OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the
conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF THE

OMBUDSMAN

TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY

PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING
ATTORNEYS OF THE DEPARTMENT OFJUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND EMPLOYEES,

THE CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATION OFRESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS
AND THEIR ASSISTANTS.

x---------------------------------------------------------------------------------------x

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF
JUSTICE, discussion centered around the latest pronouncement of the SUPREME COURT on the
extent to which the OMBUDSMAN may call upon the government prosecutors for assistance in the
investigation and prosecution of criminal cases cognizable by his office and the conditions under
which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "AN ACT TO
STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS
AMENDED" and its implications on the jurisdiction of the office of the Ombudsman on criminal
offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on

jurisdiction between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, and
by procedural conflicts in the filing of complaints against public officers and employees, the conduct
of preliminary investigations, the preparation of resolutions and informations, and the prosecution of
cases by provincial and city prosecutors and their assistants as DEPUTIZED PROSECUTORS OF
THE OMBUDSMAN.

Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF
JUSTICE, in a series of consultations, have agreed on the following guidelines to be observed in the
investigation and prosecution of cases against public officers and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers and

employees IN RELATION TO OFFICE whether cognizable by the SANDIGANBAYAN or the
REGULAR COURTS, and whether filed with the OFFICE OF THE OMBUDSMAN or with the
 OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall be under the control and
supervision of the office of the OMBUDSMAN.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe
otherwise, offenses NOT IN RELATION TO OFFICE and cognizable by the REGULAR
COURTS shall be investigated and prosecuted by the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR, which shall rule thereon with finality.

3. Preparation of criminal information shall be the responsibility of the investigating officer

who conducted the preliminary investigation. Resolutions recommending prosecution
together with the duly accomplished criminal informations shall be forwarded to the
appropriate approving authority.

4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction over public officers
and employees and for effective monitoring of all investigations and prosecutions of cases
involving public officers and employees, the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR shall submit to the OFFICE OF THE OMBUDSMAN a monthly list of
complaints filed with their respective offices against public officers and employees.

xxxx

A close examination of the circular supports the view of the respondent Ombudsman that it is just an
internal agreement between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary
Investigation, effective December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations –

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper
court in their respective territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable ground to believe
that a crime has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the
complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of
such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the

prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file
the information against the respondent, or direct another assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties. The same Rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal
complaints filed with them for offenses cognizable by the proper court within their respective
territorial jurisdictions, including those offenses which come within the original jurisdiction of the
Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their
resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot
dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can
the prosecutor file an Information with the Sandiganbayan without being deputized by, and without
prior written authority of the Ombudsman or his deputy.

xxxx

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges
against any public officers or employees may be exercised by an investigator or by any provincial or
city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman
prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the
OMB-DOJ circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by
the Ombudsman to conduct the preliminary investigation for complaints filed with it because the
DOJ’s authority to act as the principal law agency of the government and investigate the commission
of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had
been held in the Natividad case citation omitted as not being contrary to the Constitution. Thus, there
is not even a need to delegate the conduct of the preliminary investigation to an agency which has
the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary
jurisdiction at any stage of the investigation. (Emphasis supplied).

In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who was charged
with coup d’etat for the occupation of Oakwood on 27 July 2003, the preliminary investigation
therefor was conducted by the DOJ. Honasan questioned the jurisdiction of the DOJ to do so,
proferring that it was the Ombudsman which had jurisdiction since the imputed acts were committed
in relation to his public office. We clarified that the DOJ and the Ombudsman have concurrent
jurisdiction to investigate offenses involving public officers or employees. Nonetheless, we pointed
out that the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the
investigation of such cases. Plainly, applying that ruling in this case, the Ombudsman has primary
jurisdiction, albeit concurrent with the DOJ, over Rosa’s complaint, and after choosing to exercise
such jurisdiction, need not defer to the dictates of a respondent in a complaint, such as Alfredo. In
other words, the Ombudsman may exercise jurisdiction to the exclusion of the DOJ.

Third. Alfredo next argues that Rosa had pardoned his concubinage, having admitted to knowing of
his womanizing and yet continuing with their relationship as demonstrated in Rosa’s annual visits to
him in Davao City.

We are not convinced.

Old jurisprudence has held that the cynosure in the question of whether the wife condoned the
concubinage lies in the wife’s "line of conduct under the assumption that she really believed [her
husband] guilty of concubinage:"

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the ‘conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed.’

xxxx

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted
above, clearly shows that there was a condonation on the part of the husband for the supposed ‘acts
of rank infidelity amounting to adultery’ committed by defendant-wife. Admitting for the sake of
argument that the infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to
come along with him, and the fact that she went with him and consented to be brought to the house
of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and
one night, and the further fact that in the second night they again slept together in their house
likewise as husband and wife — all these facts have no other meaning in the opinion of this court
than that a reconciliation between them was effected and that there was a condonation of the wife by
the husband. The reconciliation occurred almost ten months after he came to know of the acts of
infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that ‘condonation is
implied from sexual intercourse after knowledge of the other infidelity. Such acts necessarily implied
forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's guilt, her consent should operate as a
pardon of his wrong.’

In Tiffany’s Domestic and Family Relations, section 107 says:

‘Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.’

It has been held in a long line of decisions of the various supreme courts of the different states of the
U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the
offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27
Corpus Juris Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and
of the various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge
that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful,
deprives him, as alleged the offended spouse, of any action for legal separation against the
offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after
the commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be
rebutted by evidence (60 L. J. Prob. 73).18

Although the foregoing speaks of condonation of concubinage as a ground for legal separation, the
holding therein applies with equal force in a prosecution for concubinage as a felony. Indeed, Rosa’s
admission was that she believed her husband had stopped womanizing, not that she had knowledge
of Alfredo’s specific acts of concubinage with Sia and de Leon, specifically keeping them in the
conjugal dwelling. This admission set against the specific acts of concubinage listed in Article
33419 of the Revised Penal Code does not amount to condonation. Their continued cohabitation as
husband and wife construed from Rosa’s annual visits to Davao City is not acquiescence to Alfredo’s
relations with his concubines. On that score, we have succinctly held:

We can find nothing in the record which can be construed as pardon or condonation. It is true that
the offended party has to a considerable extent been patient with her husband's shortcomings, but
that seems to have been due to his promises of improvement; nowhere does it appear that she has
consented to her husband's immorality or that she has acquiesced in his relations with his
concubine.20

Fourth. Alfredo next grasps at Liza S. Diambangan’s affidavit of recantation to eliminate his probable
culpability for concubinage.

Again, we are not swayed by Alfredo’s asseverations.

We have generally looked with disfavor upon retraction of testimonies previously given in court.
Affidavits of recantation are unreliable and deserve scant consideration. The asserted motives for
the repudiation are commonly held suspect, and the veracity of the statements made in the affidavit
of repudiation are frequently and deservedly subject to serious doubt.21

In Firaza v. People, we intoned:

Merely because a witness says that what he had declared is false and that what he now says is true,
is not sufficient ground for concluding that the previous testimony is false. No such reasoning has
ever crystallized into a rule of credibility. The rule is that a witness may be impeached by a previous
contradictory statement x x x not that a previous statement is presumed to be false merely because
a witness now says that the same is not true. The jurisprudence of this Court has always been
otherwise, i.e., that contradictory testimony given subsequently does not necessarily discredit the
previous testimony if the contradictions are satisfactorily explained. [Citations omitted].

Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court
of justice in an open and free trial and under conditions precisely sought to discourage and forestall
falsehood simply because one of the witnesses who had given the testimony later on changed his
mind. Such a rule will make solemn trials a mockery and place the investigation of the truth at the
mercy of unscrupulous witnesses. Unless there be special circumstances which, coupled with the
retraction of the witness, really raise doubt as to the truth of the testimony given by him at the trial
and accepted by the trial judge, and only if such testimony is essential to the judgment of conviction,
or its elimination would lead the trial judge to a different conclusion, an acquittal of the accused
based on such a retraction would not be justified.22

In this case, Liza S. Diambangan’s testimony merely corroborates the still standing story of Robert
and Melissa Diambangan, the other helper in the Busuego household. Clearly, the two’s consistent
story may still be the basis of the Ombudsman’s finding of a prima facie case of concubinage against
Alfredo and Sia.

Finally. Despite his vigorous arguments, Alfredo claims that there is simply no basis for indicting him
and Sia for concubinage.

Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a husband:

(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under scandalous
circumstances, with a woman who is not his wife; and (3) cohabiting with a woman who is not his
wife in any other place.

The Ombudsman found a prima facie case against Alfredo and Sia based on the testimony of
Robert, Melissa S. Diambangan and Liza S. Diambangan that Alfredo had kept Sia in the conjugal
dwelling where Sia even stayed at the conjugal room. We completely agree with the Ombudsman’s
disquisition:

x x x. It is ingrained in human behavior that a child has love, respect and loyalty to his family and
would strive to keep the family harmonious and united. This is the very reason why Robert did not
inform his mother about his father’s infidelities during the time when his father was keeping his
mistress at the conjugal dwelling. A son would never turn against his father by fabricating such a
serious story which will cause his home to crumble, if such is not true. His natural instinct is to
protect his home, which he did when he kept silent for a long time. What broke the camel’s back was
the abusive treatment he allegedly suffered and the thought that things would change for the better if
his mom would intervene.

The story of Robert in his Affidavit was reinforced by the two house helpers Melissa S. Diambangan
and Liza S. Diambangan, who were employed by the family. Melissa was with the Busuego family in
their conjugal home in 1997. She left the family in 2005 but returned in 2006.  Liza started working
1âwphi1

with the family in 2002. Melissa revealed that it was Emy Sia who recruited her to work with the
Busuego family. They both attested to the fact that Alfredo and Emy Sia slept together in the
bedroom of Alfredo but Emy Sia would sleep in the maid’s quarter when Rosa and Alfred came
home for a visit in 1997. They recalled that Emy Sia calls Alfredo "papa". They narrated that Emy Sia
would even confide to them some private matters relating to her sexual proclivities with Alfredo.23

We further note that the presence of Sia at the Busuego household and her interim residence
thereat was not disputed nor explained. Alfredo just cavalierly declares that Sia may have stayed in
the conjugal dwelling, but never as his mistress, and Sia supposedly slept in the maids’ quarters.

While such a claim is not necessarily preposterous we hold that such is a matter of defense which
Alfredo should raise in court given that Rosa s complaint and its accompanying affidavits have
created a prima facie case for Concubinage against Alfredo and Sia.

WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April 2009
and 11 October 2010 are AFFIRMED.

SO ORDERED.

G.R. No. 179448, June 26, 2013

CARLOS L. TANENGGEE, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION
 DEL CASTILLO, J.:

Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court is
the December 12, 2006 Decision2 of the Court of Appeals (CA) in CA-G.R. CR No. 23653
affirming with modification the June 25, 1999 Decision3 of the Regional Trial Court
(RTC) of Manila, Branch 30, in Criminal Case Nos. 98-163806-10 finding Carlos L.
Tanenggee (petitioner) guilty beyond reasonable doubt of five counts of estafa through
falsification of commercial documents.  Likewise questioned is the CA’s September 6,
2007 Resolution4 denying petitioner’s Motion for Reconsideration5 and Supplemental
Motion for Reconsideration.6

Factual Antecedents

On March 27, 1998, five separate Informations7 for estafa through falsification of

commercial documents were filed against petitioner.  The said Informations portray the
same mode of commission of the crime as in Criminal Case No. 98-163806 but differ
with respect to the numbers of the checks and promissory notes involved and the dates
and amounts thereof, viz: cralavvonlinelawlibrary

That on or about July 24, 1997, in the City of Manila, Philippines, the said accused,
being then a private individual, did then and there wilfully, unlawfully and feloniously
defraud, thru falsification of commercial document, the METROPOLITAN BANK & TRUST
CO. (METROBANK), represented by its Legal officer, Atty. Ferdinand R. Aguirre, in the
following manner: herein accused, being then the Manager of the COMMERCIO BRANCH
OF METROBANK located at the New Divisoria Market Bldg., Divisoria, Manila, and taking
advantage of his position as such, prepared and filled up or caused to be prepared and
filled up METROBANK Promissory Note Form No. 366857 with letters and figures
reading “BD#083/97” after the letters reading “PN”, with figures
reading “07.24.97” after the word “DATE”, with the amount of P16,000,000.00 in words
and in figures, and with other words and figures now appearing thereon, typing or
causing to be typed at the right bottom thereof the name reading “ROMEO TAN”,
feigning and forging or causing to be feigned and forged on top of said name the
signature of Romeo Tan, affixing his own signature at the left bottom thereof
purportedly to show that he witnessed the alleged signing of the said note by Romeo
Tan, thereafter preparing and filling up or causing to be prepared and filled up
METROBANK CASHIER’S CHECK NO. CC 0000001531, a commercial document, with
date reading “July 24, 1997”, with the name reading “Romeo Tan” as payee, and with
the sum of P15,362,666.67 in words and in figures, which purports to be the proceeds
of the loan being obtained, thereafter affixing his own signature thereon, and
[directing] the unsuspecting bank cashier to also affix his signature on the said check,
as authorized signatories, and finally affixing, feigning and forging or causing to be
affixed, feigned and forged four (4) times at the back thereof the signature of said
Romeo Tan, thereby making it appear, as it did appear that Romeo Tan had
participated in the [preparation], execution and signing of the said Promissory Note and
the signing and endorsement of the said METROBANK CASHIER’S CHECK and that he
obtained a loan of P16,000,000.00 from METROBANK, when in truth and in fact, as the
said accused well knew, such was not the case in that said Romeo Tan did not obtain
such loan from METROBANK, neither did he participate in the preparation, execution
and signing of the said promissory note and signing and endorsement of said
METROBANK CASHIER’S CHECK, much less authorize herein accused to prepare,
execute and affix his signature in the said documents; that once the said documents
were forged and falsified in the manner above set forth, the said accused released,
obtained and received from the METROBANK the sum of P15,363,666.67 purportedly
representing the proceeds of the said loan, which amount, once in his possession, with
intent to defraud, he misappropriated, misapplied and converted to his own personal
use and benefit, to the damage and prejudice of the said METROBANK in the same sum
of P15,363,666.67, Philippine currency.

CONTRARY TO LAW.8

On May 27, 1998, the RTC entered a plea of not guilty for the petitioner after he
refused to enter a plea.9  The cases were then consolidated and jointly tried.

The proceedings before the RTC as aptly summarized by the CA are as follows: cralavvonlinelawlibrary

During the pre-trial, except for the identity of the accused, the jurisdiction of the court,
and that accused was the branch manager of Metrobank Commercio Branch from July
1997 to December 1997, no other stipulations were entered into.  Prosecution marked
its exhibits “A” to “L” and sub-markings.

xxxx

The prosecution alleged that on different occasions, appellant caused to be prepared

promissory notes and cashier’s checks in the name of Romeo Tan, a valued client of the
bank since he has substantial deposits in his account, in connection with the purported
loans obtained by the latter from the bank.  Appellant approved and signed the
cashier’s check as branch manager of Metrobank Commercio Branch.  Appellant affixed,
forged or caused to be signed the signature of Tan as endorser and payee of the
proceeds of the checks at the back of the same to show that the latter had indeed
endorsed the same for payment.  He handed the checks to the Loans clerk, Maria
Dolores Miranda, for encashment.  Once said documents were forged and falsified,
appellant released and obtained from Metrobank the proceeds of the alleged loan and
misappropriated the same to his use and benefit.  After the discovery of the irregular
loans, an internal audit was conducted and an administrative investigation was held in
the Head Office of Metrobank, during which appellant signed a written statement
(marked as Exhibit “N”) in the form of questions and answers.

The prosecution presented the following witnesses: cralavvonlinelawlibrary

Valentino Elevado, a member of the Internal Affairs [D]epartment of Metrobank[,]

testified that he conducted and interviewed the appellant in January 1998; that in said
interview, appellant admitted having committed the allegations in the Informations,
specifically forging the promissory notes; that the proceeds of the loan were secured or
personally received by the appellant although it should be the client of the bank who
should receive the same; and that all the answers of the appellant were contained in a
typewritten document voluntarily executed, thumbmarked, and signed by him (Exhibit
“N”).

Rosemarie Tan Apostol, assistant branch manager, testified that the signatures
appearing on the promissory notes were not the signatures of Romeo Tan; that the
promissory notes did not bear her signature although it is required, due to the fact that
Romeo Tan is a valued client and her manager accommodated valued clients; that she
signed the corresponding checks upon instruction of appellant; and that after signing
the checks, appellant took the same [which] remained in his custody.

Eliodoro M. Constantino, NBI Supervisor and a handwriting expert, testified that the
signatures appearing on the promissory notes and specimen signatures on the
signature card of Romeo Tan were not written by one and the same person.

Maria Dolores Miranda, a Loans Clerk at Metrobank Commercio Branch, testified that
several cashier’s checks were issued in favor of Romeo Tan; that appellant instructed
her to encash the same; and that it was appellant who received the proceeds of the
loan.

For his defense, appellant Carlos Lo Tanenggee testified that he is a holder of a Masters
degree from the Asian Institute of Management, and was the Branch Manager of
Metrobank Commercio Branch from 1994 until he was charged in 1998 [with] the
above-named offense.  He was with Metrobank for nine (9) years starting as assistant
manager of Metrobank Dasmariñas Branch, Binondo, Manila.  As manager, he oversaw
the day to day operations of the [branch], solicited accounts and processed loans,
among others.

Appellant claimed that he was able to solicit Romeo Tan as a client-depositor when he
was the branch manager of Metrobank Commercio.  As a valued client, Romeo Tan was
granted a credit line for forty million pesos ([P]40,000,000.00) by Metrobank.  Tan was
also allowed to open a fictitious account for his personal use and was assisted
personally by appellant in his dealings with the bank.  In the middle of 1997, Tan
allegedly opened a fictitious account and used the name Jose Tan.  Such practice for
valued clients was allowed by and known to the bank to hide their finances due to
rampant kidnappings or from the Bureau of Internal Revenue (BIR) or from their
spouses.

According to appellant, Tan availed of his standing credit line (through promissory
notes) for five (5) times on the following dates: 1) 24 July 1997 for sixteen million
pesos ([P]16,000,000.00), 2) 27 October 1997 for six million pesos ([P]6,000,000.00),
3) 12 November 1997 for three million pesos ([P]3,000,000.00), 4) 21 November 1997
for sixteen million pesos ([P]16,000,000,00), 5) 22 December 1997 for two million
pesos ([P]2,000,000.00).  On all these occasions except the loan on 24 July 1997 when
Tan personally went to the bank, Tan allegedly gave his instructions regarding the loan
through the telephone.  Upon receiving the instructions, appellant would order the
Loans clerk to prepare the promissory note and send the same through the bank’s
messenger to Tan’s office, which was located across the [street].  The latter would then
return to the bank, through his own messenger, the promissory notes already signed by
him.  Upon receipt of the promissory note, appellant would order the preparation of the
corresponding cashier’s check representing the proceeds of the particular loan, send the
same through the bank’s messenger to the office of Tan, and the latter would return
the same through his own messenger already endorsed together with a deposit slip
under Current Account No. 258-250133-7 of Jose Tan.  Only Cashier’s Check dated 21
November 1997 for sixteen million pesos ([P]16,000,000.00) was not endorsed and
deposited for, allegedly, it was used to pay the loan obtained on 24 July 1997. 
Appellant claimed that all the signatures of Tan appearing on the promissory notes and
the cashier’s checks were the genuine signatures of Tan although he never saw the
latter affix them thereon.

In the middle of January 1998, two (2) Metrobank auditors conducted an audit of the
Commercio Branch for more than a week.  Thereafter or on 26 January 1998, appellant
was asked by Elvira Ong-Chan, senior vice president of Metrobank, to report to the
Head Office on the following day.  When appellant arrived at the said office, he was
surprised that there were seven (7) other people present: two (2) senior branch
officers, two (2) bank lawyers, two (2) policemen (one in uniform and the other in plain
clothes), and a representative of the Internal Affairs unit of the bank, Valentino
Elevado.

Appellant claimed that Elevado asked him to sign a paper (Exhibit “N”) in connection
with the audit investigation; that he inquired what he was made to sign but was not
offered any explanation; that he was intimidated to sign and was threatened by the
police that he will be brought to the precinct if he will not sign; that he was not able to
consult a lawyer since he was not apprised of the purpose of the meeting; [and] that
“just to get it over with” he signed the paper which turned out to be a confession.  After
the said meeting, appellant went to see Tan at his office but was unable to find the
latter.  He also tried to phone him but to no avail.10

Ruling of the Regional Trial Court

After the joint trial, the RTC rendered a consolidated Decision11 dated June 25, 1999
finding petitioner guilty of the crimes charged, the decretal portion of which states:cralavvonlinelawlibrary

WHEREFORE, the Court finds the accused, Carlos Lo Tanenggee, guilty beyond
reasonable doubt of the offense of estafa thru falsification of commercial document[s]
charged in each of the five (5) Informations filed and hereby sentences him to suffer
the following penalties:cralavvonlinelawlibrary

1.   In Criminal Case No. 98-163806[,] to suffer the indeterminate penalty of

imprisonment from eight (8) years of prision mayor as minimum to twenty (20) years
of reclusion temporal as maximum including the accessory penalties provided by law.

2.   In Criminal Case No. 98-163807[,] to suffer the indeterminate penalty of

imprisonment from eight (8) years of prision mayor as minimum to twenty (20) years
of reclusion temporal as maximum including the accessory penalties provided by law,
and to indemnify Metrobank the sum of P16 Million with interest [at] 18% per annum
counted from 27 November 1997 until fully paid.

3.   In Criminal Case No. 98-163808[,] to suffer the indeterminate penalty of

imprisonment from eight (8) years of prision mayor as minimum to twenty (20) years
of reclusion temporal as maximum including the accessory penalties provided by law,
and to indemnify Metrobank the sum of P6 Million with interest [at] 18% per annum
counted from 27 October 1997 until fully paid.

4.   In Criminal Case No. 98-163809[,] to suffer the indeterminate penalty of

imprisonment from eight (8) years of prision mayor as minimum to twenty (20) years
of reclusion temporal as maximum including the accessory penalties provided by law,
and to indemnify Metrobank the sum of P2 Million with interest [at] 18% per annum
counted from 22 December 1997 until fully paid.

5.   In Criminal Case No. 98-163810[,] to suffer the indeterminate penalty of

imprisonment from eight (8) years of prision mayor as minimum to twenty (20) years
of reclusion temporal as maximum including the accessory penalties provided by law,
and to indemnify Metrobank the sum of P3 Million with interest [at] 18% per annum
[counted] from 12 November 1997 until fully paid.

Accused shall serve the said penalties imposed successively.

As mandated in Article 70 of the Revised Penal Code, the maximum duration of the
sentence imposed shall not be more than threefold the length of time corresponding to
the most severe of the penalties imposed upon him and such maximum period shall in
no case exceed forty (40) years.

SO ORDERED.12 nadcralavvonlinelawlibrary

Ruling of the Court of Appeals

Petitioner appealed the judgment of conviction to the CA where the case was docketed
as CA-G.R. CR No. 23653.  On December 12, 2006, the CA promulgated its
Decision13 affirming with modification the RTC Decision and disposing of the appeal as
follows:cralavvonlinelawlibrary

WHEREFORE, the appeal is DENIED for lack of merit and the Decision dated 25 June
1999 of the Regional Trial Court (RTC) of Manila, Branch 30 convicting the accused-
appellant Carlos Lo [Tanenggee] on five counts of estafa through falsification of
commercial documents is hereby AFFIRMED with MODIFICATION that in Criminal
Case No. 98-163806, he is further ordered to indemnify Metrobank the sum of [P]16
Million with interest [at] 18% per annum counted from 24 July 1997 until fully paid.

SO ORDERED.14

On December 29, 2006,15 petitioner moved for reconsideration, which the CA denied

per its September 6, 2007 Resolution.16

Hence, the present Petition for Review on Certiorari under Rule 45 of the Rules of Court
raising the basic issues of: (1) whether the CA erred in affirming the RTC’s admission in
evidence of the petitioner’s written statement based on its finding that he was not in
police custody or under custodial interrogation when the same was taken; and, (2)
whether the essential elements of estafa through falsification of commercial documents
were established by the prosecution.17

The Parties’ Arguments

While he admits signing a written statement,18 petitioner refutes the truth of the

contents thereof and alleges that he was only forced to sign the same without reading
its contents.  He asserts that said written statement was taken in violation of his rights
under Section 12, Article III of the Constitution, particularly of his right to remain silent,
right to counsel, and right to be informed of the first two rights.  Hence, the same
should not have been admitted in evidence against him.

On the other hand, respondent People of the Philippines, through the Office of the
Solicitor General (OSG), maintains that petitioner’s written statement is admissible in
evidence since the constitutional proscription invoked by petitioner does not apply to
inquiries made in the context of private employment but is applicable only in cases of
custodial interrogation.  The OSG thus prays for the affirmance of the appealed CA
Decision.

Our Ruling

We find the Petition wanting in merit.

Petitioner’s written statement is

admissible in evidence. 
The constitutional proscription against the admissibility of admission or confession of
guilt obtained in violation of Section 12, Article III of the Constitution, as correctly
observed by the CA and the OSG, is applicable only in custodial interrogation.

Custodial interrogation means any questioning initiated by law enforcement authorities

after a person is taken into custody or otherwise deprived of his freedom of action in
any significant manner.  Indeed, a person under custodial investigation is guaranteed
certain rights which attach upon the commencement thereof, viz: (1) to remain silent,
(2) to have competent and independent counsel preferably of his own choice, and (3) to
be informed of the two other rights above.19  In the present case, while it is undisputed
that petitioner gave an uncounselled written statement regarding an anomaly
discovered in the branch he managed, the following are clear: (1) the questioning was
not initiated by a law enforcement authority but merely by an internal affairs manager
of the bank; and, (2) petitioner was neither arrested nor restrained of his liberty in any
significant manner during the questioning.  Clearly, petitioner cannot be said to be
under custodial investigation and to have been deprived of the constitutional
prerogative during the taking of his written statement.

Moreover, in Remolona v. Civil Service Commission,20 we declared that the right to

counsel “applies only to admissions made in a criminal investigation but not to those
made in an administrative investigation.”  Amplifying further on the matter, the Court
made clear in the recent case of Carbonel v. Civil Service Commission:21

However, it must be remembered that the right to counsel under Section 12 of the Bill
of Rights is meant to protect a suspect during custodial investigation.  Thus, the
exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to
admissions made in a criminal investigation but not to those made in an administrative
investigation.22

Here, petitioner’s written statement was given during an administrative inquiry

conducted by his employer in connection with an anomaly/irregularity he allegedly
committed in the course of his employment.  No error can therefore be attributed to the
courts below in admitting in evidence and in giving due consideration to petitioner’s
written statement as there is no constitutional impediment to its admissibility.

Petitioner’s written statement was given

voluntarily, knowingly and intelligently.

Petitioner attempts to convince us that he signed, under duress and intimidation, an

already prepared typewritten statement.  However, his claim lacks sustainable basis
and his supposition is just an afterthought for there is nothing in the records that would
support his claim of duress and intimidation.

Moreover, “[i]t is settled that a confession [or admission] is presumed voluntary until
the contrary is proved and the confessant bears the burden of proving the contrary.”23 
Petitioner failed to overcome this presumption.  On the contrary, his written statement
was found to have been executed freely and consciously.  The pertinent details he
narrated in his statement were of such nature and quality that only a perpetrator of the
crime could furnish.  The details contained therein attest to its voluntariness.  As
correctly pointed out by the CA: cralavvonlinelawlibrary

As the trial court noted, the written statement (Exhibit N) of appellant is replete with
details which could only be supplied by appellant.  The statement reflects spontaneity
and coherence which cannot be associated with a mind to which intimidation has been
applied.  Appellant’s answers to questions 14 and 24 were even initialed by him to
indicate his conformity to the corrections made therein.  The response to every
question was fully informative, even beyond the required answers, which only indicates
the mind to be free from extraneous restraints.24

In People v. Muit,25 it was held that “[o]ne of the indicia of voluntariness in the
execution of [petitioner’s] extrajudicial [statement] is that [it] contains many details
and facts which the investigating officers could not have known and could not have
supplied without the knowledge and information given by [him].”

Also, the fact that petitioner did not raise a whimper of protest and file any charges,
criminal or administrative, against the investigator and the two policemen present who
allegedly intimidated him and forced him to sign negate his bare assertions of
compulsion and intimidation.  It is a settled rule that where the defendant did not
present evidence of compulsion, where he did not institute any criminal or
administrative action against his supposed intimidators, where no physical evidence of
violence was presented, his extrajudicial statement shall be considered as having been
voluntarily executed.26

Neither will petitioner’s assertion that he did not read the contents of his statement
before affixing his signature thereon “just to get it over with” prop up the instant
Petition.  To recall, petitioner has a masteral degree from a reputable educational
institution and had been a bank manager for quite a number of years.  He is thus
expected to fully understand and comprehend the significance of signing an
instrument.  It is just unfortunate that he did not exercise due diligence in the conduct
of his own affairs.  He can therefore expect no consideration for it.

Forgery duly established.

“Forgery is present when any writing is counterfeited by the signing of another’s name
with intent to defraud.”27  It can be established by comparing the alleged false
signature with the authentic or genuine one.  A finding of forgery does not depend
entirely on the testimonies of government handwriting experts whose opinions do not
mandatorily bind the courts.  A trial judge is not precluded but is even authorized by
law28 to conduct an independent examination of the questioned signature in order to
arrive at a reasonable conclusion as to its authenticity.

In this case, the finding of forgery on the signature of Romeo Tan (Tan) appearing in
the promissory notes and cashier’s checks was not anchored solely on the result of the
examination conducted by the National Bureau of Investigation (NBI) Document
Examiner.  The trial court also made an independent examination of the questioned
signatures and after analyzing the same, reached the conclusion that the signatures of
Tan appearing in the promissory notes are different from his genuine signatures
appearing in his Deposit Account Information and Specimen Signature Cards on file
with the bank.  Thus, we find no reason to disturb the above findings of the RTC which
was affirmed by the CA.  A rule of long standing in this jurisdiction is that findings of a
trial court, when affirmed by the CA, are accorded great weight and respect.  Absent
any reason to deviate from the said findings, as in this case, the same should be
deemed conclusive and binding to this Court.

No suppression of evidence on the

part of the prosecution. 

Petitioner claims that the prosecution should have presented Tan in court to shed light
on the matter.  His non-presentation created the presumption that his testimony if
given would be adverse to the case of the prosecution.  Petitioner thus contends that
the prosecution suppressed its own evidence.

Such contention is likewise untenable.  The prosecution has the prerogative to choose
the evidence or the witnesses it wishes to present.  It has the discretion as to how it
should present its case.29  Moreover, the presumption that suppressed evidence is
unfavorable does not apply where the evidence was at the disposal of both the defense
and the prosecution.30  In the present case, if petitioner believes that Tan is the
principal witness who could exculpate him from liability by establishing that it was Tan
and not him who signed the subject documents, the most prudent thing to do is to
utilize him as his witness.  Anyway, petitioner has the right to have compulsory process
to secure Tan’s attendance during the trial pursuant to Article III, Section 14(2)31 of the
Constitution.  The records show, however, that petitioner did not invoke such right.  In
view of these, no suppression of evidence can be attributed to the prosecution.

Petitioner’s denial is unavailing.

The Court is also not persuaded by the bare and uncorroborated allegation of petitioner
that the loans covered by the promissory notes and the cashier’s checks were
personally transacted by Tan against his approved letter of credit, although he
admittedly never saw Tan affix his signature thereto.  Again, this allegation, as the RTC
aptly observed, is not supported by established evidence.  “It is settled that denials
which are unsubstantiated by clear and convincing evidence are negative and self-
serving evidence.  [They merit] no weight in law and cannot be given greater
evidentiary value over the testimony of credible witnesses who testified on affirmative
matters.”32  The chain of events in this case, from the preparation of the promissory
notes to the encashment of the cashier’s checks, as narrated by the prosecution
witnesses and based on petitioner’s own admission, established beyond reasonable
doubt that he committed the unlawful acts alleged in the Informations.

Elements of falsification of commercial

documents established.

Falsification of documents under paragraph 1, Article 172 in relation to Article 171 of

the Revised Penal Code (RPC) refers to falsification by a private individual or a public
officer or employee, who did not take advantage of his official position, of public,
private or commercial document.  The elements of falsification of documents under
paragraph 1, Article 172 of the RPC are: (1) that the offender is a private individual or
a public officer or employee who did not take advantage of his official position; (2) that
he committed any of the acts of falsification enumerated in Article 171 of the
RPC;33 and, (3) that the falsification was committed in a public, official or commercial
document.

All the above-mentioned elements were established in this case.  First,  petitioner is a

private individual.  Second, the acts of falsification consisted in petitioner’s (1)
counterfeiting or imitating the handwriting or signature of Tan and causing it to appear
that the same is true and genuine in all respects; and (2) causing it to appear that Tan
has participated in an act or proceeding when he did not in fact so
participate.  Third, the falsification was committed in promissory notes and checks
which are commercial documents.  Commercial documents are, in general, documents
or instruments which are “used by merchants or businessmen to promote or facilitate
trade or credit transactions.”34  Promissory notes facilitate credit transactions while a
check is a means of payment used in business in lieu of money for convenience in
business transactions.  A cashier’s check necessarily facilitates bank transactions for it
allows the person whose name and signature appear thereon to encash the check and
withdraw the amount indicated therein.35

Falsification as a necessary
means to commit estafa. 

When the offender commits on a public, official or commercial document any of the acts
of falsification enumerated in Article 171 as a necessary means to commit another
crime like estafa, theft or malversation, the two crimes form a complex crime.  Under
Article 48 of the RPC, there are two classes of a complex crime.  A complex crime may
refer to a single act which constitutes two or more grave or less grave felonies or to an
offense as a necessary means for committing another.

In Domingo v. People,36 we held: cralavvonlinelawlibrary

The falsification of a public, official, or commercial document may be a means of

committing estafa, because before the falsified document is actually utilized to defraud
another, the crime of falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of public, official or
commercial document.  In other words, the crime of falsification has already existed. 
Actually utilizing that falsified public, official or commercial document to defraud
another is estafa.  But the damage is caused by the commission of estafa, not by the
falsification of the document.  Therefore, the falsification of the public, official or
commercial document is only a necessary means to commit estafa.

“Estafa is generally committed when (a) the accused defrauded another by abuse of
confidence, or by means of deceit, and (b) the offended party or a third party suffered
damage or prejudice capable of pecuniary estimation.”37  “[D]eceit is the false
representation of a matter of fact, whether by words or conduct, by false or misleading
allegations, or by concealment of that which should have been disclosed which deceives
or is intended to deceive another so that he shall act upon it to his legal injury.”38

The elements of estafa obtain in this case.  By falsely representing that Tan requested
him to process purported loans on the latter’s behalf, petitioner counterfeited or
imitated the signature of Tan in the cashier’s checks.  Through these, petitioner
succeeded in withdrawing money from the bank.  Once in possession of the amount,
petitioner thereafter invested the same in Eurocan Future Commodities.  Clearly,
petitioner employed deceit in order to take hold of the money, misappropriated and
converted it to his own personal use and benefit, and these resulted to the damage and
prejudice of the bank in the amount of about P43 million.

Taken in its entirety, the proven facts show that petitioner could not have withdrawn
the money without falsifying the questioned documents.  The falsification was,
therefore, a necessary means to commit estafa, and falsification was already
consummated even before the falsified documents were used to defraud the bank. The
conviction of petitioner for the complex crime of Estafa through Falsification of
Commercial Document by the lower courts was thus proper.

The Proper Imposable Penalty

The penalty for falsification of a commercial document under Article 172 of the RPC
is prision correccional in its medium and maximum periods and a fine of not more than
P5,000.00.

The penalty in estafa cases, on the other hand, as provided under paragraph 1, Article
315 of the RPC is prision correccional in its maximum period to prision mayor in its
minimum period39 if the amount defrauded is over P12,000.00 but does not exceed
P22,000.00.  If the amount involved exceeds the latter sum, the same paragraph
provides the imposition of the penalty in its maximum period with an incremental
penalty of one year imprisonment for every P10,000.00 but in no case shall the total
penalty exceed 20 years of imprisonment.

Petitioner in this case is found liable for the commission of the complex crime of estafa
through falsification of commercial document.  The crime of falsification was established
to be a necessary means to commit estafa.  Pursuant to Article 48 of the Code, the
penalty to be imposed in such case should be that corresponding to the most serious
crime, the same to be applied in its maximum period.  The applicable penalty therefore
is for the crime of estafa, being the more serious offense than falsification.

The amounts involved in this case range from P2 million to P16 million.  Said amounts
being in excess of P22,000.00, the penalty imposable should be within the maximum
term of six (6) years, eight (8) months and twenty-one (21) days to eight (8) years
of prision mayor, adding one (1) year for each additional P10,000.00.  Considering the
amounts involved, the additional penalty of one (1) year for each additional P10,000.00
would surely exceed the maximum limitation provided under Article 315, which is
twenty (20) years.  Thus, the RTC correctly imposed the maximum term of twenty (20)
years of reclusion temporal.

There is need, however, to modify the penalties imposed by the trial court as affirmed
by the CA in each case respecting the minimum term of imprisonment.  The trial court
imposed the indeterminate penalty of imprisonment from eight (8) years of prision
mayor as minimum which is beyond the lawful range.  Under the Indeterminate
Sentence Law, the minimum term of the penalty should be within the range of the
penalty next lower to that prescribed by law for the offense.  Since the penalty
prescribed for the estafa charge against petitioner is prision correccional  maximum
to prision mayor minimum, the penalty next lower would then be prision correccional in
its minimum and medium periods which has a duration of six (6) months and one (1)
day to four (4) years and two (2) months.  Thus, the Court sets the minimum term of
the indeterminate penalty at four (4) years and two (2) months of prision correccional. 
Petitioner is therefore sentenced in each case to suffer the indeterminate penalty of
four (4) years and two (2) months of prision correccional as minimum to twenty (20)
years of reclusion temporal as maximum.

WHEREFORE, the Petition is DENIED.  The Decision and Resolution of the Court of
Appeals in CA-G.R. CR No. 23653 dated December 12, 2006 and September 6, 2007,
respectively, are hereby AFFIRMED with the MODIFICATION that the minimum
term of the indeterminate sentence to be imposed upon the petitioner should be four
(4) years and two (2) months of prision correccional.

SO ORDERED.

G.R. No. 190475               April 10, 2013

JAIME ONG y ONG, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ.:

Before the Court is an appeal from the Decision1 dated 18 August 2009 of the Court of Appeals (CA),
which affirmed the Decision2 dated 06 January 2006 of the Regional Trial Court (RTC), Branch 37,
Manila. The RTC had convicted accused Jaime Ong y Ong (Ong) of the crime of violation of
Presidential Decree No. (P.O.) 1612, otherwise known as. the Anti-Fencing Law.

Ong was charged in an Information3 dated 25 May 1995 as follows:

That on or about February 17, 1995, in the City of Manila, Philippines. the said accused, with intent
of gain for himself or for another. did then and there willfully, unlawfully and feloniously receive and
acquire from unknown person involving thirteen (13) truck tires worth ₱65, 975.00, belonging to
FRANCISCO AZAJAR Y LEE, and thereafter selling One (1) truck tire knowing the same to have
been derived from the crime of robbery.

CONTRARY TO LAW.

Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits ensued, and the RTC found
him guilty beyond reasonable doubt of violation of P.D. 1612. The dispositive portion of its Decision
reads:

WHEREFORE, premises considered, this Court finds that the prosecution has established the guilt
of the accused JAIME ONG y ONG beyond reasonable doubt for violation of Presidential Decree No.
1612 also known as Anti-Fencing Law and is hereby sentenced to suffer the penalty of imprisonment
of 10 years and 1 day to 16 years with accessory penalty of temporary disqualification.

SO ORDERED.4

Dissatisfied with the judgment, Ong appealed to the CA. After a review of the records, the RTC’s
finding of guilt was affirmed by the appellate court in a Decision dated 18 August 2009.

Ong then filed the instant appeal before this Court.

The Facts

The version of the prosecution, which was supported by the CA, is as follows:

Private complainant was the owner of forty-four (44) Firestone truck tires, described as T494 1100
by 20 by 14. He acquired the same for the total amount of ₱223,401.81 from Philtread Tire and
Rubber Corporation, a domestic corporation engaged in the manufacturing and marketing of
Firestone tires. Private complainant's acquisition was evidenced by Sales Invoice No. 4565 dated
November 10, 1994 and an Inventory List acknowledging receipt of the tires specifically described by
their serial numbers. Private complainant marked the tires using a piece of chalk before storing them
inside the warehouse in 720 San Jose St., corner Sta. Catalina St., Barangay San Antonio Valley 1,
Sucat, Parañaque, owned by his relative Teody Guano. Jose Cabal, Guano's caretaker of the
warehouse, was in charge of the tires. After appellant sold six (6) tires sometime in January 1995,
thirty-eight (38) tires remained inside the warehouse.

On February 17, 1995, private complainant learned from caretaker Jose Cabal that all thirty-eight
(38) truck tires were stolen from the warehouse, the gate of which was forcibly opened. Private
complainant, together with caretaker Cabal, reported the robbery to the Southern Police District at
Fort Bonifacio.

Pending the police investigation, private complainant canvassed from numerous business
establishments in an attempt to locate the stolen tires. On February 24, 1995, private complainant
chanced upon Jong's Marketing, a store selling tires in Paco, Manila, owned and operated by
appellant. Private complainant inquired if appellant was selling any Model T494 1100 by 20 by 14 ply
Firestone tires, to which the latter replied in the affirmative. Appellant brought out a tire fitting the
description, which private complainant recognized as one of the tires stolen from his warehouse,
based on the chalk marking and the serial number thereon. Private complainant asked appellant if
he had any more of such tires in stock, which was again answered in the affirmative. Private
complainant then left the store and reported the matter to Chief Inspector Mariano Fegarido of the
Southern Police District.

On February 27, 1995, the Southern Police District formed a team to conduct a buy-bust operation
on appellant's store in Paco, Manila. The team was composed of six (6) members, led by SPO3
Oscar Guerrero and supervised by Senior Inspector Noel Tan. Private complainant's companion Tito
Atienza was appointed as the poseur-buyer.

On that same day of February 27, 1995, the buy-bust team, in coordination with the Western Police
District, proceeded to appellant's store in Paco, Manila. The team arrived thereat at around 3:00 in
the afternoon. Poseur-buyer Tito Atienza proceeded to the store while the rest of the team posted
themselves across the street. Atienza asked appellant if he had any T494 1100 by 20 by 14
Firestone truck tires available. The latter immediately produced one tire from his display, which
Atienza bought for ₱5,000.00. Atienza asked appellant if he had any more in stock.

Appellant then instructed his helpers to bring out twelve (12) more tires from his warehouse, which
was located beside his store. After the twelve (12) truck tires were brought in, private complainant
entered the store, inspected them and found that they were the same tires which were stolen from
him, based on their serial numbers. Private complainant then gave the prearranged signal to the
buy-bust team confirming that the tires in appellant's shop were the same tires stolen from the
warehouse.

After seeing private complainant give the pre-arranged signal, the buy-bust team went inside
appellant's store. However, appellant insisted that his arrest and the confiscation of the stolen truck
tires be witnessed by representatives from the barangay and his own lawyer. Resultantly, it was
already past 10:00 in the evening when appellant, together with the tires, was brought to the police
station for investigation and inventory. Overall, the buy-bust team was able to confiscate thirteen
(13) tires, including the one initially bought by poseur-buyer Tito Atienza. The tires were confirmed
by private complainant as stolen from his warehouse.5

For his part, accused Ong solely testified in his defense, alleging that he had been engaged in the
business of buying and selling tires for twenty-four (24) years and denying that he had any
knowledge that he was selling stolen tires in Jong Marketing. He further averred that on 18 February
1995, a certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck tires allegedly from
Dagat-dagatan, Caloocan City, for ₱3,500 each. Ong bought all the tires for ₱45,500, for which he
was issued a Sales Invoice dated 18 February 1995 and with the letterhead Gold Link Hardware &
General Merchandise (Gold Link).6

Ong displayed one (1) of the tires in his store and kept all the twelve (12) others in his bodega. The
poseur-buyer bought the displayed tire in his store and came back to ask for more tires. Ten minutes
later, policemen went inside the store, confiscated the tires, arrested Ong and told him that those
items were stolen tires.7

The RTC found that the prosecution had sufficiently established that all thirteen (13) tires found in
the possession of Ong constituted a prima facie evidence of fencing. Having failed to overcome the
presumption by mere denials, he was found guilty beyond reasonable doubt of violation of P.D.
1612.8

On appeal, the CA affirmed the RTC’s findings with modification by reducing the minimum penalty
from ten (10) years and one (1) day to six (6) years of prision correcional.9

OUR RULING

The Petition has no merit.

Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or anything of value which he knows,
or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has
been committed; (2) the accused, who is not a principal or on accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any article, item, object or anything of value, which has
been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should
have known that the said article, item, object or anything of value has been derived from the
proceeds of the crime of robbery or theft; and (4) there is, on the part of one accused, intent to gain
for oneself or for another.10
We agree with the RTC and the CA that the prosecution has met the requisite quantum of evidence
in proving that all the elements of fencing are present in this case.

First, the owner of the tires, private complainant Francisco Azajar (Azajar), whose testimony was
corroborated by Jose Cabal - the caretaker of the warehouse where the thirty-eight (38) tires were
stolen – testified that the crime of robbery had been committed on 17 February 1995. Azajar was
able to prove ownership of the tires through Sales Invoice No. 456511 dated 10 November 1994 and
an Inventory List.12 Witnesses for the prosecution likewise testified that robbery was reported as
evidenced by their Sinumpaang Salaysay13 taken at the Southern Police District at Fort
Bonifacio.14 The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila
on 27 February 1995.

Second, although there was no evidence to link Ong as the perpetrator of the robbery, he never
denied the fact that thirteen (13) tires of Azajar were caught in his possession. The facts do not
establish that Ong was neither a principal nor an accomplice in the crime of robbery, but thirteen (13)
out of thirty-eight (38) missing tires were found in his possession. This Court finds that the serial
numbers of stolen tires corresponds to those found in Ong’s possession.15 Ong likewise admitted
that he bought the said tires from Go of Gold Link in the total amount of ₱45,500 where he was
issued Sales Invoice No. 980.16

Third, the accused knew or should have known that the said article, item, object or anything of value
has been derived from the proceeds of the crime of robbery or theft. The words "should know"
denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in
performance of his duty to another or would govern his conduct upon assumption that such fact
exists.17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24)
years,18 ought to have known the ordinary course of business in purchasing from an unknown seller.
Admittedly, Go approached Ong and offered to sell the thirteen (13) tires and he did not even ask for
proof of ownership of the tires.19 The entire transaction, from the proposal to buy until the delivery of
tires happened in just one day.20 His experience from the business should have given him doubt as
to the legitimate ownership of the tires considering that it was his first time to transact with Go and
the manner it was sold is as if Go was just peddling the thirteen (13) tires in the streets.

In Dela Torre v. COMELEC,21 this Court had enunciated that:

Circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of
the sale may have been derived from the proceeds of robbery or theft. Such circumstances include
the time and place of the sale, both of which may not be in accord with the usual practices of
commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly
engaged in the business of selling goods may likewise suggest the illegality of their source, and
therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No.
1612 that "mere possession of any goods, . . ., object or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of fencing" — a presumption that is,
according to the Court, "reasonable for no other natural or logical inference can arise from the
established fact of . . . possession of the proceeds of the crime of robbery or theft." xxx.22

Moreover, Ong knew the requirement of the law in selling second hand tires.  Section 6 of P.D. 1612
1âwphi1

requires stores, establishments or entities dealing in the buying and selling of any good, article, item,
object or anything else of value obtained from an unlicensed dealer or supplier thereof to secure the
necessary clearance or permit from the station commander of the Integrated National Police in the
town or city where that store, establishment or entity is located before offering the item for sale to the
public. In fact, Ong has practiced the procedure of obtaining clearances from the police station for
some used tires he wanted to resell but, in this particular transaction, he was remiss in his duty as a
diligent businessman who should have exercised prudence.

In his defense, Ong argued that he relied on the receipt issued to him by Go.  Logically, and for all
1âwphi1

practical purposes, the issuance of a sales invoice or receipt is proof of a legitimate transaction and
may be raised as a defense in the charge of fencing; however, that defense is disputable.23 In this
case, the validity of the issuance of the receipt was disputed, and the prosecution was able to prove
that Gold Link and its address were fictitious.24 Ong failed to overcome the evidence presented by
the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the
prima facie presumption under Section 5 of P.D. 1612.

Finally, there was evident intent to gain for himself, considering that during the buy-bust operation,
Ong was actually caught selling the stolen tires in his store, Jong Marketing.

Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumption of fencing from
evidence of possession by the accused of any good, article, item, object or anything of value, which
has been the subject of robbery or theft; and prescribes a higher penalty based on the value of
the 25 property.
The RTC and the CA correctly computed the imposable penalty based on ₱5,075 for each tire
recovered, or in the total amount of ₱65,975. Records show that Azajar had purchased forty-four
(44) tires from Philtread in the total amount of ₱223,40 1.81.26 Section 3 (p) of Rule 131 of the
Revised Rules of Court provides a disputable presumption that private transactions have been fair
and regular. Thus, the presumption of regularity in the ordinary course of business is not overturned
in the absence of the evidence challenging the regularity of the transaction between Azajar ,and Phil
tread.

In tine, after a careful perusal of the records and the evidence adduced by the parties, we do not find
sufficient basis to reverse the ruling of the CA affirming the trial court's conviction of Ong for violation
of P.D. 1612 and modifying the minimum penalty imposed by reducing it to six ( 6) years of prision
correccional.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the
assailed Decision of the Court of Appeals in CA-G.R. CR No. 30213 is hereby AFFIRMED.

SO ORDERED.

G.R. No. 198400               October 7, 2013

FE ABELLA y PERPETUA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

REYES, J.:

This is a Petition for Review on Certiorari1 from the Decision2 and Resolution3 dated October 26,
2010 and August 11, 2011, respectively, of the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN
affirming with modifications the conviction4 by the Regional Trial Court RTC) of Misamis Oriental,
Cagayan de Oro City, Branch 39 of Fe Abella y Perpetua petitioner) for the crime of frustrated
homicide committed against his younger brother, Benigno Abella Benigno). The RTC sentenced the
petitioner to suffer an indeterminate penalty of six 6) years and one 1) day to eight 8) years of prision
mayor as minimum, to ten 10) years and one 1) day to twelve 12) years of prision mayor as
maximum, and to pay Benigno ₱100,000.00 as consequential damages, ₱10,000.00 for the medical
expenses he incurred, plus the costs of suit.5 The CA concurred with the RTC’s factual findings.
However, the CA modified the penalty imposed to six (6) months and one (1) day to six (6) years of
prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its medium
period as maximum. The CA also deleted the RTC’s award in favor of Benigno of (a) ₱10,000.00 as
actual damages corresponding to the medical expenses allegedly incurred; and (b) ₱100,000.00 as
consequential damages. In lieu of the preceding, the CA ordered the petitioner to pay Benigno
₱30,000.00 as moral damages and ₱10,000.00 as temperate damages.6

Antecedent Facts

On October 7, 1998, the petitioner, who at times worked as a farmer, baker and trisicad driver, was
charged with frustrated homicide in an Information7 which reads:

That on or about September 6, 1998, at 11:00 o’clock in the evening, more or less, at Sitio Puli,
Canitoan, Cagayan de Oro City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without any justifiable cause, did then and there willfully, unlawfully and
feloniously and with intent to kill, attack, assault, harm and hack one, BENIGNO ABELLA y
PERPETUA, with the use of a scythe, hitting the latter’s neck, thereby inflicting the injury described
below, to wit:

• hacking wound left lateral aspect neck; and

• incised wound left hand dorsal aspect thus performing all the acts of execution which would
produce the crime of homicide as a consequence, but nevertheless, did not produce it by
reason of some cause or causes independent of the will of the accused, that is the timely
and able intervention of the medical attendance rendered to the said victim.

Contrary to Article 249 in relation to 250 of the RPC.8

After the Information was filed, the petitioner remained at large and was only arrested by agents of
the National Bureau of Investigation on October 7, 2002.9
During the arraignment, the petitioner pleaded not guilty to the crime charged. Pre-trial and trial thus
proceeded.

The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita Abella11 (Amelita), Benigno’s
wife; (c) Alejandro Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto
Ardiente13 (Dr. Ardiente), a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro City, who
rendered medical assistance to Benigno after the latter was hacked by the petitioner.

The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno
was watching television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify
the petitioner, who was stirring trouble in a nearby store. Benigno and Amelita found the petitioner
fighting with Alejandro and a certain Dionisio Ybañes (Dionisio). Benigno was able to convince the
petitioner to go home. Benigno and Amelita followed suit and along the way, they dropped by the
houses of Alejandro and Dionisio to apologize for the petitioner’s conduct.

Benigno and Amelita were in Alejandro’s house when the petitioner arrived bringing with him two
scythes, one in each of his hands. Benigno instructed Alejandro and Dionisio to run away and the
latter two complied. The petitioner wanted to enter Alejandro’s house, but Benigno blocked his way
and asked him not to proceed. The petitioner then pointed the scythe, which he held in his left hand,
in the direction of Benigno’s stomach, while the scythe in the right hand was used to hack the latter’s
neck once.14 Benigno fell to the ground and was immediately taken to the hospital15 while the
petitioner ran to chase Alejandro.16 Benigno incurred an expense of more than ₱10,000.00 for
hospitalization, but lost the receipts of his bills.17 He further claimed that after the hacking incident, he
could no longer move his left hand and was thus deprived of his capacity to earn a living as a
carpenter.18

Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left lateral aspect neck 11 cm";
and (b) an "incised wound left hand dorsal aspect 4 cm".19 Benigno was initially confined in the
hospital on September 6, 1998 and was discharged on September 23, 1998.20 From Dr. Ardiente’s
recollection, since the scythe used in the hacking was not sterile, complications and infections could
have developed from the big and open wounds sustained by Benigno, but fortunately did not.21

The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando Fernandez23 (Fernando), a
friend of the petitioner; and (c) Urbano Cabag24 (Urbano).

The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to
October 2002, he and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan,
Cagayan de Oro City, where the hacking incident occurred, is about four (4) hours drive away.
Fernando testified that on September 6, 1998, he saw the petitioner gathering woods to make a
hut.25 Later in the evening, at around 5:00 p.m., Urbano spotted the petitioner drinking tuba in the
store of Clarita Perpetua.26

The RTC Ruling

On July 13, 2006, the RTC convicted the petitioner of the crime charged. The fallo of the
Judgment27 reads:

WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution
sufficient to prove the guilt of the [petitioner] beyond reasonable doubt, judgment is rendered finding
petitioner Fe Abella GUILTY beyond reasonable doubt of the crime of Frustrated Homicide as
defined and penalized by Article 249 in relation to Article 50 and Art. 6 of the Revised Penal Code.
Accordingly, petitioner Fe Abella is hereby sentenced to suffer an indeterminate penalty of Six (6)
years and One (1) day to Eight (8) years of prision mayor as minimum to Ten (10) years and One (1)
day to Twelve (12) years of prision mayor as maximum; to indemnify offended-party complainant
Benigno Abella the sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses incurred;
to pay the sum of ONE HUNDRED THOUSAND ([P]100,000.00) PESOS as consequential damages
and to pay the costs.

SO ORDERED.28

The RTC found the petitioner’s defenses of alibi and denial as weak. No disinterested witnesses
were presented to corroborate the petitioner’s claim that he was nowhere at the scene of the hacking
incident on September 6, 1998. Fernando and Urbano’s testimonies were riddled with
inconsistencies. The RTC accorded more credence to the averments of the prosecution witnesses,
who, without any ill motives to testify against the petitioner, positively, categorically and consistently
pointed at the latter as the perpetrator of the crime. Besides, medical records show that Benigno
sustained a wound in his neck and his scar was visible when he testified during the trial.
The RTC awarded ₱10,000.00 as actual damages to Benigno for the medical expenses he incurred
despite the prosecution’s failure to offer receipts as evidence. The petitioner was likewise ordered to
pay ₱100,000.00 as consequential damages, but the RTC did not explicitly lay down the basis for
the award.

The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the
prosecution failed to prove by clear and convincing evidence the existence of intent to kill which
accompanied the single hacking blow made on Benigno’s neck. The petitioner argued that the
hacking was merely accidental especially since he had no motive whatsoever which could have
impelled him to hurt Benigno, and that the infliction of merely one wound negates intent to kill.

The CA Ruling

On October 26, 2010, the CA rendered the herein assailed Decision30 affirming the petitioner’s
conviction for the crime of frustrated homicide ratiocinating that:

Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in
the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the
manner the crime was committed; and (e) the words uttered by the offender at the time the injuries
are inflicted by him on the victim.

Here, the intent to kill was sufficiently proven by the Prosecution. The petitioner attacked Benigno
with deadly weapons, two scythes. The petitioner’s blow was directed to the neck of Benigno. The
attack on the unarmed and unsuspecting Benigno was swift and sudden. The latter had no means,
and no time, to defend himself.

Dr. Roberto Ardiente, Jr., who attended and issued the Medical Certificate, testified that Benigno
suffered from a hack wound on the left neck, and an incised wound on the left hand palm. He said
that the wounds might have been caused by a sharp, pointed and sharp-edged instrument, and may
have resulted to death without proper medical attendance. Benigno was hospitalized for about a
month because of the injuries. The location of the wound (on the neck) shows the nature and
seriousness of the wound suffered by Benigno. It would have caused his death, had it not been for
the timely intervention of medical science.31 (Citations omitted and emphasis supplied)

However, the CA modified the sentence to "imprisonment of six (6) months and one (1) day to six (6)
years of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its
medium period, as maximum."32 The CA explained that:

Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated
homicide is reclusion temporal , or twelve (12) years and one (1) day to twenty (20) years. Under
Article 50 of the same Code, the penalty for a frustrated crime is one degree lower than that
prescribed by law. Thus, frustrated homicide is punishable by prision mayor , or six (6) years and
one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law, absent any mitigating or
aggravating circumstances, the maximum of the indeterminate penalty should be taken from the
medium period of prision mayor . To determine the minimum of the indeterminate penalty, prision
mayor should be reduced by one degree, which is prision correccional , with a range of six (6)
months and one (1) day to six (6) years. The minimum of the indeterminate penalty may be taken
from the full range of prision correccional.33 (Citation omitted)

The CA also deleted the RTC’s order for the payment of actual and consequential damages as there
were no competent proofs to justify the awards. The CA instead ruled that Benigno is entitled to
₱30,000.00 as moral damages and ₱10,000.00 as temperate damages,34 the latter being awarded
when some pecuniary loss has been incurred, but the amount cannot be proven with certainty.35

Issue

Hence, the instant Petition for Review on Certiorari36 anchored on the issue of whether or not the
RTC and the CA erred in rendering judgments which are not in accordance with law and applicable
jurisprudence and which if not corrected, will cause grave injustice and irreparable damage to the
petitioner.37

In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which
if considered, would justify either his acquittal or the downgrading of his conviction to less serious
physical injuries. The petitioner points out that after the single hacking blow was delivered, he ran
after Alejandro and Dionisio leaving Benigno behind. Had there been an intent to kill on his part, the
petitioner could have inflicted more wounds since at that time, he had two scythes in his hands.
Further, the CA erred in finding that the hacking blow was sudden and unexpected, providing
Benigno with no opportunity to defend himself. Benigno saw the petitioner arriving with weapons on
hand. Benigno could not have been unaware of the danger facing him, but he knew that the
petitioner had no intent to hurt him. Benigno thus approached the petitioner, but in the process, the
former was accidentally hit with the latter’s scythe.

The petitioner also cites Pentecostes, Jr. v. People38 where this Court found the downgrading of a
conviction from attempted murder to physical injuries as proper considering that homicidal intent was
absent when the accused shot the victim once and did not hit a vital part of the latter’s body.39

Further, as per Dr. Ardiente’s testimony, no complications resulted from Benigno’s hacking wound in
the neck and incised wound in the hand. Such being the case, death could not have resulted. The
neck wound was not "so extensive because it did not involve a big blood vessel on its vital structure"
while the incised wound in the hand, which only required cleansing and suturing, merely left a slight
scarring.40 Besides, Benigno was only confined for seventeen (17) days at the hospital and the
injuries he sustained were in the nature of less serious ones.

In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition.
The OSG stresses that the petitioner raises factual issues, which call for a re-calibration of evidence,
hence, outside the ambit of a petition filed under Rule 45 of the Rules of Court. Moreover, the
petitioner’s argument that the development of infections or complications on the wounds is a
necessary factor to determine the crime committed is specious. The petitioner’s intent to kill Benigno
can be clearly inferred from the nature of the weapon used, the extent of injuries inflicted and the
circumstances of the aggression. Benigno could have died had there been no timely medical
assistance rendered to him.

If it were the petitioner’s wish to merely get Benigno out of the way to be able to chase Alejandro and
Dionisio, a kick, fist blow, push, or the use of a less lethal weapon directed against a non-vital part of
the body would have been sufficient. However, the petitioner hacked Benigno’s neck with an
unsterile scythe, leaving behind a big, open and gaping wound.

This Court’s Ruling

The instant petition raises factual issues which are beyond the scope of a petition filed under Rule
45 of the Rules of Court.

Century Iron Works, Inc. and Benito Chua v. Eleto B. Bañas42 is instructive anent what is the subject
of review in a petition filed under Rule 45 of the Rules of Court, viz:

A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure
questions of law. It is only in exceptional circumstances that we admit and review questions of fact.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while
there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a
question to be one of law, the question must not involve an examination of the probative value of the
evidence presented by the litigants or any of them. The resolution of the issue must rest solely on
what the law provides on the given set of circumstances. Once it is clear that the issue invites a
review of the evidence presented, the question posed is one of fact.43 (Citations omitted)

In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the
petitioner had a homicidal intent when he hacked Benigno’s neck with a scythe and that the wounds
the latter sustained could have caused his death had there been no prompt medical intervention.
These questions are patently factual in nature requiring no less than a re-calibration of the
contending parties’ evidence.

It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of
exceptions, among which is, "when the judgment of the CA is premised on a misapprehension of
facts or a failure to notice certain relevant facts that would otherwise justify a different conclusion x x
x."44 However, the factual backdrop and circumstances surrounding the instant petition do not add up
to qualify the case as falling within the exceptions.

Even if this Court were to be exceptionally liberal and allow a review of factual issues, still, the
instant petition is susceptible to denial.

To successfully prosecute the crime of homicide, the following elements must be proved beyond
reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any
justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that
the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide
or infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound
inflicted on the victim is mortal and could cause the death of the victim without medical intervention
or attendance.45
In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The
prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent. And the intent to kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of wounds he inflicted on his victim.46

The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill
Benigno. The petitioner likewise invokes the doctrine in Pentecostes, Jr.47 to argue that homicidal
intent is absent in a case where the accused shot the victim only once when there was an
opportunity to do otherwise. The petitioner belabors his claim that had he intended to kill Benigno, he
could have repeatedly hacked him to ensure the latter’s death, and not leave right after the blow to
chase Alejandro instead.

The analogy is flawed.

In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The
attending physician certified that the injury would require medical attendance for ten days, but the
victim was in fact promptly discharged from the hospital the following day.

In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long
incised wound in his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente
testified that "it is possible to have complications resulting from these injuries because the wounds
were extensive and they were big and they were open wounds, so there is a possibility of infections
resulting from these kinds of wounds, and the instrument used was not a sterile instrument
contaminated with other things."48 No complications developed from Benigno’s wounds which could
have caused his death, but he was confined in the hospital for a period of 17 days from September
6, 1998 to September 23, 1998.

From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe
against Benigno’s neck was determinative of the petitioner’s homicidal intent when the hacking blow
was delivered. It does not require imagination to figure out that a single hacking blow in the neck
with the use of a scythe could be enough to decapitate a person and leave him dead. While no
complications actually developed from the gaping wounds in Benigno’s neck and left hand, it
perplexes logic to conclude that the injuries he sustained were potentially not fatal considering the
period of his confinement in the hospital. A mere grazing injury would have necessitated a lesser
degree of medical attention.

This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the
fact that he pursued Alejandro instead and refrained from further hacking Benigno. What could have
been a fatal blow was already delivered and there was no more desistance to speak of. Benigno did
not die from the hacking incident by reason of a timely medical intervention provided to him, which is
a cause independent of the petitioner’s will.1âwphi1

All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of
the petitioner of the crime charged.

The Court modifies the award of damages.

As to the civil liability of the petitioner, the CA was correct in deleting the payment of the
consequential damages awarded by the trial court in the absence of proof thereof. Where the
amount of actual damages cannot be determined because of the absence of supporting receipts but
entitlement is shown by the facts of the case, temperate damages may be awarded.49 In the instant
case, Benigno certainly suffered injuries, was actually hospitalized and underwent medical
treatment. Considering the nature of his injuries, it is prudent to award temperate damages in the
amount of ₱25,000.00, in lieu of actual damages.50

Furthermore, we find that Benigno is entitled to moral damages in the amount of ₱25,000.00.51 There
is sufficient basis to award moral damages as ordinary human experience and common sense
dictate that such wounds inflicted on Benigno would naturally cause physical suffering, fright, serious
anxiety, moral shock, and similar injury.52

WHEREFORE the instant petition is DENIED. The Decision and Resolution, dated October 26, 2010
and August 11 2011, respectively, of the Court of Appeals in CA-G.R. CR No. 00336-MIN are
AFFIRMED with MODIFICATIONS. The petitioner, Fe Abella y Perpetua is ORDERED TO PAY the
offended party moral damages in the amount of ₱25,000.00 and temperate damages in the amount
of ₱25,000.00. Further, the monetary awards for damages shall be subject to interest at the legal
rate of six percent ( 6%) p r annum from the date of finality of this Decision until fully paid.53

SO ORDERED.
G.R. No. 180418               August 28, 2013

REPUBLIC OF THE PHILIPPINES, PETITIONER,

vs.
LUZ REYES-BAKUNAWA, MANUEL BAKUNAWA, JR., MANUEL BAKUNAWA III, FERDINAND
E. MARCOS AND IMELDA R. MARCOS, RESPONDENTS.

DECISION

BERSAMIN, J.:

Assets or properties, to be considered as ill-gotten wealth, must be shown to have originated from
the Government itself, and should have been taken by former President Marcos, the members of his
immediate family, relatives, close subordinates and close associates by illegal means. That one
served as a government official or employee during the Marcos administration did not immediately
make her a close subordinate or close associate of former President Marcos.1

The Case

The Republic appeals the adverse decision rendered on April 10, 2002,2 and the resolution issued
on November 8, 2007,3 whereby the Sandiganbayan respectively dismissed the complaint for
reconveyance, reversion, accounting, restitution and damages filed against respondents in Civil
Case No. 0023, and denied the Republic’s motion for reconsideration.

Antecedents

Civil Case No. 0023 is an action for reconveyance, reversion, accounting, restitution and damages
brought by the Republic against respondents Luz Reyes-Bakunawa, Manuel Bakunawa, Jr., Manuel
Bakunawa III, President Marcos and First Lady Imelda R. Marcos for having allegedly acquired and
accumulated ill-gotten wealth consisting of funds and other property "in unlawful concert with one
another" and "in flagrant breach of trust and of their fiduciary obligations as public officers, with
grave abuse of right and power and in brazen violation of the Constitution and laws of the Republic
of the Philippines, thus resulting in their unjust enrichment." 4

The complaint alleged that respondent Luz Reyes-Bakunawa (Luz Bakunawa) had served as Imelda
Marcos’ Social Secretary during the Marcos administration; that it was during that period of her
incumbency in that position that Luz Bakunawa and her husband Manuel Bakunawa had acquired
assets, funds and other property grossly and manifestly disproportionate to her salaries and their
other lawful income;5 and that Luz Bakunawa, "by herself and/or in unlawful concert with Defendants
Ferdinand E. Marcos and Imelda R. Marcos, taking undue advantage of her position, influence and
connection with the latter Defendant spouses, for their benefit and unjust enrichment and in order to
prevent disclosure and recovery of assets illegally obtained, engaged in devices, schemes and
stratagems,"6 particularly:

1) acted as dummies, nominees, and/or agents of the Marcos spouses and, with the active
collaboration, knowledge and willing participation of the other defendants, established
several corporations engaged in a wide range of economic activities, such as construction
and cattle ranching;

2) secured favorable contracts with the Department of Public Works and Communications for
the construction of government projects through grossly undercapitalized corporations and
without complying with such usual requirements as public bidding, notice and publication of
contractors;

3) unlawfully acquired heads of cattle from the government dispersal program and raised
them on ranch lands encroaching on forest zones;

4) unlawfully encroached upon a mangrove-forested section in Masbate, Masbate and

converted it into a fishpond;

5) unlawfully amassed funds by obtaining huge credit lines from government financial
institutions, and incorporating into their contracts a cost-escalation adjustment provision to
justify collection of grossly arbitrary and unconscionable amounts unsupported by evidence
of increase in prices;

6) unlawfully imported hundreds of brand-new units of heavy equipment without paying

customs duties and other allied taxes amounting to millions of pesos, by falsely representing
said heavy equipment to be for official government use and selling them at very low prices to
avoid paying the required taxes.7
The Republic prayed for: (a) the reconveyance to itself of all funds and other property impressed
with constructive trust, as well as funds and other property acquired by respondents’ abuse of right
and power and through unjust enrichment, plus interests; (b) accounting of all beneficial interests in
funds, properties and assets in excess of their unlawful earnings; and (c) payment of actual
damages to be proved during the trial, moral damages of ₱50,000,000,000.00, temperate, nominal
and exemplary damages, attorney’s fees, litigation expenses and treble judicial costs.8

In their amended answer, the Bakunawas alleged that Luz Bakunawa was never the Social
Secretary of Imelda Marcos, but only an employee in the office of the Social Secretary; that the
properties acquired while Luz Bakunawa was employed in the Government were purchased with
honestly earned money and their acquisition was well within their legitimate income; that their family
owned and controlled five closed family corporations, namely: (1) Hi-Tri Development Corporation;
(2) 7-R Development Corporation; (3) 7-R Heavy Equipment, Inc.; (4) 7-R Sales Company, Inc.; and
(5) 7-R Ranch, Inc.; that their public works contracts were awarded to them in accordance with law;
that their acquisition of the heads of cattle were legal;9 and that they did not commit any breach of
trust while in public office, and did not possess illegally acquired funds that rendered them liable
under constructive trust in favor of the Republic.10

During the pre-trial on August 26, 1999, the Bakunawas admitted that: (a) the properties enumerated
in Annex A of the complaint11 belonged to or were connected to them, except three corporations,
namely:7-R International Trading, 7-R Enterprise, Inc., and 7-R Group of Companies; and (b) two
parcels of land that belonged to one of their children.12

Also during the pre-trial, the parties agreed on the following statement of the issues, to wit:

[t]he fundamental issue in this case is whether or not defendant Luz Bakunawa, considering her
position in Malacañang during the incumbency of President Ferdinand E. Marcos from 1970 up to
1986, occupied a confidential position in Malacañang, and was able to obtain contracts, run
businesses and acquire real properties as enumerated in the Complaint, using her office and the
influence of either or both of the [s]pouses Ferdinand and Imelda Marcos. The parties agreed that it
is the use of the influence of the Spouses Marcos that constitutes the essence of the case, and not
the failure to report the Statement of Assets and Liabilities or any other impropriety in the acquisition
of the properties herein, this case having been filed under the authority given to the Presidential
Commission on Good Government under Executive Orders No. 1,2, 14 and 14-a.13

After the Republic rested its case, respondents filed their motion to dismiss,14 insisting that the
Republic "has failed to establish even prima facie, its case and/or charges against them."15

Ruling of the Sandiganbayan

On April 10, 2002, the Sandiganbayan rendered its decision in favor of respondents, to wit:16

xxxx

As the evidence stands, neither the presence of the link with the Marcoses, nor the irrefutability of
the evidence against the Bakunawas for their misuse of that connection exists to justify the instant
action by the PCGG.

In view of all the above, this Court is constrained to grant the Motion to Dismiss, as it hereby
dismisses, the Complaint of the plaintiff for its failure to prove the essential allegations thereof.

The writs of sequestration issued and in force against the properties of the Bakunawas as
enumerated in Annex A of the Complaint (page 24 and p. 34, Vol. I, Record) are lifted, set aside and
declared of no further force and effect.

SO ORDERED.

The Sandiganbayan justified its decision in the following manner:

xxxx

Many of the plaintiff’s allegations in its specific averments (Article V) in the complaint are alluded to
in the evidence in a general fashion: engaging in cattle ranching and construction [para. 12 (a)],
entering into public works contracts [para.12 (b)], acquisition of mangrove areas [para. 12 (c)].
Nothing exists in the record, however, with respect to undercapitalization of the corporation, non-
compliance with bidding requirements, encroachment of ranches into forest zones, huge credit lines,
unjustified claims of cost escalation adjustment, and importation of heavy equipment.
Properties have been shown in the name of the spouses Bakunawa or either of them; testimonies
have been rendered about eviction, official documents presented with respect to public works
contracts, and finally, a Statement of Assets and Liabilities for the year 1985. Indeed, to hear some
of the witnesses, acts of oppression appear to have been committed if not by the wife then by the
husband Manuel Bakunawa. There is no indication however, that the acts of oppression involved the
improper use of influence on the part of the defendant Luz Bakunawa by reason of her having been
employed in the office of the Social Secretary of Imelda Marcos when the latter was the First Lady.

xxxx

An examination of the testimonial evidence for the Plaintiff, as summarized in the first part of this
decision, shows its concentration in the alleged dispossession of some landowners of their occupied
land in the province of Masbate by the defendants Bakunawa and the allegedly (sic) inaction by the
Bureau of Forestry and the police agencies thereon. Thus, the almost uniform allegation of
witnesses is that they were dispossessed of pasture lands which they believed they were entitled to
possess. There were documents presented to prove that, indeed, the witnesses had claims to these
pieces of property or had occupied them and had introduced improvements thereon.

The tenor of the testimony of the said witnesses is that while there was no force directly applied in
the dispossession of their properties, their lands, however, were fenced in, and occupied by, other
people, allegedly the Bakunawas and secured by armed and uniformed men.

There is likewise the contention of the plaintiff’s witnesses that they did not know who these men
were, although it has been said that one or two of the men who helped in fencing off these properties
were employees of the Bakunawas.

What is clear is that with the evidence thus far, the Bakunawas, or more specifically, Manuel
Bakunawa, ignored the Bureau of Forestry summons, and caused the unceremonious exclusion of
people who had apparently occupied rather large tracts of land under permits for the Bureau or
those with pending applications.

There also seems to be evidence that defendant Luz Bakunawa did quite a bit of work in her
capacity as a member of the staff of the Social Secretary of Imelda Marcos. While the influence of
Luz Bakunawa may be assumed or conjectured, there has been no evidence which would
categorically show that the position of defendant Luz Bakunawa in Malacañang "in concert with the
spouses Marcos" or either of them was the explanation for the absence of the law enforcement
officers or the inaction of the administrative officers of the government.

xxxx

The influence may be assumed and in common parlance, it might be reasonably made. But to
conclude that there was abuse of office by Luz Bakunawa or her utilization of the influence of her
office or of the spouses Marcos cannot be assumed or stated in any certainty.

And since, as aforesaid, the action herein is confiscatory in character, assumptions will not do to
obtain judgment against the defendants Bakunawa.17

The Sandiganbayan ruled that in civil suits initiated by the Presidential Commission on Good
Government (PCGG) for the recovery of illegally acquired property pursuant to Republic Act No.
1379,18 the Republic must show not only that defendant was a subordinate of the Marcos spouses or
of either of them, but also that the relationship was similar to that of an immediate member of the
Marcos family or a dummy of the Marcoses.19 It concluded that no proof established the link between
the alleged acts of the Bakunawas and those of the Marcoses, or even the proximity of Luz
Bakunawa as a Marcos relative or Marcos dummy.

The Republic sought the reconsideration of the decision, arguing that the Sandiganbayan erred in
holding that it did not show the Bakunawas’ link with the Marcoses, and in ruling that it did not prove
that the Bakunawas had abused their connections or close association with the Marcoses.20

On November 8, 2007, the Sandiganbayan denied the Republic’s motion for

reconsideration,21 reiterating its ruling that the Republic did not discharge its burden of proving the
close links between the Bakunawas and the Marcoses, and of proving how the Bakunawas had
abused said links, assuming that the links existed.

Hence, this appeal.

Issues

The Republic ascribes the following errors, to wit:

 I.

THE QUANTUM OF PROOF REQUIRED TO PROVE PETITIONER’S CASE AGAINST THE

BAKUNAWAS IS MERE PREPONDERANCE OF EVIDENCE.

II.

THE LINK BETWEEN AND/OR AMONG THE BAKUNAWAS AND THE MARCOSES WAS
SATISFACTORILY ESTABLISHED BY PETITIONER.

III.

PETITIONER WAS ABLE TO ESTABLISH THAT THE BAKUNAWAS AMASSED ASSETS,

FUNDS AND PROPERTIES GROSSLY AND MANIFESTLY DISPROPORTIONATE TO
THEIR SALARIES AND OTHER LAWFUL INCOME BECAUSE OF THEIR POSITION IN
THE GOVERNMENT AND/OR CLOSE ASSOCIATION AND CONNECTION WITH THE
MARCOSES TO THE PREJUDICE OF PETITIONER AND THE FILIPINO PEOPLE.22

In their comment,23 respondents mainly submit that the Republic failed to present a justiciable issue
to warrant the reversal of the Sandiganbayan’s decision; and that the April 10, 2002 decision already
become final and could no longer be reviewed and modified because of the belated filing of the
petition for review.

On her part, First Lady Marcos opted not to file her comment.24

Ruling

The appeal lacks merit.

1.

Appeal of the Republic was timely

The Bakunawas contend that the April 10, 2002 decision already became final because of the
Republic’s failure to file the petition for review on time.

We cannot sustain the contention.

The Republic had until November 24, 2007 within which to file the petition for review. It filed a motion
seeking an extension of 30 days of its period to file, or until December 24, 2007. Although it did not
file the petition within the requested extension period, the Court directed it on June 30, 2008 to file
the petition for review within 15 days from notice. Considering that it received the resolution of June
30, 2008 on August 11, 2008,25 its filing of the petition for review on August 26, 2008 was timely.

2.

Preponderance of evidence is required in actions brought to recover ill-gotten wealth

In its decision of April 10, 2002, the Sandiganbayan stated as follows:

Considering the confiscatory character of proceedings described in E.O. No. 14 in actions for
recovery of alleged unlawfully acquired property such as the instant case, evidence must be
substantial, if not beyond reasonable doubt, akin to the actions for forfeiture under Republic Act. No.
1379; this, notwithstanding the statements in Sec. 3 of the Executive Order which states the
adequacy of mere preponderance of evidence.26

The Republic argues that the Sandiganbayan thereby erred in seemingly requiring a degree of proof
greater than that required by Executive Order (E.O.) No. 14-A.27 This was also its submission in the
motion for reconsideration vis-à-vis the decision of April 10, 2002.

In denying the Republic’s motion for reconsideration through the November 8, 2007 resolution, the
Sandiganbayan agreed with the Republic’s submission to the effect that preponderance of evidence
was all that was required for this case. However, the Sandiganbayan pointed out that even on that
basis the Republic still did not satisfy its quantum of proof because the facts it established were not
sufficient to prove its case against respondents.28

We uphold the Sandiganbayan.

We first clarify that the Republic correctly submits that only a preponderance of evidence was
needed to prove its demand for reconveyance or recovery of ill-gotten wealth. That is quite clear
from Section 1 of E.O. No. 14-A, which provides:

Section 1. Section 3 of Executive Order No. 14 dated May 7, 1986 is hereby amended to read as
follows:

Sec. 3. The civil suits to recover unlawfully acquired property under Republic Act No. 1379 or for
restitution, reparation of damages, or indemnification for consequential and other damages or any
other civil actions under the Civil Code or other existing laws filed with the Sandiganbayan against
Ferdinand E. Marcos, Imelda R. Marcos, members of their immediate family, close relatives,
subordinates, close and/or business associates, dummies, agents and nominees, may proceed
independently of any criminal proceedings and may be proved by a preponderance of evidence.

By preponderance of evidence is meant that the evidence adduced by one side is, as a whole,
superior to that of the other side. Essentially, preponderance of evidence refers to the comparative
weight of the evidence presented by the opposing parties. As such, it has been defined as "the
weight, credit, and value of the aggregate evidence on either side," and is usually considered to be
synonymous with the term greater weight of the evidence or greater weight of the credible evidence.
It is proof that is more convincing to the court as worthy of belief than that which is offered in
opposition thereto.29

Here, the Bakunawas filed a motion to dismiss, by which they specifically demurred to the evidence
adduced against them. A demurrer to evidence is an objection by one of the parties in an action to
the effect that the evidence that his adversary produced, whether true or not, is insufficient in point of
law to make out a case or to sustain the issue. The demurring party thereby challenges the
sufficiency of the whole evidence to sustain a judgment. The court, in passing upon the sufficiency of
the evidence, is required merely to ascertain whether there is competent or sufficient evidence to
sustain the indictment or claim, or to support a verdict of guilt or liability.30

Under the rule on preponderance of evidence, the court is instructed to find for and to dismiss the
case against the defendant should the scales hang in equipoise and there is nothing in the evidence
that tilts the scales to one or the other side. The plaintiff who had the burden of proof has failed to
establish its case, and the parties are no better off than before they proceeded upon their litigation.
In that situation, the court should leave the parties as they are.31

Moreover, although the evidence of the plaintiff may be stronger than that of the defendant, there is
no preponderance of evidence on the plaintiff’s side if its evidence alone is insufficient to establish its
cause of action.32 Similarly, when only one side is able to present its evidence, and the other side
demurs to the evidence, a preponderance of evidence can result only if the plaintiff’s evidence is
sufficient to establish the cause of action. For this purpose, the sheer volume of the evidence
presented by one party cannot tip the scales in its favor. Quality, not quantity, is the primordial
consideration in evaluating evidence.

3.

The evidence of the Republic did not preponderantly establish the ill-gotten nature of the
Bakunawas’ wealth

The decisive query is whether the Republic preponderantly showed that the Bakunawas had
acquired ill-gotten wealth during Luz Bakunawa’s employment during the Marcos administration.

In Republic v. Sandiganbayan (First Division), decided on April 12, 2011,33 the Court settled not only
the meaning of ill-gotten wealth but also who were the persons liable to illegally acquire or amass
such wealth, viz:

xxxx

II

The Concept and Genesis of Ill-Gotten Wealth in the Philippine Setting

A brief review of the Philippine law and jurisprudence pertinent to ill-gotten wealth should furnish an
illuminating backdrop for further discussion.

In the immediate aftermath of the peaceful 1986 EDSA Revolution, the administration of President
Corazon C. Aquino saw to it, among others, that rules defining the authority of the government and
its instrumentalities were promptly put in place. It is significant to point out, however, that the
administration likewise defined the limitations of the authority.
The first official issuance of President Aquino, which was made on February 28, 1986, or just two
days after the EDSA Revolution, was Executive Order (E.O.) No. 1, which created the Presidential
Commission on Good Government (PCGG). Ostensibly, E.O. No. 1 was the first issuance in light of
the EDSA Revolution having come about mainly to address the pillage of the nation’s wealth by
President Marcos, his family, and cronies.

E.O. No. 1 contained only two WHEREAS Clauses, to wit:

WHEREAS, vast resources of the government have been amassed by former President Ferdinand
E. Marcos, his immediate family, relatives, and close associates both here and abroad;

WHEREAS, there is an urgent need to recover all ill-gotten wealth;

Paragraph (4) of E.O. No. 234 further required that the wealth, to be ill-gotten, must be "acquired by
them through or as a result of improper or illegal use of or the conversion of funds belonging to the
Government of the Philippines or any of its branches, instrumentalities, enterprises, banks or
financial institutions, or by taking undue advantage of their official position, authority, relationship,
connection or influence to unjustly enrich themselves at the expense and to the grave damage and
prejudice of the Filipino people and the Republic of the Philippines."

Although E.O. No. 1 and the other issuances dealing with ill-gotten wealth (i.e., E.O. No. 2, E.O. No.
14, and E.O. No. 14-A) only identified the subject matter of ill-gotten wealth and the persons who
could amass ill-gotten wealth and did not include an explicit definition of ill-gotten wealth, we can still
discern the meaning and concept of ill-gotten wealth from the WHEREAS Clauses themselves of
E.O. No. 1, in that ill-gotten wealth consisted of the "vast resources of the government" amassed by
"former President Ferdinand E. Marcos, his immediate family, relatives and close associates both
here and abroad." It is clear, therefore, that ill-gotten wealth would not include all the properties of
President Marcos, his immediate family, relatives, and close associates but only the part that
originated from the "vast resources of the government."

In time and unavoidably, the Supreme Court elaborated on the meaning and concept of ill-gotten
wealth. In Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission on Good
Government, or BASECO, for the sake of brevity, the Court held that:

x x x until it can be determined, through appropriate judicial proceedings, whether the property was
in truth "ill-gotten," i.e., acquired through or as a result of improper or illegal use of or the conversion
of funds belonging to the Government or any of its branches, instrumentalities, enterprises, banks or
financial institutions, or by taking undue advantage of official position, authority, relationship,
connection or influence, resulting in unjust enrichment of the ostensible owner and grave damage
and prejudice to the State. And this, too, is the sense in which the term is commonly understood in
other jurisdictions.

The BASECO definition of ill-gotten wealth was reiterated in Presidential Commission on Good
Government v. Lucio C. Tan, where the Court said:

On this point, we find it relevant to define "ill-gotten wealth." In Bataan Shipyard and Engineering
Co., Inc., this Court described "ill-gotten wealth" as follows:

"Ill-gotten wealth is that acquired through or as a result of improper or illegal use of or the conversion
of funds belonging to the Government or any of its branches, instrumentalities, enterprises, banks or
financial institutions, or by taking undue advantage of official position, authority, relationship,
connection or influence, resulting in unjust enrichment of the ostensible owner and grave damage
and prejudice to the State. And this, too, is the sense in which the term is commonly understood in
other jurisdiction."

Concerning respondents’ shares of stock here, there is no evidence presented by petitioner that they
belong to the Government of the Philippines or any of its branches, instrumentalities, enterprises,
banks or financial institutions. Nor is there evidence that respondents, taking undue advantage of
their connections or relationship with former President Marcos or his family, relatives and close
associates, were able to acquire those shares of stock.

Incidentally, in its 1998 ruling in Chavez v. Presidential Commission on Good Government, the Court
rendered an identical definition of ill-gotten wealth, viz:

x x x. We may also add that ‘ill-gotten wealth’, by its very nature, assumes a public character. Based
on the aforementioned Executive Orders, ‘ill-gotten wealth’ refers to assets and properties
purportedly acquired, directly or indirectly, by former President Marcos, his immediate family,
relatives and close associates through or as a result of their improper or illegal use of government
funds or properties; or their having taken undue advantage of their public office; or their use of
powers, influence or relationships, "resulting in their unjust enrichment and causing grave damage
and prejudice to the Filipino people and the Republic of the Philippines." Clearly, the assets and
properties referred to supposedly originated from the government itself. To all intents and purposes,
therefore, they belong to the people. As such, upon reconveyance they will be returned to the public
treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by
competent courts. Another declared overriding consideration for the expeditious recovery of ill-gotten
wealth is that it may be used for national economic recovery.

All these judicial pronouncements demand two concurring elements to be present before assets or
properties were considered as ill-gotten wealth, namely: (a) they must have "originated from the
government itself," and (b) they must have been taken by former President Marcos, his immediate
family, relatives, and close associates by illegal means.

But settling the sources and the kinds of assets and property covered by E.O. No. 1 and related
issuances did not complete the definition of ill-gotten wealth. The further requirement was that the
assets and property should have been amassed by former President Marcos, his immediate family,
relatives, and close associates both here and abroad. In this regard, identifying former President
Marcos, his immediate family, and relatives was not difficult, but identifying other persons who might
be the close associates of former President Marcos presented an inherent difficulty, because it was
not fair and just to include within the term close associates everyone who had had any association
with President Marcos, his immediate family, and relatives.

Again, through several rulings, the Court became the arbiter to determine who were the close
associates within the coverage of E.O. No. 1.

In Republic v. Migriño, the Court held that respondents Migriño, et al. were not necessarily among
the persons covered by the term close subordinate or close associate of former President Marcos by
reason alone of their having served as government officials or employees during the Marcos
administration, viz:

It does not suffice, as in this case, that the respondent is or was a government official or employee
during the administration of former Pres. Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close association or relation with former
Pres. Marcos and/or his wife. This is so because otherwise the respondent’s case will fall under
existing general laws and procedures on the matter. x x x

In Cruz, Jr. v. Sandiganbayan, the Court declared that the petitioner was not a close associate as
the term was used in E.O. No. 1 just because he had served as the President and General Manager
of the GSIS during the Marcos administration.

In Republic v. Sandiganbayan, the Court stated that respondent Maj. Gen. Josephus Q. Ramas’
having been a Commanding General of the Philippine Army during the Marcos administration "d[id]
not automatically make him a subordinate of former President Ferdinand Marcos as this term is used
in Executive Order Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with
former President Marcos."

It is well to point out, consequently, that the distinction laid down by E.O. No. 1 and its related
issuances, and expounded by relevant judicial pronouncements unavoidably required competent
evidentiary substantiation made in appropriate judicial proceedings to determine: (a) whether the
assets or properties involved had come from the vast resources of government, and (b) whether the
individuals owning or holding such assets or properties were close associates of President Marcos.
The requirement of competent evidentiary substantiation made in appropriate judicial proceedings
was imposed because the factual premises for the reconveyance of the assets or properties in favor
of the government due to their being ill-gotten wealth could not be simply assumed. Indeed, in
BASECO, the Court made this clear enough by emphatically observing:

6. Government’s Right and Duty to Recover All Ill-gotten Wealth

There can be no debate about the validity and eminent propriety of the Government’s plan "to
recover all ill-gotten wealth."

Neither can there be any debate about the proposition that assuming the above described factual
premises of the Executive Orders and Proclamation No. 3 to be true, to be demonstrable by
competent evidence, the recovery from Marcos, his family and his minions of the assets and
properties involved, is not only a right but a duty on the part of Government.

But however plain and valid that right and duty may be, still a balance must be sought with the
equally compelling necessity that a proper respect be accorded and adequate protection assured,
the fundamental rights of private property and free enterprise which are deemed pillars of a free
society such as ours, and to which all members of that society may without exception lay claim.

x x x Democracy, as a way of life enshrined in the Constitution, embraces as its necessary

components freedom of conscience, freedom of expression, and freedom in the pursuit of
happiness. Along with these freedoms are included economic freedom and freedom of enterprise
within reasonable bounds and under proper control. x x x Evincing much concern for the protection
of property, the Constitution distinctly recognizes the preferred position which real estate has
occupied in law for ages. Property is bound up with every aspect of social life in a democracy as
democracy is conceived in the Constitution. The Constitution realizes the indispensable role which
property, owned in reasonable quantities and used legitimately, plays in the stimulation to economic
effort and the formation and growth of a solid social middle class that is said to be the bulwark of
democracy and the backbone of every progressive and happy country.

a. Need of Evidentiary Substantiation in Proper Suit

Consequently, the factual premises of the Executive Orders cannot simply be assumed. They will
have to be duly established by adequate proof in each case, in a proper judicial proceeding, so that
the recovery of the ill-gotten wealth may be validly and properly adjudged and consummated;
although there are some who maintain that the fact — that an immense fortune, and "vast resources
of the government have been amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad," and they have resorted to all sorts of
clever schemes and manipulations to disguise and hide their illicit acquisitions — is within the realm
of judicial notice, being of so extensive notoriety as to dispense with proof thereof. Be this as it may,
the requirement of evidentiary substantiation has been expressly acknowledged, and the procedure
to be followed explicitly laid down, in Executive Order No. 14.

Accordingly, the Republic should furnish to the Sandiganbayan in proper judicial proceedings the
competent evidence proving who were the close associates of President Marcos who had amassed
assets and properties that would be rightly considered as ill-gotten wealth.

xxxx

As can be gleaned from the foregoing pronouncement, evidentiary substantiation of the allegations
of how the wealth was illegally acquired and by whom was necessary. For that purpose, the mere
holding of a position in the Marcos administration did not necessarily make the holder a close
associate within the context of E.O. No.1. According to Republic v. Migriño,35 the term subordinate as
used in E.O. No. 136 and E.O. No. 237 referred to a person who enjoyed a close association with
President Marcos and/or his wife similar to that of an immediate family member, relative, and close
associate, or to that of a close relative, business associate, dummy, agent, or nominee. Indeed, a
prima facie showing must be made to show that one unlawfully accumulated wealth by virtue of a
close association or relation with President Marcos and/or his wife.38 It would not suffice, then, that
one served during the administration of President Marcos as a government official or employee.

The Republic particularly insists that Luz Bakunawa served as the Social Secretary or the Assistant
Social Secretary of First Lady Marcos; and mentions several other circumstances that indicated her
close relationship with the Marcoses, such as her assumption of office in the early part of the Marcos
administration,39 the accommodations extended to her during her various travels,40 the fact that her
close relationship with the Marcoses was of common knowledge among the Masbateños,41 and the
negotiated contracts the Bakunawas entered into during the Marcos administration.42

However, Luz Bakunawa maintains that she was not First Lady Marcos’ Social Secretary but a mere
member of the staff of the Social Secretary; and that the assets of the Bakunawas were honestly
earned and acquired well within the legitimate income of their businesses.

We hold that the Sandiganbayan correctly ruled that the evidence of the Republic was able to
establish, at best, that Luz Bakunawa had been an employee in Malacañang Palace during the
Marcos administration, and did not establish her having a close relationship with the Marcoses, or
her having abused her position or employment in order to amass the assets subject of this case.
Consequently, Luz Bakunawa could not be considered a close associate or subordinate of the
Marcoses within the context of E.O. No. 1 and E.O. No. 2.

The determination by the Sandiganbayan of the equiponderance or insufficiency of evidence

involved its appreciation of the evidence. We cannot undo such determination unless the Republic
makes a strong demonstration to us that the determination was whimsical or capricious.43 Alas, the
Republic did not make such demonstration. Its evidence could not sustain the belief that the
Bakunawas had used their influence, or the Marcoses’ influence in acquiring their properties. Nor did
it prove that the ties or relationship between the Bakunawas and the Marcoses had been "similar to
that of an immediate member of the family or a dummy."
On another important aspect, the evidence of the Republic was likewise wanting.  The 1âwphi1

Sandiganbayan enumerated in its decision five activities in which the Bakunawas had acquired their
ill-gotten wealth, namely: (a) land-grabbing and cattle-ranching; (b) engaging in government
construction projects; (c) operating fishponds; (d) obtaining credit lines from government financial
institutions; and (e) importing heavy equipment.44 However, the decision dwelt only on land-grabbing
and the construction projects for the reason that the Republic attempted to substantiate only those
two activities. The Court is thus limited to the review of the findings on the two activities.

Anent land-grabbing, the records show that although the Bakunawas had ignored the summons from
the Bureau of Forestry, and that the several persons occupying large tracts of land under permits
from the Bureau of Forestry or under still-pending applications had been dispossessed thereof, the
dispossessed persons whom the Republic presented as witnesses could not tell in court that the
Bakunawas had employed the people who had fenced or occupied the lands in question. Such
witnesses admitted that they did not put up much resistance against their forcible dispossession
because of their belief that the Bakunawas had been very influential and had enjoyed very close ties
with the Marcoses. However, they did not show that they had at the time any direct contact or
communication with the Bakunawas, which could only mean that they only surmised and suspected
the participation of the Bakunawas in their dispossession. As such, the Republic’s evidence in that
regard could not be sufficient, for surmises and suspicions could not support any conclusion either
that the Bakunawas had taken advantage of their close ties with the Marcoses in order to dispossess
the affected witnesses, or that Luz Bakunawa had abused her influence arising from her close
association with the Marcoses.

The Republic presented documents tending to prove that the dispossessed witnesses had retained
claims to the affected properties,45 and that the Bakunawas themselves had been issued pasture
leases over the same areas.46 Given that both the dispossessed witnesses and the Bakunawas held
legal rights of possession respecting the same areas independently of each other, the
Sandiganbayan did not err in ruling that "the plaintiff’s evidence is not conclusive proof of the ill-
gotten character of the lands in the possession of the defendants Bakunawas."47 This is really a good
reason for the Sandiganbayan to hold that the Republic had not preponderantly shown that the acts
of dispossession and oppression had involved the improper use of her influence by Luz Bakunawa
on account of her close association with the Marcoses.48

Concerning the negotiated construction contracts, the Republic posits that the contracts had been
entered into when Luz Bakunawa was a member of the Presidential Staff during the Marcos
administration, laying heavy emphasis on the notations and handwritten instructions by President
Marcos found on the written communications from Manuel Bakunawa to then DPWH Secretary
Baltazar Aquino.

Yet, the Republic offered the negotiated contracts solely to prove that the Bakunawas had been
incorporators or owners, or had held key positions in the corporations that entered into the
contracts.49 The Sandiganbayan correctly ruled, therefore, that the contracts could be considered
and appreciated only for those stated purposes, not for the purpose of proving the irregularity of the
contracts, opining as follows:

x x x. The documents appear to be public documents and are, therefore, considered prima facie
evidence of the fact of their issuance and that they were signed by the persons whose signatures
appear therein. It is, indeed, apparent on the face of the documents that government projects were
awarded to the defendants Bakunawas through negotiated contracts, and that at least one was
approved by then President Marcos himself. Outside of these, however, there can be no other facts
that can be inferred from the aforesaid documents.50

The Court upholds the Sandiganbayan. It was basic enough that the Sandiganbayan could not
consider any evidence that was not formally offered; and could consider evidence only for the
purposes it was specifically offered. Section 34, Rule 132 of the Rules of Court explicitly states:

Section 34. Offer of evidence. – The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.

The need to formally offer evidence by specifying the purpose of the offer cannot be
overemphasized. This need is designed to meet the demand for due process by apprising the
adverse party as well as the trial court on what evidence the court would soon be called upon to
decide the litigation. The offer and purpose will also put the trial court in the position to determine
which rules of evidence it shall apply in admitting or denying admission to the evidence being
offered. According to Union Bank of the Philippines v. Tiu:51

x x x a formal offer is necessary because judges are mandated to rest their findings of facts and their
judgment only and strictly upon the evidence offered by the parties at the trial. It has several
functions: (1) to enable the trial judge to know the purpose or purposes for which the proponent is
presenting the evidence; (2) to allow opposing parties to examine the evidence and object to its
admissibility; and (3) to facilitate review by the appellate court, which will not be required to review
documents not previously scrutinized by the trial court. x x x.

Expounding on the office of the offer and statement of the purposes, the Court has cogently said in
Candido v. Court of Appeals:52

A document, or any article for that matter, is not evidence when it is simply marked for identification;
it must be formally offered, and the opposing counsel given an opportunity to object to it or cross-
examine the witness called upon to prove or identify it. A formal offer is necessary since judges are
required to base their findings of fact and judgment only - and strictly - upon the evidence offered by
the parties at the trial. To allow a party to attach any document to his pleading and then expect the
court to consider it as evidence may draw unwarranted consequences. The opposing party will be
deprived of his chance to examine the document and object to its admissibility. The appellate court
will have difficulty reviewing documents not previously scrutinized by the court below. The pertinent
provisions of the Revised Rules of Court on the inclusion on appeal of documentary evidence or
exhibits in the records cannot be stretched as to include such pleadings or documents not offered at
the hearing of the case.

At any rate, the Court must point out that negotiated contracts are not per se illegal. A negotiated
contract is one that is awarded on the basis of a direct agreement between the Government and the
contractor, without going through the normal procurement process, like obtaining the prior approval
from another authority, or a competitive bidding process. It is generally resorted to for convenience,
or "when time is of the essence, or where there is a lack of qualified bidders or contractors, or where
there is conclusive evidence that greater economy and efficiency would be achieved."53 The Court
has upheld the validity of a negotiated contract made pursuant to law, like a negotiated contract
entered into by a City Mayor pursuant to the then existing Local Government Code,54 or a negotiated
contract that eventually redounded to the benefit of the general public, even if there was no specific
covering appropriation pursuant to COA rules,55 or a negotiated contract that was made due to an
emergency in the health sector,56 or a negotiated contract for long overdue repair and renovation
needed to provide better health services.57

Absent evidence proving that the negotiated construction contracts had been irregularly entered into
by the Bakunawas, or that the public had been thereby prejudiced, it is pointless for the Court to
declare their invalidity. On the contrary, the Sandiganbayan correctly observed that the presumption
of the validity of the contracts prevailed.58

It is true that the recovery of ill-gotten wealth should be relentlessly pursued. But the pursuit should
not be mindless as to be oppressive towards anyone. Due process requires that there be sufficient
competent evidence of the asset being ill-gotten wealth, and of the person or persons charged with
the illegal acquisition of ill-gotten wealth being a close associate or subordinate of the Marcoses who
took advantage of such ties with the Marcoses to enrich themselves. In that effort, the Republic
carries the heavy burden of proof, and must discharge such burden fully; otherwise, the effort would
fail and fall.

WHEREFORE, we DENY the petition for review on certiorari for its lack of merit; and AFFIRM the
decision rendered on April 10, 2002, without pronouncements on costs of suit.

SO ORDERED.

G.R. No. 198020, July 10, 2013 - PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
JOSEPH BARRA, Accused-Appellant.

FIRST DIVISION

G.R. No. 198020, July 10, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSEPH BARRA, Accused-

Appellant.

DECISION
 LEONARDO-DE CASTRO, J.:

Before this Court is an appeal of the February 11, 2011 Decision1 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 041552 affirming with modification the August 24,
2009 Decision3 of the Regional Trial Court (RTC), Branch 30, San Jose, Camarines Sur
in Crim. Case No. T-2678 and finding appellant Joseph4 Barra guilty beyond reasonable
doubt of the crime of attempted robbery with homicide instead of special complex crime
of robbery with homicide.

On March 21, 2004, an information5 for the special complex crime of robbery with
homicide was filed against appellant, to wit: cralavvonlinelawlibrary

That on or about 11:00 P.M. of October 9, 2003, at Barangay Tinawagan, Tigaon,

Camarines Sur, and within the jurisdiction of this honorable court, the above-named
accused, while armed with a firearm, after gaining entrance into the residence of his
victim, with intent to gain, by means of force and intimidation, did then and there
willfully, unlawfully and feloniously take and steal money from Elmer Lagdaan y Azur;
that on the occasion of the said robbery and for the purpose of enabling him to take
and steal the money, the herein accused, with intent to kill, did then and there
feloniously shoot said Elmer Lagdaan, thereby inflicting upon him gunshot wound which
caused his death, to the prejudice of his heirs. (Emphases deleted.)

On arraignment, appellant pleaded not guilty.6 Trial ensued thereafter.

Dr. Peñafrancia N. Villanueva, Municipal Health Officer of Tigaon, Camarines Sur,

examined the corpse of Elmer Lagdaan and stated in her Postmortem Report7: cralavvonlinelawlibrary

Findings:

1. Gunshot wound, point of entry, 0.5 x 0.5 cms, circular, with inverted
edges at the mid left frontal area. Hematoma formation is noted at the
site of entry.

CAUSE OF DEATH: cralavvonlinelawlibrary

MASSIVE HE[M]ORRHAGE SECONDARY [TO] GUNSHOT WOUND

Dr. Villanueva testified that the victim sustained a gunshot wound due to the circular
and inverted edges of the point of entry.  She concluded that since there was no point
of exit, the victim was shot at close range.8

Ricardo de la Peña testified that he knew appellant for a long time.  He stated that he
was on his way home to the neighboring barangay, when, at around 9:00 p.m. on
October 9, 2003, in the light of a bright moon, he saw appellant enter the house of
Lagdaan, which was lit with a lamp, and poked a gun to the victim’s right forehead and
demanded money.  De la Peña hid behind a tree ten meters away.  When the victim
stated that the money was not in his possession, appellant shot him. He went home
and reported the incident the following morning.9

Ely Asor testified that on the night of October 9, 2003, he was on his way to the
victim’s house to collect his daily wage when he saw appellant in the yard of the
victim’s house.  He inquired from appellant if the victim was around.  Appellant
responded that the victim was not around.  Asor went home.  It was while Asor was in
his house that he heard a gunshot.  It was the following morning that he learned that
the victim died.  Asor then proceeded to report the incident.10

The victim’s mother, Flora Lagdaan, testified that she spent for funeral and burial
expenses in the amount of P33,300.00.

In his defense, appellant denied the charges against him.  Appellant claimed that he
was in Batangas City, with his brother Benjamin, visiting his sister when he was
arrested and brought to Camarines Sur and charged with the crime of “robbery with
murder.”11  Appellant’s brother, Benjamin, tried to corroborate his testimony.12

The RTC, after taking into consideration all the evidence presented, found appellant
guilty beyond reasonable doubt of the crime of robbery with homicide.  It stated that
the affirmative testimony of the prosecution’s witnesses deserved more weight than the
appellant’s defense of denial and alibi.  Thus, finding the prosecution’s witnesses to be
credible and that the killing of the victim to be by reason of the robbery, the RTC
decision’s decretal portion read:cralavvonlinelawlibrary

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the

accused, Joseph Barra GUILTY beyond reasonable doubt of the crime of Robbery with
Homicide as defined and penalized under Article 291(1) of the Revised Penal Code, and
sentences him to suffer the penalty of RECLUSION PERPETUA. To pay the surviving
heirs of Elmer Lagdaan, the sum of Php50,000.00 as civil indemnity for his death, as
actual damages in the amount of Php55,579.80, as moral damages in the sum of
Php50,000.00 and to pay the costs.

The accused is entitled to the full credit of his preventive imprisonment if he abides by
the disciplinary rules imposed upon convicted prisoners during his confinement,
otherwise he shall only be entitled to four-fifths (4/5) thereof.13

However, on appeal, the Court of Appeals only found appellant guilty of attempted
robbery with homicide.  It stated that: cralavvonlinelawlibrary

Regarding the trial court’s finding that accused-appellant is responsible for the death of
Lagdaan, WE will not disturb the same as it is well supported by the evidence on record
and in accord with prevailing law and jurisprudence. However, WE disagree with its
determination of the nature of the crime that accused-appellant committed. Instead of
robbery with homicide at its consum[m]ated stage, accused-appellant should have been
declared guilty only of attempted robbery with homicide.

As correctly observed by the OSG,14 the only evidence introduced by the government to

establish robbery is the statement of De la Peña that when accused-appellant reached
the victim’s place, the latter barged into the said residence, poked a gun at the victim’s
forehead, demanded money and when the victim refused to accede to his demand, fired
a gun and shot the victim. Indeed, no iota of evidence was presented to establish that
accused-appellant took away the victim’s money or any property, for that matter.

The fact of asportation must be established beyond reasonable doubt. Since this fact
was not duly established, accused-appellant should be held liable only for the crime of
attempted robbery with homicide as defined and penalized under Article 297 of the
Revised Penal Code which provides –
“When by reason of or on occasion of an attempted or frustrated robbery a homicide is
committed, the person guilty of such offenses shall be punished by reclusion
temporal in its maximum period to reclusion perpetua, unless the homicide committed
shall deserve a higher penalty under the provisions of this Code.”
The appellant is guilty of attempted robbery with homicide only when he commenced
the commission of robbery directly by overt acts and did not perform all the acts of
execution which would produce robbery by reason of some causes or accident other
than his own spontaneous desistance.

The claim of the defense that accused-appellant should be convicted only of the crime
of homicide is bereft of merit. The killing of the victim herein was by reason of or on the
occasion of robbery.

The attendant circumstances clearly show accused-appellant’s intent to rob the victim.
That motive was manifested by accused-appellant’s overt act of poking a gun at the
victim’s forehead demanding money from the latter. When the victim refused to accede
to the demand, accused-appellant shot the former. The killing was an offshoot of
accused-appellant’s intent to rob the victim. Accused-appellant was bent on resorting to
violent means to attain his end. Due to the victim’s failure to give his money, the crime
of robbery was, however, not consummated.15 (Citations omitted.)

Thus, the Court of Appeals stated: cralavvonlinelawlibrary

WHEREFORE, the foregoing considered, the assailed Judgment is
hereby MODIFIED as follows -

1) Accused-appellant is adjudged GUILTY of the crime of Attempted Robbery with

Homicide and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA,

2) Accused-appellant is directed to pay the heirs of Elmer Lagdaan the following: cralavvonlinelawlibrary

a) the amount of P50,000.00 as civil indemnity; chanroblesvirtualawlibrary

b) the amount of P50,000.00 as moral damages; chanroblesvirtualawlibrary

c) the amount of P25,000.00 as temperate damages; chanroblesvirtualawlibrary

d) the amount of P25,000.00 as exemplary damages; and

e) the cost of suit.16

Appellant filed his notice of appeal on February 18, 2011.17

After appellant’s confinement was confirmed, both the OSG and appellant manifested
that they would adopt the pleadings filed in the Court of Appeals in lieu of supplemental
briefs.18

Appellant argues that his identity as the perpetrator of the crime was not sufficiently
established by the prosecution.  Appellant stated that the testimonies of the
prosecution’s witnesses were rife with inconsistencies.  Moreover, appellant argued that
the elements for the special complex crime of robbery with homicide were not proven
particularly the element of taking of personal property.

We affirm the February 11, 2011 decision of the Court of Appeals with modification on
the award of damages.

In People v. Bocalan and Gatdula19 we stated that: cralavvonlinelawlibrary

[F]indings of facts of the trial court, its calibration and assessment of the probative
weight of the testimonial evidence of the parties and its conclusions anchored on its
findings are accorded by the appellate court high respect, if not conclusive effect,
because of the unique advantage of the trial court in observing at close range the
demeanor, conduct and deportment of the said witnesses as they testify, unless the
trial court ignored, misunderstood and misinterpreted cogent facts and circumstances
which if considered will change the outcome of the case. x x x. (Citation omitted.)

In the present case, while appellant questions the credibility of the prosecution’s
witnesses, he does not present any sufficient evidence to prove that the RTC indeed
ignored, misunderstood and misinterpreted the facts and circumstances of the case. 
We also found, after reviewing the records, nothing that would indicate any
misinterpretation or misapprehension of facts on the part of the appellate court that
would substantially alter its conclusions.

Appellant in this case was charged with robbery with homicide under Article 294 of the
Revised Penal Code, which provides: cralavvonlinelawlibrary

Art. 294. Robbery with violence against or intimidation of persons – Penalties. – Any

person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:
cralavvonlinelawlibrary

1. The penalty of from reclusion perpetua to death, when by reason or on

occasion of the robbery, the crime of homicide shall have been
committed; or when the robbery shall have been accompanied by rape or
intentional mutilation or arson.

In People v. Quemeggen,20 this Court gave the requisites to be proven by the

prosecution for appellant to be convicted of robbery with homicide, to wit: cralavvonlinelawlibrary

1. The taking of personal property is committed with violence or intimidation

against persons; chanroblesvirtualawlibrary

2. The property taken belongs to another; chanroblesvirtualawlibrary

3. The taking is animo lucrandi; and

 4. By reason of the robbery or on the occasion thereof, homicide is
committed. (Citation omitted.)

In the case before us, appellant’s intention was to extort money from the victim.  By
reason of the victim’s refusal to give up his personal property - his money - to
appellant, the victim was shot in the head, causing his death. We, however, agree with
the Court of Appeals that the element of taking was not complete, making the crime
one of attempted robbery with homicide as opposed to the crime appellant was
convicted in the RTC.  Appellant is, therefore, liable under Article 297 of the Revised
Penal Code, not under Article 294 as originally held by the RTC. Article 297 of the
Revised Penal Code states: cralavvonlinelawlibrary

Article 297. Attempted and frustrated robbery committed under certain

circumstances. — When by reason or on occasion of an attempted or frustrated robbery
a homicide is committed, the person guilty of such offenses shall be punished
by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide
committed shall deserve a higher penalty under the provisions of this Code.

The elements to be convicted under Article 297 were discussed in People v.

Macabales,21 to wit: cralavvonlinelawlibrary

The elements of Robbery with Homicide as defined in Art. 297 of the Revised Penal
Code are:  (1) There is an attempted or frustrated robbery. (2) A homicide is
committed.

In the present case, the crime of robbery remained unconsummated because the victim
refused to give his money to appellant and no personal property was shown to have
been taken.  It was for this reason that the victim was shot.  Appellant can only be
found guilty of attempted robbery with homicide, thus punishable under Article 297 of
the Revised Penal Code.  Since the RTC and the Court of Appeals found appellant’s
crime to be aggravated by disregard of dwelling, the Court of Appeals correctly imposed
the maximum penalty of reclusion perpetua.

Anent the awards of damages by the Court of Appeals, after a careful review of existing
rules and recent jurisprudence, we find the same to be in order and need not be
disturbed.22

However, in conformity with current policy, we impose on all the monetary awards for
damages interest at the legal rate of 6% per annum from date of finality of this
Decision until fully paid.23

WHEREFORE, the February 11, 2011 Decision of the Court of Appeals in CA-G.R. CR.-
H.C. No. 04155 is AFFIRMED with MODIFICATION that the amount of exemplary
damages shall be increased to P30,000.00 and all monetary awards for damages shall
earn interest at the legal rate of 6% per annum from date of finality of this Decision
until fully paid.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 182130               June 19, 2013

IRIS KRISTINE BALOIS ALBERTO and BENJAMIN D. BALOIS, Petitioners,

vs.
THE HON. COURT OF APPEALS, ATTY. RODRIGO A. REYNA, ARTURO S. CALIANGA, GIL
ANTHONY M. CALIANGA, JESSEBEL CALIANGA, and GRACE EVANGELISTA, Respondents.

x-----------------------x

G.R. No. 182132

THE SECRETARY OF JUSTICE, THE CITY PROSECUTOR OF MUNTINLUPA, THE PRESIDING

JUDGE OF THE REGIONAL TRIAL COURT OF MUNTINLUPA CITY, BENJAMIN D. BALOIS, and
IRIS KRISTINE BALOIS ALBERTO, Petitioners,
vs.
ATTY. RODRIGO A. REYNA, ARTURO S. CALIANGA, GIL ANTHONY M. CALIANGA,
JESSEBEL CALIANGA, and GRACE EVANGELISTA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Before the Court are consolidated petitions for review on certiorari1 assailing the January 11, 2008
Decision2 and March 13, 2008 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 97863
which revoked the December 11, 2006 Resolution4 and December 22, 2006 Amended
Resolution5 (DOJ Resolutions) issued by then Department of Justice (DOJ) Secretary Raul Gonzalez
(DOJ Secretary) directing the City Prosecutor of Muntinlupa City to file charges of Rape,6 in relation
to Section 5(b), Article III of Republic Act No. 76107 (RA 7610), Serious Illegal Detention8 and
Forcible Abduction with Rape9 against respondents.

The Facts

As culled from the assailed CA decision, the diametrically-opposed versions of the relevant incidents
in this case are as follows:

A. Incidents of December 28, 2001

Petitioners alleged that at around midnight of December 28, 2001, respondent Gil Anthony Calianga
(Gil) called petitioner Iris Kristine Alberto (Iris), then sixteen (16) years old,10 informing her that he
was at their garage with some food and drinks. For fear of being scolded, Iris refused to see Gil. But
due to his insistence, Iris finally went out to meet Gil and thereafter, took the food and drinks which
he brought. Eventually, while they were talking, Iris felt weak and dizzy and thus, tried to return to
her room. Gil assisted Iris and when they reached the room, he laid her on the bed. A little later, Gil
started kissing Iris which prompted her to scream. Consequently, Gil covered Iris’ mouth with a
pillow and soon after, he succeeded in having sexual intercourse with her. Before leaving, Gil
warned Iris not to tell anyone about what happened or else he would kill her.11

By way of rebuttal, respondents averred that Gil and Iris met at the Mormon Church in Muntinlupa
City and became sweethearts in 2001. They eventually developed an amorous physical relationship
and on the evening of December 28, 2001, secretly slept together for the first time in Iris’ own
bedroom.12

B. Incidents of April 23 to 24, 2002

As for the second set of incidents, petitioners claimed that on April 23, 2002, Gil called Iris, then
seventeen (17) years old,13 telling her that he would pick her up for them to go to church in order to
play volleyball. They met at about 5:30 in the afternoon in South Green Heights and proceeded to
Camella to meet Gil’s sister, respondent Jessebel Calianga (Jessebel), and her friend, respondent
Grace Evangelista (Grace). At around 6:30 in the evening, Gil and Iris boarded a tricycle. At the
outset, Iris thought they would be going to church for volleyball practice; but instead, Gil, while
poking a knife at Iris’ side, told her that they were headed to a different destination. Eventually, they
reached a McDonald’s restaurant located in San Pedro, Laguna where they transferred to a car
driven by Grace’s common law husband. They then returned to Camella and stayed with a relative of
Grace where they had dinner. While having dinner, Iris overheard respondent Atty. Rodrigo Reyna
(Atty. Reyna) giving instructions to Jessebel to take Iris to Marikina City. When they finished their
dinner, Atty. Reyna called again and told Iris not to go out as her relatives were around the area, on
board several cars. Iris pleaded Gil to let her go, but her pleas were ignored. A little later, Jessebel
and Grace led Gil and Iris to a tree house where Gil forced her to enter a room. She tried to resist
but he threatened to kill her if she did not accede. Left with no option, Iris entered the room where
Gil, holding her at knifepoint, succeeded in once again having sexual intercourse with her.14

The following day, or on April 24, 2002, at around 6:00 in the morning, Atty. Reyna arrived and
instructed Iris to tell her relatives, who had been worriedly looking for her, that she voluntarily went
with Gil; that she was treated with kindness; and that everything that happened was to her own liking
because of her love for Gil. Atty. Reyna then asked Iris to go home but she refused because she did
not know her way back. Because of Iris’ refusal, Atty. Reyna called up her Auntie Vilma and Uncle
Albert and agreed to meet at Chowking-Poblacion where Iris was finally released to her grandfather,
petitioner Benjamin Balois (Benjamin).15

In defense, respondents maintained that on April 23, 2002, Iris’ brother, Eldon Alberto (Eldon),
caught Gil inside Iris’ bedroom where he had spent the night. Fearing the consequences of having
been caught, Gil and Iris eloped and stayed at the house of Grace’s grandfather. When Benjamin
realized that Iris was missing, he sought the help of Atty. Reyna, since he was a family friend from
their church. Iris’ relatives also suspected that she might be with Gil after learning from the entries in
her journal that Iris loved Gil very much. Coincidentally, Gil was the nephew of Atty. Reyna’s wife
and so they were hoping that Atty. Reyna would have some information as to Gil’s whereabouts.
Atty. Reyna and the Balois family searched together for Iris that night. In the course thereof, Atty.
Reyna called Jessebel and Grace to ask if they knew where Gil was. Both stated that they were in
Marikina but denied having any knowledge about Gil’s location. Later, the party tried to search Gil’s
house as well as Grace’s place (the latter being referred to as the "tree house"). However, both
yielded negative results.

In the morning of April 24, 2002, Atty. Reyna proceeded to look for Grace and again asked where Gil
and Iris were. Eventually, Grace admitted that the two were at her grandfather’s house, which was
only around 30 minutes away from her place. They proceeded accordingly and there, found Iris and
Gil who were both surprised to see Atty. Reyna. Subsequently, Atty. Reyna asked Iris why she left
home and she answered that it was because of her brother Eldon’s warning that her family knew
everything about her relationship with Gil. Atty. Reyna confirmed the veracity of Eldon’s statement
and went on to advise Iris to just tell the truth. Iris heeded Atty. Reyna’s advice, allowing him to
contact the Baloises and arrange for her return. As it turned out, they agreed to meet at Chowking-
Poblacion for such purpose.16

In view of the incidents that transpired on December 28, 2001 and April 23 to 24, 2002, Benjamin
filed a criminal complaint for Rape, Serious Illegal Detention and Child Abuse under Section 5(b),
Article III of RA 7610 against Gil, Atty. Reyna, Jessebel and Grace before the Office of the City
Prosecutor of Muntinlupa (Muntinlupa Pros. Office), docketed as I.S. No. 02-G-03020-22.17

C. Incidents of June 23 to November 9, 2003

Finally, as for the third set of incidents, petitioners asserted that on June 23, 2003, Iris was abducted
in front of Assumption College. This time, Gil conspired with Atty. Reyna and respondent Arturo
Calianga (Arturo), to take Iris in order to prevent her from appearing at the preliminary investigation
in I.S. No. 02-G-03020-22 scheduled on June 25, 2003. In the afternoon of the same day, Iris’ family
brought Police Anti-Crime and Emergency Response (PACER) agents to Arturo’s house. Upon their
arrival, Grace told them that Gil left with some clothes and that he and Iris eloped and would proceed
to Cagayan de Oro City. Soon after the abduction on June 23, 2003, Gil, Atty. Reyna and Arturo
started their psychological manipulation of Iris.18

On June 27, 2003, Gil, with the help of two men, brought Iris to Cagayan de Oro City and there, held
her captive in a small room with a small mat, near a pigpen. They controlled her movements, such
as when she would eat, sleep, bathe or use the toilet. Gil raped her almost every day even during
her menstrual period and would beat her up whenever she resisted. Also, Gil often told Iris that he
would have her entire family killed by his Moslem relatives.19

Disputing petitioners’ allegations, respondents denied that Gil, Atty. Reyna and Arturo abducted Iris
and instead, claimed that Gil and Iris eloped for the second time, after visiting the Office of the City
Prosecutor of Muntinlupa City where Iris declared that the charges against respondents were all
fabricated by her grandfather, Benjamin, and that she wanted them dismissed. Respondents claimed
that Iris was quite prepared during her second elopement with Gil as she brought with her three bags
containing several personal effects and other relevant documents. Eventually, Iris’ family would
discover that the reason for her elopement with Gil was because she was being maltreated and
physically abused by her grandfather, Benjamin. Moreover, Iris could no longer stomach the lies
Benjamin wanted her to say about Gil.20

Subsequently, Benjamin filed a second complaint against Gil, Atty. Reyna and Arturo for Kidnapping
and Serious Illegal Detention, Grave Coercion and Obstruction of Justice before the Office of the
City Prosecutor of Makati (Makati Pros. Office), docketed as I.S. No. 03-G-14072-75.21

On July 9, 2003, the City Prosecutor of Muntinlupa City dismissed the charges against Gil, Atty.
Reyna, Jessebel and Grace for Rape and Serious Illegal Detention in I.S. No. 02-G-03020-22 for
insufficiency of evidence. However, having found that he had sexual intercourse with a minor, Gil
was charged for Child Abuse. Consequently, a warrant of arrest was issued against Gil.22

Determined to face the charges against him, Gil, together with Iris, returned from Cagayan de Oro
City to Manila where he posted bail for the Child Abuse case.23

On August 6, 2003, Iris executed an affidavit (August 6, 2003 affidavit), sworn before Makati
Assistant City Prosecutor George de Joya (Pros. de Joya), denying that she was kidnapped,
detained or raped by Gil. She also affirmed that she loved Gil and eloped with him.24

On August 13, 2003, Iris and Gil appeared together on the GMA-7 television network’s Frontpage
news segment "Magkasintahan Pala" where Iris publicly declared that she loved Gil and that she
went with him freely.25
On August 19, 2003, Iris appeared before the 9th Division of the CA in the hearing of the petition for
habeas corpus filed by Benjamin in view of her second elopement on June 23, 2003.26 During the
said hearing, Iris declared that she was never kidnapped, detained or raped and that she loved Gil
who was her boyfriend since December 2001. She also confirmed that she executed the August 6,
2003 affidavit before Pros. de Joya and that she appeared in "Magkasintahan Pala" on August 13,
2003. She also testified that she visited the Office of the City Prosecutor of Muntinlupa asking for the
dismissal of the erroneous charges filed by Benjamin. When the CA Justices asked with whom she
wanted to go home, she said that she wanted to go with Gil and his family. She added that she did
not want her grandfather to visit her. Hence, in line with her decision during the foregoing
proceedings, Iris and Gil freely cohabited beginning August 19, 2003 and were seen in public, freely
roaming around the city. They regularly went to church together, underwent counseling and even
planned to have their relationship bonded by marriage as soon as they got the required parental
consent.27

On November 9, 2003, Benjamin forcibly took Iris away from Gil as the two were going to church. He
subsequently kept Iris incommunicado for days and then had her declare through radio, newspaper
and television that she was kidnapped and raped by Gil and his family. While in the company of her
relatives, Iris was able to sneak out text messages to Gil using the cellular phone of her grandfather,
expressing her deep love and concern for him and warning his family about Benjamin’s plans
against them.28

On December 15, 2003, Iris, assisted by members of the groups Volunteers Against Crime and
Corruption and Gabriela, proceeded to the DOJ Task Force on Women and Children Protection
(DOJ Task Force) and filed a third complaint against Gil for Forcible Abduction with Rape and
Obstruction of Justice, punished under Presidential Decree No. 1829,29 docketed as I.S. No. 2004-
127.30

Disposition of the Criminal Complaints

The three (3) criminal complaints filed by Iris and Benjamin against respondents were disposed as
follows:

First, in I.S. No. 02-G-03020-22, State Prosecutor II Lilian Doris S. Alejo (Pros. Alejo) of the
Muntinlupa Pros. Office issued the Resolution dated July 9, 2003,31 dismissing the charges for
Serious Illegal Detention and Rape against Gil, Atty. Reyna, Jessebel and Grace for insufficiency of
evidence. In gist, Pros. Alejo found that the pieces of evidence showed that Gil and Iris were
sweethearts and the sexual intercourse that transpired between them was consensual. Likewise,
she observed that the story narrated by Iris was farfetched and, to a certain degree, unacceptable
and unimaginable, intimating that it was unbelievable that Iris would still go to volleyball practice with
Gil after the first rape he allegedly committed against her.32

Nonetheless, Pros. Alejo recommended the filing of informations for Child Abuse against Gil for
having sexual intercourse with Iris on December 28, 2001 and April 23, 2003 by taking advantage of
her minority and his moral influence as a pastor of their church.33 Accordingly, Gil was charged under
the following amended criminal informations,34 docketed as Criminal Case Nos. 03-549 and 03-551:

Criminal Case No. 03-551

That on December 28, 2001, in the City of Muntinlupa, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by taking advantage of his influence as Mormon priest
of the church of which herein victim, seventeen (17) year[s] old IRIS KRISTINE ALBERTO y BALOIS
is a member, and through moral compulsion, did then and there, willfully, unlawfully and feloniously
engaged in sexual intercourse with said minor.

CONTRARY TO LAW.

Muntinlupa City, July 9, 2003.

Criminal Case No. 03-549

That on April 23, 2002, in the City of Muntinlupa, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by taking advantage of his influence as Mormon priest
of the church of which herein victim, seventeen (17) year old IRIS KRISTINE ALBERTO y BALOIS is
a member, and through moral compulsion, did then and there, willfully, unlawfully and feloniously
engaged in sexual intercourse with said minor.

CONTRARY TO LAW.

Muntinlupa City, July 9, 2003.

Second, in I.S. No. 03-G-14027-75, 2nd Assistant City Prosecutor Henry M. Salazar (Pros. Salazar)
of the Makati Pros. Office issued a Resolution dated March 5, 2004,35 equally dismissing the charges
for Kidnapping and Serious Illegal Detention, Grave Coercion and Obstruction of Justice against Gil,
Atty. Reyna and Arturo for lack of merit and/or insufficiency of evidence. Anent the Kidnapping
charge, Pros. Salazar found that no evidence was submitted which would prove that Iris was forcibly
taken away and deprived of her liberty.36 Similarly, he observed that there was no evidence or any
particular allegation of facts in the complaint-affidavit constituting the acts which were claimed as
coercive.37In the same vein, he found no evidence or any sufficient allegation to support the charge
of Obstruction of Justice.38

Pros. Salazar further noted that aside from the insufficiency of the complainant’s39 evidence, the
affidavit of Iris dated August 5, 2003, the news package entitled "Magkasintahan Pala," and the
transcript of stenographic notes of the hearing on August 19, 2003 of the petition for habeas corpus
in CA-G.R. S.P. No. 78316 all support the dismissal of the foregoing charges.40 He also observed
that the complainant moved for the suspension of the preliminary investigation due to the need to
have Iris mentally examined, alleging certain doubts on the voluntariness of her August 6, 2003
affidavit. However, no mental examination report was submitted to verify such doubts. In addition,
Pros. Salazar took cognizance of the fact that while Iris was "rescued" on November 9, 2003,
Benjamin only asked for the revival of the preliminary investigation of the case on January 22,
2004.41

Finally, the counter-charge of Perjury was dismissed, also for lack of merit.42

Dissatisfied, Benjamin moved for reconsideration which was, however, denied in a Resolution dated
July 30, 2004.43

Third, in I.S. No. 2004-127, State Prosecutor Zenaida M. Lim (Pros. Lim) of the DOJ Task Force
issued a Resolution dated November 8, 2004,44 also dismissing the third case for Forcible Abduction
with Rape and Obstruction of Justice against Gil, Atty. Reyna and Arturo on the ground of
insufficiency of evidence.

In addition to the above-stated incidents, complainant45 averred that Atty. Reyna and Arturo also
raped her in the month of August 2003. She alleged that Atty. Reyna gave her a drink laced with
some kind of chemical substance which made her dizzy and weak and thereafter, succeeded to
have sexual intercourse with her. Iris averred that Arturo also did the same thing to her. She likewise
claimed that Atty. Reyna and Arturo sexually molested her every time they went to Taytay, while Gil
continually raped her. After the habeas corpus proceedings in CA-G.R. S.P. No. 78316, Gil brought
her to Atty. Reyna’s house in Putatan, Muntinlupa where she was repeatedly raped by Gil and Atty.
Reyna. According to Iris, Atty. Reyna also brought her to an apartment in Camella Homes,
Muntinlupa where Arturo raped her. She stayed at Atty. Reyna’s Putatan residence for three (3)
months and the latter would bring her to the Camella Homes apartment whenever his wife sensed
what they were doing to her.46

Pros. Lim found no probable cause for the crimes charged, holding that Iris was not a credible
witness because of her flip-flopping testimonies and the serious contradictions therein. She
observed that the fact that Iris admitted that she went back to school and even got exemplary grades
confirmed that she was of sound mind and acted with volition when she went away with Gil on June
23, 2003. Her mental condition was also adjudged to be normal by the CA justices who observed her
personal demeanor during the August 19, 2003 hearing in CA-G.R. S.P. No. 78316. Further, the fact
that Iris was not abducted but acted with free will was attested to by Gemma Cachuela (Cachuela), a
staff of the Muntinlupa Prosecutor’s Office, stating that Iris went to their office on June 23, 2003 to
withdraw her complaint. Pros. Lim added that Cachuela had no reason or motive to fabricate her
statement. Likewise, she noted that the fact that the presentation of the news program
"Magkasintahan Pala" and Iris’ text messages to Gil as evidence were suppressed meant that they
were adverse to Iris’ cause. She also found the assertion that Iris was made to undergo a mock trial
twice a week to script her testimony for the first habeas corpus proceedings to be untrue as Iris
herself admitted that respondents received the subpoena only on August 17, 2003, or two (2) days
before the August 19, 2003 hearing. Further, she deemed that it was incredible that respondents
would use a color-coding vehicle on the day of Iris’ purported abduction. Complainant’s sweeping
statements against Atty. Reyna and Arturo were also found to be inadequate to establish their guilt,
observing that if Iris were indeed drugged for the first time and raped, she should not have acceded
to drink the same substance for a second time. Moreover, if she was indeed molested by Atty.
Reyna and Arturo, she should have declared such fact during the proceedings in CA-G.R. S.P. No.
78316. Yet, on the contrary, Iris even praised Atty. Reyna and Arturo for being "mabubuting tao"
(good people).47 In closing, Pros. Lim held that no abduction with rape took place but rather, the rule
on two (2) consenting adults giving free reign to their emotions prevailed in this case.48

Finally, anent the charge of Obstruction of Justice, Pros. Lim dismissed the same, also for lack of
sufficient evidence.49
Aggrieved, Iris and Benjamin appealed the dismissal of all the foregoing charges to the DOJ.50

Proceedings Before the DOJ

On December 11, 2006, the DOJ Secretary issued the first assailed Resolution of even date51 which
he later modified through an Amended Resolution dated December 22, 2006 (Amended
Resolution).52 In the Amended Resolution, the DOJ Secretary resolved the consolidated petitions in
I.S. No. 02-G-03020-22, I.S. No. 03-G-14027-75 and I.S. No. 2004-127, finding probable cause to
charge: (a) Gil for Rape, in relation to Section 5(b), Article III of RA 7610, on account of the
December 28, 2001 incidents; (b) Gil, Jessebel, Atty. Reyna and Grace for one (1) count each of
Serious Illegal Detention and Rape, in relation to Section 5(b), Article III of RA 7610, on account of
the April 23 to 24, 2002 incidents; and (c) Gil, Atty. Reyna and Arturo for one (1) count each of
Forcible Abduction with Rape on account of the June 23 to November 9, 2003 incidents.53

In granting the consolidated petitions, the DOJ Secretary observed, among others, that Gil merely
interposed the sweetheart defense, which in itself was doubtful in view of Iris’ positive identification
of him as the culprit of the December 28, 2001 incident. He further held that it was error to have
dismissed the charges against respondents on the basis of the dismissal of the two (2) habeas
corpus cases considering that the causes of action therein were different and that the CA did not
make any finding on the criminal liability of the respondents. Also, he noted that Iris’ family reported
to the authorities that she had been abducted. Moreover, he found that respondents conspired with
one another in the abduction and consequent raping of Iris.54

On January 18, 2007, respondents moved for the reconsideration of the Amended Resolution.55

Meanwhile, on February 5, 2007, two (2) separate criminal Informations were filed for Forcible
Abduction with Rape against Gil, Arturo, and Atty. Reyna, docketed as Criminal Case No. 07-122,
and for Serious Illegal Detention with Rape against Gil, Atty. Reyna, Jessebel, and Grace, docketed
as Criminal Case No. 07-128:

Criminal Case No. 07-12256

The undersigned Acting City Prosecutor upon sworn complaint duly attached and made an integral
part hereof and marked as Annex "A," executed on December 15, 2003 before the Violence Against
Women and Children Division (VAWCD) of the National Bureau of Investigation by the offended
party, IRIS KRISTINE ALBERTO Y BALOIS, then eighteen (18) years old, accuses RODRIGO A.
REYNA, GIL ANTHONY M. CALIANGA and ARTURO S. CALIANGA of FORCIBLE ABDUCTION
WITH RAPE pursuant to Article 48 in relation to Article 342 and Article 266 paragraph 1(a) of the
Revised Penal Code, and committed in relation to the incidents that occurred between June 23,
2003 until November 9, 2003 as follows:

That on June 23, 2003, in Makati City, Philippines and within the jurisdiction of this Honorable Court,
all the above-named accused mutually helping, conspiring and confederating with each other, then
and there willfully, unlawfully and feloniously abducted the private complainant, Iris Kristine Alberto y
Balois, against her will with the aid of two armed men in front of Assumption College in Makati City
using a Tamaraw FX vehicle with plate number TRP-871, with lewd and unchaste designs and for
the purpose of preventing the private complainant from pursuing her earlier complaint for rape,
serious illegal detention and violation of Republic Act No. 7610 in I.S. No. 02-G-03020-22 before the
Muntinlupa City Prosecutor’s Office against accused Gil Anthony M. Calianga, Rodrigo A. Reyna
and several other persons, and that thereafter the private complainant was taken to the house of
accused Rodrigo A. Reyna at Unit 17, Dona Segundina Townhomes, Muntinlupa City, where she
was detained against her will for two days, and later transferred to a house in San Pedro, Laguna
where she was also detained against her will until June 27, 2003;

That on or about June 27, 2003, all the above-named accused, then and there, willfully, unlawfully
and feloniously decided to hide the private complainant in Mindanao and, with the help of armed
men and with threat, force and intimidation, accused Gil Anthony Calianga brought the private
complainant to Cagayan de Oro where she was held captive in a house until about August 5, 2003
and where accused Gil Anthony M. Calianga had carnal knowledge of her repeatedly against her
will, by means of threat, force, violence and intimidation and by making her take drinks laced with
drugs;

That on or about August 5, 2003, accused Gil Anthony M. Calianga, with the aid or several unknown
persons, brought the private complainant back to Metro Manila and thereafter, together with accused
Rodrigo A. Reyna and Arturo S. Calianga, willfully, unlawfully and feloniously detain the private
complainant in a house in Taytay, Rizal until she was transferred to the house of accused Rodrigo A.
Reyna in Muntinlupa City where the three accused continued to hold her against her will, at which
different places the three accused willfully, unlawfully and feloniously, by means of threat, force,
violence, intimidation and psychological manipulation, and through the use of drugs, took turns in
repeatedly having carnal knowledge of the private complainant against her will until she was rescued
on November 9, 2003 by her relatives and NBI agents.

CONTRARY TO LAW.

Manila, January 30, 2007.

Criminal Case No. 07-12857

The undersigned Acting City Prosecutor, upon sworn complaint duly attached and made an integral
part hereof and marked as Annex "A", executed on July 4, 2002 before the Women’s Desk,
Muntinlupa City Police Station by the offended party, IRIS KRISTINE ALBERTO Y BALOIS, then
seventeen (17) years old, assisted by her grandfather Benjamin D. Balois, accuses RODRIGO A.
REYNA, GIL ANTHONY M. CALIANGA, JEZIBEL CALIANGA, GRACE EVANGELISTA
confederating and mutually helping each other in the crime of SERIOUS ILLEGAL DETENTION and
Rape of a minor as defined under Article 267, paragraph 1(4) and paragraph 3 of the Revised Penal
Code, as amended by Republic Act No. 7659, committed as follows:

That at about 5:30 [sic] in the afternoon of April 23, 2002, in the City of Muntinlupa and within the
jurisdiction of this Honorable Court, accused GIL ANTHONY M. CALIANGA, through fraudulent
misrepresentation, by means of force, threat and intimidation and by taking advantage of his
influence as priest of the Mormon Church of which the private complainant Iris Kristine [Balois
Alberto], female, then a minor, seventeen (17) years of age, was also a member, then and there,
and with lewd and unchaste design, willfully, unlawfully and feloniously take and carry away Iris
Kristine Balois Alberto against her will and without legal cause, from South Green Heights in
Muntinlupa City and brought her to a tree house located at Camella Homes, Muntinlupa City where
said accused, by means of threat, force, violence and intimidation, willfully, unlawfully and
feloniously had carnal knowledge of the private complainant against her will in the evening of the
said date and detained her until the morning of April 24, 2002; that said accused Gil Anthony
Calianga would not have succeeded in detaining her until the morning of April 24, 2002 and in
having carnal knowledge of her against her will on the night of April 23, 2002 without the
indispensable cooperation of accused JEZIBEL CALIANGA and GRACE EVANGELISTA who
padlocked the tree house from the outside while the private complainant was detained inside, and
the indispensable cooperation of accused Atty. RODRIGO A. REYNA, a high priest of the Mormon
church, a close friend and associate of private complainant’s grandfather and a member of the legal
profession, who, taking advantage of his ascendancy and moral persuasion, willfully, unlawfully and
feloniously aided, abetted and cooperated with accused Gil Anthony Calianga, Jezibel Calianga and
Grace Evangelista by giving them instructions through cellular phone and by misleading and actively
misrepresenting to the private complainant’s family her whereabouts. Without such cooperation and
unity in effort on the part of the above named accused, Iris Kristine Balois Alberto, a minor at that
time, would not have been detained and raped on April 23 to 24, 2002.

CONTRARY TO LAW.

Manila, January 30, 2007.

For alleged reasons of extreme urgency, respondents filed a petition for certiorari58 with the CA,
docketed as CA-G.R. SP. No. 97863, while the resolution of their January 18, 2007 Joint Motion for
Reconsideration was still pending.

In the interim, a warrant of arrest59 was issued on February 23, 2007, by Presiding Judge Philip A.
Aguinaldo of the RTC of Muntinlupa City, Branch 207 against all the accused in Criminal Case No.
07-128. Later, on January 14, 2008, Acting Presiding Judge Romulo SG. Villanueva of the RTC,
Muntinlupa City, Branch 256 issued a warrant of arrest60 against all the accused in Criminal Case
No. 07-122.

The CA Ruling

The CA gave due course to respondents’ petition for certiorari and on January 11, 2008 rendered its
Decision61 which revoked the DOJ Resolutions.

It ruled that the DOJ Secretary gravely abused his discretion in reversing the resolutions of no less
than three (3) investigative bodies which all found lack of probable cause and in disregarding the
overwhelming, credible and convincing evidence which negated the charges filed against
respondents.62 Of particular note to the CA were the inconsistent and inherently improbable
testimony of Iris, the existence of love letters and text messages of love and concern between Iris
and Gil, and the hiatus of evidence that would show that Atty. Reyna, Arturo, Jessebel and Grace
conspired to rape or illegally detain Iris.63
Petitioners filed a motion for reconsideration,64 essentially arguing that the CA erroneously assumed
the function of public prosecutor when it determined the non-existence of probable cause. The said
motion was, however, denied in a Resolution dated March 13, 2008.65

Issue Before The Court

The core of the present controversy revolves around the issue of whether or not the CA erred in
revoking the DOJ Resolutions based on grave abuse of discretion.

The Court’s Ruling

The petitions are partly meritorious.

It is well-settled that courts of law are precluded from disturbing the findings of public prosecutors
and the DOJ on the existence or non-existence of probable cause for the purpose of filing criminal
informations, unless such findings are tainted with grave abuse of discretion, amounting to lack or
excess of jurisdiction. The rationale behind the general rule rests on the principle of separation of
powers, dictating that the determination of probable cause for the purpose of indicting a suspect is
properly an executive function; while the exception hinges on the limiting principle of checks and
balances,66 whereby the judiciary, through a special civil action of certiorari, has been tasked by the
present Constitution "to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government."67

In the case of Callo-Caridad v. Esteban,68 citing Metropolitan Bank & Trust Co. v. Tobias III,69 the
Court held:

In reviewing the findings of the public prosecutor on the matter of probable cause, the Secretary of
Justice performed an essentially executive function to determine whether the crime alleged against
the respondents was committed, and whether there was probable cause to believe that the
respondents were guilty thereof.

On the other hand, the courts could intervene in the Secretary of Justice’s determination of probable
cause only through a special civil action for certiorari. That happens when the Secretary of Justice
acts in a limited sense like a quasi-judicial officer of the executive department exercising powers akin
to those of a court of law. But the requirement for such intervention was still for the petitioner to
demonstrate clearly that the Secretary of Justice committed grave abuse of discretion amounting to
lack or excess of jurisdiction. Unless such a clear demonstration is made, the intervention is
disallowed in deference to the doctrine of separation of powers. As the Court has postulated in
Metropolitan Bank & Trust Co. v. Tobias III:

Under the doctrine of separation of powers, the courts have no right to directly decide matters over
which full discretionary authority has been delegated to the Executive Branch of the Government, or
to substitute their own judgments for that of the Executive Branch, represented in this case by the
Department of Justice. The settled policy is that the courts will not interfere with the executive
determination of probable cause for the purpose of filing an information, in the absence of grave
abuse of discretion. x x x x (Emphasis supplied)

In the context of filing criminal charges, grave abuse of discretion exists in cases where the
determination of probable cause is exercised in an arbitrary and despotic manner by reason of
passion and personal hostility. The abuse of discretion to be qualified as "grave" must be so patent
or gross as to constitute an evasion of a positive duty or a virtual refusal to perform the duty or to act
at all in contemplation of law.70 In this regard, case law states that not every error in the proceedings,
or every erroneous conclusion of law or fact, constitutes grave abuse of discretion.71 As held in
PCGG v. Jacobi:72

In fact, the prosecutor may err or may even abuse the discretion lodged in him by law. This error or
abuse alone, however, does not render his act amenable to correction and annulment by the
extraordinary remedy of certiorari. To justify judicial intrusion into what is fundamentally the domain
of the Executive, the petitioner must clearly show that the prosecutor gravely abused his discretion
amounting to lack or excess of jurisdiction in making his determination and in arriving at the
conclusion he reached. This requires the petitioner to establish that the prosecutor exercised his
power in an arbitrary and despotic manner by reason of passion or personal hostility; and it must be
so patent and gross as to amount to an evasion or to a unilateral refusal to perform the duty enjoined
or to act in contemplation of law, before judicial relief from a discretionary prosecutorial action may
be obtained. (Emphasis and underscoring supplied)

To note, probable cause, for the purpose of filing a criminal information, exists when the facts are
sufficient to engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof. It does not mean "actual and positive cause" nor does it import
absolute certainty. Rather, it is merely based on opinion and reasonable belief. Accordingly,
probable cause does not require an inquiry into whether there is sufficient evidence to procure a
conviction; it is enough that it is believed that the act or omission complained of constitutes the
offense charged.73 As pronounced in Reyes v. Pearlbank Securities, Inc.:74

A finding of probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed by the suspects. It need not be based on clear and convincing evidence
of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. What is determined is whether there is sufficient
ground to engender a well-founded belief that a crime has been committed, and that the accused is
probably guilty thereof and should be held for trial. It does not require an inquiry as to whether there
is sufficient evidence to secure a conviction. (Emphasis and underscoring supplied)

In order to engender a well-founded belief that a crime has been committed, and to determine if the
suspect is probably guilty of the same, the elements of the crime charged should, in all reasonable
likelihood, be present. This is based on the principle that every crime is defined by its elements,
without which there should be, at the most, no criminal offense.75

Guided by the foregoing considerations, the Court therefore holds as follows:

First, the DOJ Secretary did not gravely abuse his discretion in finding that probable cause exists for
the crime of Rape against Gil, Atty. Reyna and Arturo.

Under Article 266-A of the RPC, as amended by Republic Act No. 8353, the elements of Rape are:
(a) that the offender is a man; (b) that the offender had carnal knowledge of a woman; and (c) that
such act is accomplished by using force or intimidation.76

In particular, with respect to Gil, Iris averred that on December 28, 2001, Gil drugged her and
thereafter, through force and intimidation, succeeded in having sexual intercourse with her. She also
claimed that on April 23, 2002, Gil, again through force and intimidation, had carnal knowledge of
her in the tree house. Likewise, beginning June 27, 2003, Gil raped her almost every day up until her
rescue on November 9 of the same year.

In defense, records show that Gil never denied any of the above-stated sexual encounters, but
merely maintained the he and Iris were sweethearts, as shown by several love letters and text
messages between them.

Ruling on the matter, the Court finds no grave abuse of discretion on the part of the DOJ Secretary,
as the elements of rape, more likely than not, appear to be present.

The first and second elements of the crime are beyond dispute as Gil does not deny having carnal
knowledge with Iris. Anent the third element of force and intimidation, Iris’s version of the facts, as
well as Gil’s sole reliance on the sweetheart defense, leads the Court to believe that the said
element, in all reasonable likelihood, appears to be present, considering that: (a) mere denial cannot
prevail over the positive testimony of a witness;77 (b) the sweetheart theory does not, by and of itself,
negate the commission of rape;78 and (c) the fact that Iris was a minor during the foregoing incidents
casts serious doubt on the efficacy of the consent purportedly given by her,79 especially in view of
Gil’s esteemed position of being a priest of the same congregation of which Iris belongs to.

Moreover, a perusal of the transcript of stenographic notes of the January 14, 2004 hearing in CA-
G.R. S.P. No. 80624 (January 14, 2004 TSN) shows that Iris retracted her previous testimony during
the August 19, 2003 hearing in the first habeas corpus case, i.e., CA-G.R. S.P. No. 78316, to the
effect that her statements that Gil never raped her and that she went with him on her own volition
were merely "scripted" and conjured only upon the instruction of Atty. Reyna.80 While case law holds
that recantations do not necessarily cancel out an earlier declaration, ultimately, it should still be
treated like any other testimony and as such, its credibility must be tested during trial.81

Based on the foregoing reasons, the Court finds reasonable bases to sustain the DOJ Secretary’s
finding of probable cause for Rape against Gil in connection with all three (3) incidents of December
28, 2001, April 23, 2002 and June 23 to November 9, 2003. In this respect, the DOJ Secretary
committed no grave abuse of discretion.

Similarly, the Court finds no grave abuse of discretion in the DOJ Secretary’s finding of probable
cause for Rape against Atty. Reyna and Arturo, but only insofar as the June 23 to November 9, 2003
incidents are concerned.
The January 14, 2004 TSN reveals that Iris categorically declared in open court that she was raped
by Atty. Reyna and Arturo during the aforesaid five month period.82 It is a standing rule that due to
the nature of the commission of the crime of rape, the testimony of the victim may be sufficient to
convict the accused, provided that such testimony is credible, natural, convincing and consistent with
human nature and the normal course of things.83 Applying the same, the Court deems it prudent to
test the credibility of Iris’s testimony during trial, in which her demeanor and deportment would be
properly observable,84 and likewise be subject to cross-examination.85

On the contrary, there appears to be no ample justification to support the finding of probable cause
against Atty. Reyna and Arturo, with respect to the rape incidents of December 28, 2001 and April
23, 2002, as well as against Jessebel and Grace for all three (3) incidents.

As may be gleaned from the Amended Resolution, the DOJ Secretary indicted Atty. Reyna, Arturo,
Jessebel and Grace for these incidents only by reason of conspiracy. Yet, other than his general
imputation thereof, the DOJ Secretary never provided any rational explanation for his finding of
conspiracy against the aforementioned respondents. The rule is that conspiracy must be proved as
clearly and convincingly as the commission of the offense itself. It can be inferred from and
established by the acts of the accused themselves when said acts point to a joint purpose and
design, concerted action and community of interests.86 In this case, the Amended Resolution is
bereft of any showing as to how the particular acts of the foregoing respondents figured into the
common design of raping Iris and as such, the Court finds no reason to charge them for the same.

Therefore, finding no grave abuse of discretion in the following respects, the Court upholds the DOJ
Secretary’s finding of probable cause for the crime of Rape against Gil for all three (3) rape incidents
and against Atty. Reyna and Arturo for the incidents of June 23 to November 9, 2003.

At this juncture, the Court observes that the DOJ charged Gil for Rape in relation to Child Abuse
under Section 5(b), Article III of RA 761087 on account of the December 28, 2001 and April 23, 2002
incidents. Existing jurisprudence, however, proscribes charging an accused for both crimes, rather,
he may be charged only for either. As held in People v. Pangilinan:88

If the victim is 12 years or older, the offender should be charged with either sexual abuse under
Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal
Code. However, the offender cannot be accused of both crimes for the same act because his right
against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for
a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA
7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised
Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.
(Emphasis and underscoring supplied)

In this light, while the Court also finds that probable cause exists for the crime of Child Abuse against
Gil for the same rape incidents of December 28, 2001 and April 23, 2002 in view of the substantial
identity of its elements89 with that of Rape, he cannot be charged for both. Records disclose that
there are standing charges against Gil for Child Abuse in Criminal Case Nos. 03-551 and 03-
549,90 respectively on account of the same occurrences. Thus, so as not to violate his right against
double jeopardy, the Court finds it proper to dismiss the charges of Rape against Gil with respect to
the December 28, 2001 and April 23, 2002 incidents considering the subsisting charges of Child
Abuse as herein discussed.

Notably, Gil, as well as Atty. Reyna and Arturo, cannot be charged for Child Abuse with respect to
the June 23 to November 9, 2003 incidents since Iris had ceased to be a minor by that
time.91 Likewise, Atty. Reyna and Arturo cannot be indicted for Child Abuse in connection with the
December 28, 2001 and April 23, 2002 incidents as there appears to be no sufficient bases to
support the DOJ Secretary’s finding of conspiracy.

Second, the Court further holds that the DOJ Secretary gravely abused his discretion in finding that
probable cause exists for the crime of Serious Illegal Detention.

The elements of the crime of Serious Illegal Detention under Article 267 of the RPC are: (a) that the
offender is a private individual; (b) that he kidnaps or detains another, or in any manner deprives the
latter of his liberty; (c) that the act of detention is illegal, not being ordered by any competent
authority nor allowed by law; and (d) that any of the following circumstances is present: (1) that the
detention lasts for more than five days; or (2) that it is committed by simulating public authority; or (3)
that any serious physical injuries are inflicted upon the person kidnapped or threats to kill him shall
have been made; or (4) that the person kidnapped or detained is a minor, female, or a public
officer.92

Based on the Amended Resolution, the DOJ Secretary charges all the respondents for Serious
Illegal Detention for the incidents of April 23 to 24, 2002 and June 23 until November 9, 2003.
Related to this, records show that Iris retracted her previous testimony wherein she stated that she
voluntarily went with Gil.93 She also stated that she was abducted on June 23, 2003 and brought to
various places, such as Cagayan De Oro, Taytay and San Pedro, within a period of five (5) months.94

Aside from Iris’s bare allegations, records are bereft of any evidence to support a finding that Iris
was illegally detained or restrained of her movement. On the contrary, based on Pros. Lim’s
Resolution dated November 8, 2004, several disinterested witnesses had testified to the fact that Iris
was seen freely roaming in public with Gil,95 negating the quintessential element of deprivation of
liberty.96

Towards the same end, the Court equally observes that the inherent inconsistencies in Iris’s
statements are too dire to ignore even only at the prosecutor’s level. Anent the April 23, 2002
incidents, the Court finds it contrary to both reason and logic that Gil would stop-over at a
McDonald’s restaurant, a place widely open to the public eye, in the process of kidnapping Iris.
Similarly, with respect to the June 23, 2003 incidents, if Iris was indeed abducted and detained
during that time, then it is highly incredible that she would be voluntarily let go by her captors in order
to attend a habeas corpus hearing before justices of the CA.

It is well to note that while the Court had given substantial weight to Iris’s uncorroborated testimony
to sustain the DOJ Secretary’s finding of probable cause for the crime of Rape, the same treatment
cannot be applied to the crime of Serious Illegal Detention. Comparing the two, Rape is an offense
of secrecy97 which, more often than not, happens in a private setting involving only the accused and
the victim; likewise, the degree of humiliation and disgrace befalling a rape victim who decides to
come forward must be taken into consideration.98 For these reasons, the testimony of the latter, even
if uncorroborated, can lead to a conviction. On the other hand, in Serious Illegal Detention, the victim
is usually taken from one place and transferred to another – which is in fact what has been alleged in
this case - making the commission of the offense susceptible to public view. Unfortunately,
petitioners never presented any evidence to show that Iris was restrained of her liberty at any point
in time during the period of her alleged captivity.

All told, given the clear absence of probable cause for the crime of Serious Illegal Detention, the
Court finds that the DOJ Secretary gravely abused his discretion in charging respondents for the
same.

Third, the DOJ Secretary also committed grave abuse of discretion in finding probable cause for the
crime of Forcible Abduction with Rape.

The elements of Forcible Abduction under Article 342 of the RPC are: (a) that the person abducted
is any woman, regardless of her age or reputation; (b) that the abduction must be against her will;
and (c) that the abduction must be with lewd designs.99 As this crime is complexed with the crime of
Rape pursuant to Article 48 of the RPC, the elements of the latter offense must also concur. Further,
owing to its nature as a complex crime proper,100 the Forcible Abduction must be shown to be a
necessary means for committing the crime of Rape.

As earlier discussed, there lies no evidence to prove that Iris was restrained of her liberty during the
period of her captivity from June 23 to November 9, 2003 thus, denying the element of abduction.
More importantly, even if it is assumed that there was some form of abduction, it has not been
shown – nor even sufficiently alleged – that the taking was done with lewd designs. Lust or lewd
design is an element that characterizes all crimes against chastity, apart from the felonious or
criminal intent of the offender.  As such, the said element must be always present in order that they
1âwphi1

may be so considered as a crime of chastity in contemplation of law.101

Moreover, the Court observes that even if it is assumed that all of the elements of Forcible Abduction
were present, it was not shown nor sufficiently alleged how the said abduction constituted a
necessary means for committing the crime of Rape. As earlier discussed, records disclose that there
lies probable cause to indict Gil, Atty. Reyna and Arturo only for the component crime of Rape. In
this accord, the charge of the complex crime of Forcible Abduction with Rape was improper and,
hence, there was grave abuse of discretion.

In sum, the Court finds probable cause for Rape against Gil, Atty. Reyna and Arturo in connection
with the June 23 to November 9, 2003 Incidents. Consequently, the DOJ Secretary is ordered to
direct the City State Prosecutor of Muntinlupa or any of its subordinates to file such charge.
Meanwhile, the charges of Child Abuse against Gil in Criminal Case Nos. 03-551 and 03-549 are
deemed to subsist. Aside from the foregoing, all other charges are hereby nullified on the ground of
grave abuse of discretion. Accordingly, in order to conform with the pronouncements made herein,
the DOJ Secretary is directed to drop (a) any subsisting charges against Jessebel and Grace in
connection with this case; (b) the charge of Rape, in relation to Section 5(b ), Article III of RA 7610,
for the incidents of December 28, 2001 and April 23, 2002 against Gil, Atty. Reyna and Arturo; and
(c) the charges of Serious Illegal Detention and Forcible Abduction with Rape against all
respondents.

WHEREFORE, the petitions are PARTLY GRANTED. The Decision dated January 11, 2008 and
March 13, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 97863 are hereby SET
ASIDE. The Department of Justice is ORDERED to issue the proper resolution in accordance with
this Decision.

SO ORDERED.

G.R. No. 205180, November 11, 2013

RYAN VIRAY, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO JR., J.:

This is a Petition for Review on Certiorari under Rule 45 to reverse and set aside the
August 31, 2012 Decision1 and January 7, 2013 Resolution2 of the Court of Appeals
(CA) in CA-G.R. CR No. 33076, which affirmed with modification the Decision of the
Regional Trial Court of Cavite City, Branch 16 (RTC), in Criminal Case No. 66-07.

The factual backdrop of this case is as follows:

An Information for qualified theft was filed against petitioner Ryan Viray before the
RTC, which reads: chanRoblesvirtualLawlibrary

That on or about 19 October 2006, in the City of Cavite, Republic of the Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, then
being employed as a helper of ZENAIDA VEDUA y SOSA with intent to gain and with
grave abuse of confidence, did then and there, willfully, unlawfully and feloniously
steal, take and carry away several pieces of jewelry, One (1) Gameboy, One (1) CD
player, One (1) Nokia cellphone and a jacket with a total value of P297,800.00
belonging to the said Zenaida S. Vedua, without the latter’s consent and to her damage
and prejudice in the aforestated amount of P297,800.00.

CONTRARY TO LAW.3

When arraigned, the accused pleaded “not guilty.”4 At the pre-trial, the defense
proposed the stipulation, and the prosecution admitted, that the accused was employed
as a dog caretaker of private complainant ZenaidaVedua (Vedua) and was never
allowed to enter the house and he worked daily from 5:00 to 9:00 in the morning.5

During trial, the prosecution presented evidence to prove the following:

Private complainant Vedua maintains seventy-five (75) dogs at her compound in

Caridad, Cavite City.6 To assist her in feeding the dogs and cleaning their cages, private
complainant employed the accused who would report for work from 6:00 a.m. to 5:30
p.m.7 On October 19, 2006, at around 6:30 in the morning, accused arrived for work.
Half an hour later or at 7 o’clock, private complainant left for Batangas. Before
leaving, she locked the doors of her house, and left the accused to attend to her
dogs. Later, at around 7:00 in the evening, private complainant arrived home, entering
through the back door of her house. As private complainant was about to remove her
earrings, she noticed that her other earrings worth PhP 25,000 were missing. She then
searched for the missing earrings but could not find them.8

Thereafter, private complainant also discovered that her jacket inside her closet and her
other pieces of jewelry (rositas) worth PhP 250,000 were also missing. A Gameboy
(portable videogame console), a compact disc player, a Nokia cellular phone and a Nike
Air Cap were likewise missing. The total value of the missing items supposedly
amounted to PhP 297,800. Private complainant immediately checked her premises and
discovered that the main doors of her house were destroyed.9 A plastic bag was
also found on top of her stereo, which was located near the bedroom. The plastic bag
contained a t-shirt and a pair of shorts later found to belong to accused.10

Witness Nimfa Sarad, the laundrywoman of Vedua’s neighbor, testified seeing Viray at
Vedua’s house at 6:00 a.m. By 11:00 a.m., she went out on an errand and saw Viray
with an unidentified male companion leaving Vedua’s house with a big sack.11

Another witness, Leon Young, who prepares official/business letters for Vedua, testified
that he went to Vedua’s house between 10:00 and 11:00 am of October 19, 2006 to
retrieve a diskette and saw petitioner with a male companion descending the stairs of
Vedua’s house. He alleged that since he knew Viray as an employee of private
complainant, he simply asked where Vedua was. When he was told that Vedua was in
Batangas, he left and went back three days after, only to be told about the robbery.12

Prosecution witness Beverly Calagos, Vedua’s stay-out laundrywoman, testified that on

October 19, 2006, she reported for work at 5:00 a.m. Her employer left for Batangas at
7:00 am leaving her and petitioner Viray to go about their chores. She went home
around 8:30 a.m. leaving petitioner alone in Vedua’s house. Meanwhile, petitioner
never reported for work after that day.13

For his defense, Viray averred that he did not report for work on the alleged date of the
incident as he was then down with the flu. His mother even called up Vedua at 5:30
a.m. to inform his employer of his intended absence. Around midnight of October 20,
2006, Vedua called Viray’s mother to report the loss of some valuables in her house
and alleged that Viray is responsible for it. Petitioner’s sister and aunt corroborated his
version as regards the fact that he did not go to work on October 19, 2006 and stayed
home sick.14

After the parties rested their respective cases, the trial court rendered a Decision dated
December 5, 2009,15 holding that the offense charged should have been robbery and
not qualified theft as there was an actual breaking of the screen door and the main door
to gain entry into the house.16 Similarly, Viray cannot be properly charged with qualified
theft since he was not a domestic servant but more of a laborer paid on a daily basis for
feeding the dogs of the complainant.17

In this light, the trial court found that there is sufficient circumstantial evidence to
conclude that Viray was the one responsible for the taking of valuables belonging to
Vedua.18 Hence, the RTC found petitioner Viray guilty beyond reasonable doubt
of robbery and sentenced him, thus: chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing considerations, the Court finds the accused RYAN
VIRAY GUILTY beyond reasonable doubt for the crime of robbery and hereby sentences
him to suffer the indeterminate imprisonment ranging from FOUR (4) years, TWO (2)
months and ONE (1) day of prision correccional, as minimum, to EIGHT (8) years
of prision mayor, as maximum.

SO ORDERED.19

Aggrieved, petitioner elevated the case to the CA.

The appellate court found that the Information filed against Viray shows that the
prosecution failed to allege one of the essential elements of the crime of robbery, which
is “the use of force upon things.” Thus, to convict him of robbery, a crime not
necessarily included in a case of qualified theft, would violate the constitutional
mandate that an accused must be informed of the nature and cause of the accusation
against him.20

Nonetheless, the CA held that a conviction of the accused for qualified theft is
warranted considering that Viray enjoyed Vedua’s confidence, being the caretaker of
the latter’s pets. Viray committed a grave abuse of this confidence when, having access
to the outside premises of private complainant’s house, he forced open the doors of the
same house and stole the latter’s personal belongings.21 In its assailed Decision, the
appellate court, thus, modified the ruling of the trial court holding that the accused is
liable for the crime of qualified theft.

As to the penalty imposed, considering that there was no independent estimate of the
value of the stolen properties, the CA prescribed the penalty under Article 309(6)22 in
relation to Article 31023 of the Revised Penal Code (RPC).24 The dispositive portion of the
assailed Decision reads, viz:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The
appealed Decision of the court a quo is hereby AFFIRMED with MODIFICATION that the
accused-appellant be convicted for the crime of QUALIFIED THEFT and is hereby
sentenced to suffer indeterminate imprisonment of four (4) months and one (1) day
of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day
of prision correccional, as maximum. The appellant is also ordered to return the pieces
of jewelry and other personal belongings taken from private complainant. Should
restitution be no longer possible, the accused appellant must pay the equivalent value
of the unreturned items.

SO ORDERED.25

When the appellate court, in the adverted Resolution of January 7, 2013,26 denied his
motion for reconsideration,27 Viray interposed the present petition asserting that the CA
committed a reversible error in finding him guilty. Petitioner harps on the supposed
inconsistencies of the testimonies of the prosecution witnesses in advancing his position
that the evidence presented against him fall short of the quantum of evidence
necessary to convict him of qualified theft.28

In the meantime, in its Comment29 on the present petition, respondent People of the
Philippines asserts that the alleged inconsistencies in the testimonies of the prosecution
witnesses are so insignificant and do not affect the credibility and weight of their
affirmation that petitioner was at the crime scene when the crime was committed.30 In
fact, these minor inconsistencies tend to strengthen the testimonies because they
discount the possibility that they were fabricated.31 What is more, so respondent
contends, these positive testimonies outweigh petitioner’s defense of denial and alibi.32

In resolving the present petition, We must reiterate the hornbook rule that this court is
not a trier of facts, and the factual findings of the trial court, when sustained by the
appellate court, are binding in the absence of any indication that both courts
misapprehended any fact that could change the disposition of the controversy.33

In the present controversy, while the CA modified the decision of the trial court by
convicting petitioner of qualified theft rather than robbery, the facts as found by the
court a quo were the same facts used by the CA in holding that all the elements of
qualified theft through grave abuse of confidence were present. It is not, therefore,
incumbent upon this Court to recalibrate the evidence presented by the parties during
trial.

Be that as it may, We find it necessary to modify the conclusion derived by the

appellate court from the given facts regarding the crime for which petitioner must be
held accountable.

Art. 308 in relation to Art. 310 of the RPC describes the felony of qualified theft: chanRoblesvirtualLawlibrary

Art. 308. Who are liable for theft.– Theft is committed by any person who, with intent
to gain but without violence against, or intimidation of persons nor force upon things,
shall take personal property of another without the latter’s consent.

xxx

Art. 310. Qualified Theft. – The crime of theft shall be punished by the penalties next
higher by two degrees than those respectively specified in the next preceding article, if
committed by a domestic servant, or with grave abuse of confidence, or if the
property stolen is motor vehicle, mail matter or large cattle or consists of coconuts
taken from the premises of the plantation, fish taken from a fishpond or fishery or
property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any
other calamity, vehicular accident or civil disturbance. (Emphasis supplied.)

The crime charged against petitioner is theft qualified by grave abuse of confidence. In
this mode of qualified theft, this Court has stated that the following elements must be
satisfied before the accused may be convicted of the crime charged:

1. Taking of personal property;

2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
 4. That it be done without the owner’s consent;
5. That it be accomplished without the use of violence or intimidation against
persons, nor of force upon things; and
6. That it be done with grave abuse of confidence.34

As pointed out by both the RTC and the CA, the prosecution had proved the existence
of the first four elements enumerated above beyond reasonable doubt.

First, it was proved that the subjects of the offense were all personal or movable
properties, consisting as they were of jewelry, clothing, cellular phone, a media player
and a gaming device. Second, these properties belong to private complainant
Vedua. Third, circumstantial evidence places petitioner in the scene of the crime during
the day of the incident, as numerous witnesses saw him in Vedua’s house and his
clothes were found inside the house. He was thereafter seen carrying a heavy-looking
sack as he was leaving private complainant’s house. All these circumstances portray a
chain of events that leads to a fair and reasonable conclusion that petitioner took the
personal properties with intent to gain, especially considering that, fourth, Vedua had
not consented to the removal and/or taking of these properties.

With regard to the fifth and sixths elements, however, the RTC and the CA diverge in
their respective Decisions.

The RTC found that the taking committed by petitioner was not qualified by grave
abuse of confidence, rather it was qualified by the use of force upon things. The trial
court held that there was no confidence reposed by the private complainant on Viray
that the latter could have abused. In fact, Vedua made sure that she locked the door
before leaving. Hence, Viray was compelled to use force to gain entry into Vedua’s
house thereby committing the crime of robbery, not theft.

The CA, on the other hand, opined that the breaking of the screen and the door could
not be appreciated to qualify petitioner’s crime to robbery as such use of force was not
alleged in the Information. Rather, this breaking of the door, the CA added, is an
indication of petitioner’s abuse of the confidence given by private complainant. The CA
held that “[Viray] enjoyed the confidence of the private complainant, being the
caretaker of the latter’s pets. He was given access to the outside premises of private
complainant’s house which he gravely abused when he forced open the doors of the
same house and stole the latter’s belongings.”35 Committing grave abuse of confidence
in the taking of the properties, petitioner was found by the CA to be liable for qualified
theft.

This Court is inclined to agree with the CA that the taking committed by petitioner
cannot be qualified by the breaking of the door, as it was not alleged in the
Information. However, we disagree from its finding that the same breaking of the door
constitutes the qualifying element of grave abuse of confidence to sentence petitioner
Viray to suffer the penalty for qualified theft. Instead, We are one with the RTC that
private complainant did not repose on Viray “confidence” that the latter could have
abused to commit qualified theft.

The very fact that petitioner “forced open” the main door and screen because he was
denied access to private complainant’s house negates the presence of such confidence
in him by private complainant. Without ready access to the interior of the house and
the properties that were the subject of the taking, it cannot be said that private
complaint had a “firm trust” on petitioner or that she “relied on his discretion”36 and
that the same trust reposed on him facilitated Viray’s taking of the personal properties
justifying his conviction of qualified theft.

To warrant the conviction and, hence, imposition of the penalty for qualified theft, there
must be an allegation in the information and proof that there existed between the
offended party and the accused such high degree of confidence37or that the stolen
goods have been entrusted to the custody or vigilance of the accused.38 In other words,
where the accused had never been vested physical access to,39 or material possession
of, the stolen goods, it may not be said that he or she exploited such access or material
possession thereby committing such grave abuse of confidence in taking the property.
Thus, in People v. Maglaya,40 this Court refused to impose the penalty prescribed for
qualified theft when the accused was not given material possession or access to the
property:chanRoblesvirtualLawlibrary
Although appellant had taken advantage of his position in committing the crime
aforementioned, We do not believe he had acted with grave abuse of confidence
and can be convicted of qualified theft, because his employer had never given
him the possession of the machines involved in the present case or allowed
him to take hold of them, and it does not appear that the former had any
special confidence in him. Indeed, the delivery of the machines to the prospective
customers was entrusted, not to appellant, but to another employee.

Inasmuch as the aggregate value of the machines stolen by appellant herein is

P13,390.00, the crime committed falls under Art. 308, in relation to the first subdivision
of Art.309 of the Revised Penal Code, which prescribes the penalty of prisión mayor in
its minimum and medium periods. No modifying circumstance having attended the
commission of the offense, said penalty should be meted out in its medium period, or
from 7 years, 4 months and 1 day to 8 years and 8 months of prisión mayor. The
penalty imposed in the decision appealed from is below this range. (Emphasis and
underscoring supplied.)

The allegation in the information that the offender is a laborer of the offended party
does not by itself, without more, create the relation of confidence and intimacy required
by law for the imposition of the penalty prescribed for qualified theft.41 Hence, the
conclusion reached by the appellate court that petitioner committed qualified theft
because he “enjoyed the confidence of the private complainant, being the caretaker of
the latter’s pets” is without legal basis. The offended party’s very own admission that
the accused was never allowed to enter the house42 where the stolen properties were
kept refutes the existence of the high degree of confidence that the offender could have
allegedly abused by “forc[ing] open the doors of the same house.”43

Without the circumstance of a grave abuse of confidence and considering that the use
of force in breaking the door was not alleged in the Information, petitioner can only be
held accountable for the crime of simple theft under Art. 308 in relation to Art. 309 of
the RPC.

As for the penalty, We note with approval the observation made by the appellate court
that the amount of the property taken was not established by an independent and
reliable estimate. Thus, the Court may fix the value of the property taken based on the
attendant circumstances of the case or impose the minimum penalty under Art. 309 of
the RPC.44 In this case, We agree with the observation made by the appellate court in
accordance with the rule that “if there is no available evidence to prove the value of the
stolen property or that the prosecution failed to prove it, the corresponding penalty to
be imposed on the accused-appellant should be the minimum penalty corresponding to
theft involving the value of P5.00.”45 Accordingly, We impose the prescribed penalty
under Art. 309(6) of the RPC, which is arresto mayor in its minimum and medium
periods. The circumstance of the breaking of the door, even if proven during trial,
cannot be considered as a generic aggravating circumstance as it was not alleged in the
Information.46 Thus, the Court finds that the penalty prescribed should be imposed in its
medium period, that is to say, from two (2) months and one (1) day to three (3)
months of arresto mayor.

Lastly, We delete the order for the reparation of the stolen property. Art. 2199 of the
Civil Code is clear that “one is entitled to an adequate compensation only for such
pecuniary loss suffered by him, as he has duly proved.” Since, as aforesaid, the
testimony of the private complainant is not sufficient to establish the value of the
property taken, nor may the courts take judicial notice of such testimony, We cannot
award the reparation of the stolen goods.47 ChanRoblesVirtualawlibrary

WHEREFORE, the CA Decision of August 31, 2012 in CA-G.R. CR No. 33076

is AFFIRMED with MODIFICATION. Petitioner Ryan Viray is found GUILTY beyond
reasonable doubt of SIMPLE THEFT and is sentenced to suffer the penalty of
imprisonment for two (2) months and one (1) day to three (3) months of arresto
mayor. Further, for want of convincing proof as to the value of the property stolen, the
order for reparation is hereby DELETED.

SO ORDERED.

G.R. No. 179267               June 25, 2013

JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,
Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that,
for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or
any person who has or had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and
other local government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.
Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her
to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was
just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
and shook her with such force that caused bruises and hematoma. At another time, petitioner hit
private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom
he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered
to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's job.
He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation – of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of ₱20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than ₱200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16 After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering
that he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act
No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from her
when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioner may be temporarily residing.
 c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation
rights to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house
for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must submit to the Court not later than 2
April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the
Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred
Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php 50,000.00) per month until the matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the
bond from ₱5,000,000.00 to a more manageable level at ₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the
 petitioners have left, so that the petitioner Rosalie and her representatives can remove
things from the conjugal home and make an inventory of the household furniture, equipment
and other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24 for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts

of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating

in any form with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents,
from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers,
her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well as from the schools of the
three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will
be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to
the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00

for rental for the period from August 6 to September 6, 2006; and support in arrears from
March 2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;
 7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another vehicle which is the one taken by J
Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those in
which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent
have an interest in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets or those in which
the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an
interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT
Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a
copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that
her signature will be forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he
has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each expiration, until further orders,
and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against
the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure
of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the
trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT

R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law."46 The Constitution vests the power of
judicial review or the power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of
any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where
such constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in
part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his Opposition to the petition for protection order before the
RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this
Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why
a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any claim
by one party against a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein.51 Finally, a third-party complaint is a claim
that a defending party may, with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.52 As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence.54 Be that as it may, Section
25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may
issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

 (c) Evidence, including objects and documents that have been marked and will be
presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day,
to the extent possible, within the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to litigate the constitutional issues,
without necessarily running afoul of the very purpose for the adoption of the rules on summary
procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted
an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of
a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a time,56 should
not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure"62 – an amalgamation of
two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 – providing protection to "all family members, leaving no one in isolation" but at
the same time giving special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence
apart from against women as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator respond to this kind
of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for victims. This includes the
men, children, live-in, common-law wives, and those related with the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women
and not to families which was the issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity
to file a case against their spouses, their live-in partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult situation for women, Mr.
President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to
the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because
the family members have been included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That
will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is
not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers, even by their mothers. And it breaks my heart to find
out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that.
It will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but
not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and abuse to whom the State extends its
protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's companions and supporters,
and take on subordinate roles in society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the
early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of
men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards
the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her,
spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for women's right to vote, to own
property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women
per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents
involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the law
of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of
the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women
and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of
these reported cases were committed by the women's intimate partners such as their husbands and
live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence

against women across an eight-year period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 200 200 200 200 200 200

2010 2011
Cases 4 5 6 7 8 9

Rape 997 927 659 837 811 770 1,042 832

 Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lasciviousn 580 536 382 358 445 485 745 625
ess

Physical 3,55 2,33 1,89 1,50 1,30 1,49

2,018 1,588
Injuries 3 5 2 5 7 8

Sexual
53 37 38 46 18 54 83 63
Harassment

1,26 2,38 3,59 5,28

RA 9262 218 924 9,974 9,021
9 7 9 5

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinag
121 102 93 109 109 99 158 128
e

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,10 12,94

Total
1 4 1 9 5 5 4 8

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are relatively low and, perhaps, because many
men will not even attempt to report the situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and women constituted 89%
of all those who had experienced 4 or more incidents of domestic violence.75 Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury than the other
way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse
are in self-defense or the result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles
to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-
drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its application is limited to
owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but
similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-
vehicle-drawing animals that also traverse the city roads, "but their number must be negligible and
their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative classification may result
in actual inequality is not violative of the right to equal protection, for every classification of persons
or things for regulation by law produces inequality in some degree, but the law is not thereby
rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that the widespread
gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" – first at the hands of the offender and then of the
legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner"
and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila
even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of
absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack
of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific measures
focused on women does not discriminate against men.82 Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves
scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for
men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the development
of a distinct mindset on the part of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy, as
follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect
the family and its members particularly women and children, from violence and threats to their
personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August
5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on
October 6, 2003.86 This Convention mandates that State parties shall accord to women equality with
men before the law87 and shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and
their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as

a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of
the family to which the victim belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of
common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any

legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

 4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast
between the innocent and the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at
its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld –
not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of
Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (Go-
Tan's husband) had community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented,"99 the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests,103 among which is protection of women and children from violence and threats to their
personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should
not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future employment
and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To be heard" does
not only mean verbal arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation
rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days
(5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time,
and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due
process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that
this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or
all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to
the residence, remain there until the respondent has gathered his things and escort him from the
residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection
is problematic because the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act.  A Punong Barangay who
1âwphi1

receives applications for a BPO shall issue the protection order to the applicant on the date of filing
after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her
child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and
to "maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that
an imminent danger of violence against the woman and her children exists or is about to recur that
would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor
is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a
BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and other law enforcement agencies is
consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with
full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare
of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of
law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

G.R. No. 182522               March 7, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NOEL T. ADALLOM, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

This is a review on appeal of the Decision dated July 31, 2007 of the Court of Appeals in CA-G.R.
1 

CR.-H.C. No. 00365, which affirmed in toto the Decision dated December 15, 2003 by the Regional
2 

Trial Court (RTC), Branch 76, Quezon City, in Criminal Case Nos. Q-01-105875 and Q-01-105877,
finding accused-appellant Noel T. Adallom guilty beyond reasonable doubt of the crimes of murder
and attempted murder.

Accused-appellant was originally charged with two (2) counts of murder and one (1) count of
attempted murder under the following Informations:

Criminal Case No. Q-01-105875

That on or about the 28th day of October 2001, in Quezon City, Philippines, the above-named
accused, conspiring, confederating with two other persons whose true names and other personal
circumstances have not as yet been ascertained and mutually helping one another, did then and
there willfully, unlawfully and feloniously, with intent to kill, qualified with evident premeditation and
treachery, taking advantage of superior strength, assault, attack and employ personal violence upon
the person of DANILO VILLAREAL y ESPIRAS by then and there shooting him with the use of a
firearm hitting him on the different parts of his body, thereby inflicting upon him serious and mortal
gunshot wounds which were the direct and immediate cause of his untimely death, to the damage
and prejudice of the heirs of said Danilo Villareal y Espiras. 3

Criminal Case No. Q-01-105876

That on or about the 28th day of October 2001, in Quezon City, Philippines, the above-named
accused, conspiring, confederating with two other persons whose true names and other personal
circumstances have not as yet been ascertained and mutually helping one another, did then and
there willfully, unlawfully and feloniously, with intent to kill, qualified with evident premeditation and
treachery, taking advantage of superior strength, assault, attack and employ personal violence upon
the person of ROMMEL HINA by then and there shooting him with the use of a firearm hitting the
latter on the head, thereby inflicting upon him serious and mortal gunshot wound which was the
direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of said
Rommel Hina. 4

Criminal Case No. Q-01-105877

That on or about the 28th day of October [2001], in Quezon City, Philippines, the above-named
accused, conspiring, confederating with two other persons whose true names and identities have not
as yet been ascertained and mutually helping one another, with intent to kill, qualified with evident
premeditation, treachery and taking advantage of superior strength, did then and there willfully,
unlawfully and feloniously commence the commission of the crime of murder directly by overt acts,
by then and there shooting one BABELITO E. VILLAREAL with the use of a firearm but said accused
were not able to perform all the acts of execution which should produce the crime of murder by
reason of some cause or accident other than their own spontaneous desistance, that is complainant
was able to ran away, to the damage and prejudice of the said offended party. 5

When arraigned on January 15, 2002, accused-appellant pleaded not guilty to the charges against
him.6

At the pre-trial conference on January 29, 2002, the parties stipulated only as to the deaths of Danilo
Villareal (Danilo) and Rommel Hina (Rommel). 7

Thereafter, trial ensued.

The prosecution presented four witnesses, namely: Babelito Villareal (Babelito), Danilo’s brother
8 

who survived the shooting; Janita Villareal (Janita), Danilo’s wife; Dr. Joselito Rodrigo (Joselito), the
9  10 

Chief Medico Legal of the Philippine National Police (PNP) Crime Laboratory who examined Danilo’s
cadaver; and Diorito Coronas, Jr. (Diorito), who was present at the time and place of the shooting.
11 

Below are the testimonies of Babelito and Diorito as summarized by the RTC:

Prosecution witness Babelito Villareal, a construction worker and residing at 120 Senatorial Road,
Barangay Batasan Hills, Quezon City, testified that he was with his brother, Danilo, and Rommel
Hina, a neighbor, towards midnight of October 27, 2001 in front of the store of his sister, Nanieta. His
house was just across the street. They were drinking beer but ran out of it. Danilo asked Rommel
Hina to buy cigarettes from a nearby store because their sister’s store was already closed. When
Hina returned, they stayed in the same place. Babelito had his back against the wall fronting the
road while he was facing his brother’s back. Hina was on his right side. Soon a tricycle with its lights
out and its engine turned off, arrived. It was still moving because the road was on a downward slope.
He saw Noel Adallom alight from the sidecar. Adallom was with Johnwayne Lindawan and a tricycle
driver. After Adallom alighted, he fired his carbine. There was a successive burst of gunfire and
Adallom was saying, "Ano? Ano?" His brother went down and Rommel Hina was moaning. The
tricycle came from his left side. When Adallom fired his gun, Danilo turned his head and tried to run
but he was hit at the back. He himself, when he saw the gunfire just closed his eyes and leaned
against the wall and turned his head to the right and moved his leg downward just waiting for what
would happen next. When his brother and Rommel fell, the firing stopped and when he turned his
head, he noticed that Adallom upon seeing him alive, again fired successive shots and then he
heard, "tak-tak." The gun must have jammed then he heard another burst of gunfire, "rat-tat-tat." He
sought cover beside a vehicle and ran. He showed some pictures and pointed to the place he
testified on (see Exhibit A). There were bullet marks shown in the pictures (Exhibit B). He ran to an
alley and then he went back to Senatorial Road where the incident happened and saw people milling
around. His brother was already dead while Rommel Hina was rushed to the hospital. Noel Adallom,
a long time resident of their place is the cousin of the husband of his sister while Johnwayne
Lindawan is the son of his brother-in-law. During the wake of his brother, he saw Johnwayne with a
new haircut. Adallom also had a new haircut. They used to have long hair prior to the incident. Both
of them were sporting army cut. He tried to watch Adallom’s movements. He saw him fixing the gate
of his house and when he could not take it anymore he told Jeanette, the wife of his brother Danilo
Villareal, that what Adallom was doing was very insulting. He did not give any statement to the police
because there was still the wake and he wanted to consult Jeanette who was very confused. He
knows that it is hard to fight an Ifugao. After the funeral, he told his siblings about the incident. They
decided to have Adallom arrested. His Ate Jeanette went to Station 6 but the police were not
cooperative and he was losing heart. On November 19, 2001, he saw Adallom alight in front of his
house. He asked his siblings to go to the barangay hall while he waited for Adallom because he
might leave. When the barangay people came, they picked him up and informed him about the
complaint against him. Adallom was detained at the barangay hall and taken at Station 6. Babelito
executed a sinumpaang salaysay marked Exhibit C.
On cross examination, among others, he said that Adallom’s house is just near the eskinita. The
following day when he saw Adallom sporting a new haircut, he tried to keep track of his movements.
He did that for several days. He was shown a sketch marked as Exhibit D for the prosecution and
said, the house of his sister was along Senatorial Road at the corner of an alley in Avocado Street.
After Adallom alighted from the tricycle, he positioned himself before he fired the shots. When
Babelito returned to the scene of the incident, he instructed some people to bring Rommel Hina to
the hospital. He saw Agustin Adallom and Anderson Tuguinay that night. He saw Adallom’s wife by
the gate of their house. He did not see Noel Adallom after the incident. The police investigators
came to the scene and he went with them to the Criminal Investigation Unit. The investigator was
Lawa-Lawa. When he was about to give a statement at the Criminal Investigation Unit, Nathaniel
Hina, the father of Rommel appeared and he was telling a different story. Nathaniel was a usual
drinking companion of Noel Adallom. Immediately prior to the incident, Rommel’s father was coming
down from the tricycle with some companions, the barkada of Noel Adallom, he passed by the
eskinita and took a look at them. That was before the tricycle with Adallom as passenger passed by.
At the police precinct Rommel’s father was saying that it was another Ifugao, a certain Hubert who
was responsible for the shooting. Because of this incident with the father of Rommel, he did not give
a statement. He reiterated that he saw his brother hit as he was slowly moving his head and then he
closed his eyes. After the first burst of gunfire it stopped for a while. When the gunman saw him, he
raised his gun again and pointed it at him then he heard, "pak." It did not fire then he heard
successive shots. He saw Adallom with the carbine only that night but he knew that his family has a
carbine. He was shown a photograph marked Exhibit 2 depicting the wall of his sister Nanette’s store
marked as Exhibits A and B. There were no chairs in front of the store even when they were
drinking. He was there first before Danilo and Rommel arrived. There were also two women who
came thirty (30) minutes prior to the incident Danilo and Rommel had been drinking in front of his
house. When they arrived, they gave him a bottle of beer to drink. And then, Danilo asked Rommel
to buy cigarettes at Anderson’s store. The father of Rommel arrived and stared at them, just as
Rommel arrived. He knows that Nathaniel gave a statement at the police station. Although in his
affidavit he also mentioned Johnwayne Lindawan, the police have not arrested him. Lindawan also
alighted from the back of the tricycle driver and he stood by the side of the road. He could not
identify the tricycle driver.

Diorito Coronas, Jr., a billiard player by profession, usually played at the billiard hall near the house
of Noel Adallom in Sarep Street on the right side going up the road. On October 28, 2001, about
midnight, he was at the videoke bar, his usual hang out in Sitio 6 going towards Talanay. While
there, he heard gunfire so he immediately went near a parked vehicle in front of the videoke bar.
When he tried to investigate, he saw three persons fall to the ground (Bumulagta noong
pinagbabaril). Two of them were already down and the third one stood up and ran even as the
gunman continued firing. He identified the man who ran away as Babelito Villareal (Samboy). It was
Noel Adallom whom he saw carrying the firearm which he described as a little less than 2 feet,
shooting the three men. He saw Adallom’s companion and a third one who was manning the tricycle.
The place of the incident was well lighted but from where he was standing, the light came only from
the videoke bar. Then he noticed a yellow tricycle without any plate number moving toward his
direction while the two other guys went to the opposite direction going upward. When he saw that
they left, he immediately approached the two men lying down. He identified one of them as Rommel
who was still moaning. He became apprehensive that someone might see him and his family might
be involved. He ran toward his house. He identified three sets of pictures marked Exhibits A and B.
He pointed to the place where the three guys who were shot at were positioned.

On cross examination, Coronas identified the owner of the videoke bar as Anderson Tuguinay. 12

Janita, when she took the witness stand, detailed the expenses incurred for the funeral and burial of
her husband, Danilo.

Dr. Joselito reported that as a result of his autopsy examination of Danilo’s body, he had determined
that Danilo died from hemorrhagic shock due to multiple gunshot wounds. There were six gunshot
wounds in Danilo’s trunk and lower extremities. All points of entry were at Danilo’s back. There were
five exit wounds at the front portion of Danilo’s body while one slug was recovered in Danilo’s liver.
Dr. Joselito submitted the recovered slug for ballistic examination. Dr. Joselito further elaborated on
his findings during his cross-examination:

On cross examination, among others, he stated that the autopsy was conducted on October 28,
2001 at around 11:30 a.m. The abrasion on the victim’s right acromial region was caused by friction
of the skin on a rough hard surface. Gunshot wound no. 1 was directed anteriorwards, upwards and
lateralwards meaning it came from the back, traveled upwards from the center towards the sides. Its
point of entry was 10 cm. from the posterior midline while the point of exit was 20 cm. from the
posterior midline. The point of entry of gunshot wound No. 2 (depicted as POE No. 1 in Exhibit J) is
4 cm. from the posterior midline and exited 6 cm. from the anterior midline. The bullet traversed from
the rear to the front going to the right side of the cadaver. The third gunshot wound’s point of entry is
at the right infrascapular region end exited also on the right side of the chest but more towards the
outer portion. The fourth gunshot wound’s point of entry is on the left side, back to front, lateralwards
meaning from center or near the center towards the most outer part of the left side of the body. The
entrance and exit wound were on the same level. It is superficial wound meaning it did not enter the
peritonial cavity. The fifth gunshot wound was directed anteriorwards, downwards and medialwards.
Anteriorward means from the back, it is noted downwards towards the foot while medialwards is
towards the center. The sixth and final gunshot wound was sustained at the right buttocks directed
anteriorwards, upwards and lateralwards, meaning from the back upwards going to the head and
lateralwards, meaning from the center to the outer side of the cadaver. Since the entrance wounds
were at the back of the cadaver, assuming the victim was not moving, the assailant or muzzle of the
gun was at the back of the victim. Except for the fourth gunshot wound which entered and exited at
the same level and the fifth gunshot wound which was downwards, all the other gunshot wounds
were directed upwards. If the victim was in a sitting position at the time he sustained the wounds
with an upward trajectory, he would probably be in a ducking position, hence the upward trajectory. If
the victim was stationary at the time he was shot, it is possible the assailant was moving but the
most probable explanation for the differences in the level of the points of entry in relation to the
points of exit of the wounds is that the victim moved as a result of the force of the bullet that entered
his body. The slug that he extracted from the cadaver of the victim was from a .30 caliber firearm
based on the report of the ballistician.
13

The defense presented the testimonies of accused-appellant himself; Mila Adallom (Mila), accused-
14  15 

appellant’s wife; Aida Marquez (Aida); Sgt. Anderson Tuguinay (Anderson); Sgt. Agustin Adallom
16  17 

(Agustin); Editha Gutierrez (Editha); and Elizabeth Buyayo (Elizabeth).

18  19  20

Accused-appellant interposed the defenses of denial and alibi, to wit:

Noel Adallom, a machine operator, testified that on October 27, 2001, he arrived home from work at
about 11:00 o’clock in the evening and he saw his wife working on the screen. He had coffee
because he was not yet sleepy. He told his wife that he was going to the billiard hall at Retota. On
his way, he saw the group of Boying Hina having a drinking spree. They gave him a shot of liquor
but he refused because in that place, riots were rampant. He has known Boying Hina since he
started residing in Batasan Hills in 1988. He went to the billiard hall owned by Ilustre. He is a new
player and he played in with one Zaldy. After that, he transferred to the Retota billiard hall. He
arrived there at about midnight. He played billiard with Danilo and Dominador Baldaba. They were
playing when they heard gunshots. The sound of the gun fire was rat-tat-tat. They continued playing
billiard until his wife arrived to fetch him. They stopped playing and he went with her. His wife asked
him to pass by Senatorial Road where the sounds of gunshots came from. He saw Nanette Villareal
Lindawan and asked her what was happening. Nanette was crying and she said, "Patay na si kuya,"
referring to Danilo Villareal. He has known Nanette from the time she got married. He talked to her in
front of her house in the middle portion of Senatorial Road. He identified a picture marked Exhibit 3
showing the place where he talked to Nanette. When he was about to leave the place, he saw Sgt.
Tuguinay holding a flashlight. When he asked Sgt. Tuguinay what happened, Tuguinay looked at
him and did not say anything. He proceeded to talk with Sgt. Agustin when a police patrol arrived.
The police were asking for someone who witnessed the incident. Babelito Villareal came out
shirtless and boarded a mobile. He and his wife proceeded home. The place as shown in Exhibit 3
was not lighted. It was illuminated by some lights from other houses about ten meters away and you
would not be able to recognize faces. When shown a sketch, Exhibit 1, he pointed the billiard place
of Retota (Exhibit 1-I). The Avocado Road alley was marked Exhibit 3-A. He was passing by that
alley everyday in front of the house of Nanette. For the month of October 1 to 15, he was assigned
to the first shift and went to work in the morning from 6:00 to 3:00 o’clock. From October 16 to the
end of that month, he was on the second shift arriving home at 11:00 o’clock in the evening. There
was no electric bulb in front of the house of Nanette. Across the house of Nanette is the house of
Sgt. Agustin Adallom. There was no bulb in front of his house. In the morning of October 28, 2001,
he was planting pechay at the house of Agustin Adallom at about 9:00 o’clock in the morning. On
succeeding days after the incident, he usually left the house at noontime because his work started at
2:00 o’clock in the afternoon. He identified his time record from October 1 to 15 marked Exhibit 4;
the time card for October 16-31 marked Exhibit 4-A; the time card for November 1-15 marked Exhibit
4-B; and the time card for November 16-30 marked as Exhibit 4-C. Exhibit number 7 has no
signature because that was the time he was arrested on November 19. When he is not working he
stayed at home. At the time he was arrested he was preparing coffee when he heard someone
calling from outside and found out that they were barangay officials looking for him. He saw one
BSDO jump over the fence with a gun so he became afraid. They told him that he was the one who
killed Danilo Villareal. They were not accompanied by policemen. He was asking them why he was
being apprehended without a warrant of arrest. They told him to give his explanation at the barangay
office. He was handcuffed. They just placed him inside the cell for an hour. Policemen came and
brought him to Station 6. On the 20th of November, he was brought to Camp Karingal and they
asked for his name and occupation. They brought him to a vacant room and asked him, "bakit mo
pinatay si Villareal." He said he did not commit the crime and they brought him back to the cell. On
the 21st of November, he was brought to Quezon City Hall for inquest. He saw the name of Wilfredo
Maynigo on top of his table. Upon investigation the prosecutor placed on top of the paper, "for
further," (see Exhibit 8). He knows Danilo Villareal and his wife Janita because their wives were
doing business of paluwagan. He met his wife in the house of Agustin Adallom and he did not know
that she and Danilo had an affair.

On cross examination, Noel Adallom said that he works as a machine operator since 1988. He
recalled that October 28, 2001 was a Sunday and it was his day-off. He was alone when he went to
Retota billiard hall near Senatorial Road after telling his wife that he would go there. Riots frequently
happen on the upper portion of Senatorial Road. When they heard gunshots they were playing
billiard, and they stopped momentarily. He was married to Mila Adallom in the year 2000 at a mass
wedding but he knew her since 1992. He did not have any knowledge that Danilo and his wife were
having an affair. He does not know of any such relationship nor did he hear any gossip about that.
He knew Babelito Villareal since 1988. There had been no quarrel between them and does not know
why he would point to him as the assassin. Mila fetched him that early morning of October 28, 2001
at Retota. He would have still played billiard with Danilo and Dominador but Mila came and asked
him to go home because there was a shooting at the upper portion of Senatorial Road. After the
incident he talked with Nanette, sister of Danilo Villareal and Babelito Villareal, and asked her what
happened. She told him that [her] kuya was dead. He has known Danilo since 1998 because
Danilo’s wife and his wife were engaged in a paluwagan business. He seldom talked with Danilo
Villareal because both of them were working and they seldom saw each other. He does not know of
any reason to be jealous of Danilo because he does not know anything about the alleged
relationship between him and his wife. 21

Mila confirmed on the witness stand that her husband, accused-appellant, went out to play billiards
at around 11:30 p.m. on October 27, 2001. After midnight, she heard a burst of gunfire. Fearing that
accused-appellant might get into trouble, Mila decided to fetch accused-appellant at Retota’s billiard
hall. When she reached the billiard hall, Mila asked accused-appellant, who was then still playing
billiards, to go home with her. To get home, Mila and accused-appellant took the route from Avocado
Street to Senatorial Road. There, at Senatorial Road, Mila saw Danilo and Rommel already
sprawled on the ground. On cross-examination, Mila denied having an affair with the deceased
Danilo.

Aida, an ambulant vendor, testified that in the early morning of October 28, 2001, she was at a
billiard hall watching accused-appellant, together with a certain Paeng and Zaldy, play a game, when
she heard gunshots.

Sgt. Anderson, who resided within the vicinity of the shooting incident, recollected that at around
past midnight of October 28, 2001, he was in a videoke bar with a certain Boying, when he heard
two successive automatic gunshots. He went out of the bar and saw Nanette, Danilo’s sister, who he
asked about what happened. Nanette responded "binaril si manong." Sgt. Anderson went home and
called the authorities. He went back to the scene of the shooting with a flashlight to look for empty
shells. Sgt. Anderson also remembered that accused-appellant approached him and asked him
about what happened.

Sgt. Agustin, who likewise resided within the vicinity of the shooting incident, narrated that he was
awakened by a burst of gunfire in the early morning of October 28, 2001, at around 12:45 a.m. He
then heard someone shouting "wag sarge, wag sarge!" Then he heard another burst of gunfire. He
went out of his house and proceeded to Senatorial Road. There he saw blood in front of the window
of the house of Nanette, Danilo’s sister, and a lot of people already milling around. Among the
people he saw were Nanette, accused-appellant, and Sgt. Anderson. Sgt. Agustin acknowledged
that accused-appellant is his first-degree cousin and that he did not personally witness the shooting
incident.

Editha is another ambulant vendor who recalled that at around 2:00 a.m. on October 28, 2001, she
met a certain Boying (purportedly Rommel’s father) on the road, who told her that his son was shot.
Editha admitted, however, that she had no personal knowledge of the shooting incident.

The last witness for the defense was Elizabeth, accused-appellant’s distant relative, and the
neighbor and close friend of Janita, Danilo’s wife. Elizabeth stated under oath before the RTC that
on October 28, 2001, she opened her gate and saw people gathering at Senatorial Road. From
listening to the stories of the bystanders, she learned that someone was shot at around 1:00 a.m. on
October 28, 2001 by two persons wearing bonnets and riding a motorcycle. According to Elizabeth,
Janita had never confided to her any marital problem with Danilo.

The prosecution presented on rebuttal Nanieta Lindawan (Nanieta), who gave the following account
of the events that transpired in the early morning of October 28, 2001:

Testifying on rebuttal, Nanieta Lindawan denied having met, seen or talk[ed] with Adallom, a
townmate of her husband, in the early morning of October 28, 2001. There was never a time after
the killing of [her] brother Danilo that she saw the accused on Senatorial Road. She belied the
testimony of Agustin Adallom that he talked to her in the morning of October 28, 2001. She knows
that he is a soldier stationed in Camp Capinpin and that he comes home only once a month for a
day, either Saturday or Sunday. She is also sure that witness Sgt. Anderson Tuguinay was not able
to talk to her that morning because after the incident, she was alone in the middle of the road crying.

On cross-examination, among others, she stated that the incident happened right in front of her
house. She was at home with her sisters and they were sleeping when she heard successive
gunfire. She peeped out of the window and she saw two persons lying face down, Danilo and
[Rommel]. She was able to recognize her brother because he was facing the window. She went out
of the house minutes after the last gunshot. She called for her siblings. Except for the neighbor of
her Ate [Janita], none of their neighbors came out because they were afraid. Her brother Babelito
was also there and he told her that he was almost hit. Danilo was already brought to the hospital
before the police arrived in unmarked vehicles. Although Sgt. Tuguinay owns a delivery van, they did
not try to borrow it to bring Danilo to the hospital because Tuguinay does not lend his vehicle to
anyone. She denied having borrowed facilities, like chairs and tables, from her best friend Elizabeth,
who owns a school. Elizabeth told Nanieta’s husband that she was afraid to go to the wake because
it was her gun which was used in the shooting. She admitted she saw Elizabeth at the wake once.
She does not remember the last time when Sgt. Agustin Adallom came home from Camp Capinpin.
Her husband is also stationed in Camp Capinpin and if Sgt. Agustin was really there at the time of
the incident, he would have offered to inform her husband about the incident. 22

The documentary exhibits for the prosecution – consisting of Babelito’s sworn statement, in a
question and answer form, executed before PO3 Leo Tabuena on November 21, 2001; sketch and
photographs of the location of the shooting incident; Danilo’s death certificate; the autopsy report on
Danilo’s body; receipts and list of funeral and burial expenses incurred by Danilo’s heirs; and the
ballistics report which stated that the bullet recovered at the scene came from a .30 caliber firearm –
were all admitted by the RTC in its Order dated September 2, 2002.
23 

The defense submitted its own documentary exhibits, specifically, photographs of several bullet
holes at the store where Danilo, Rommel, and Babelito were shot to show the trajectory of the
bullets; sketch of the location of the shooting incident; accused-appellant’s daily time records from
his work for the months of October and November 2001; and Janita’s letter-complaint dated
November 19, 2001 against accused-appellant. All these exhibits were admitted by the RTC in its
Order dated June 23, 2003.
24 

On December 15, 2003, the RTC rendered its Decision giving more credence to the positive
testimonies of prosecution witnesses Babelito and Diorito and finding implausible accused-
appellant’s defenses of denial and alibi. The RTC pronounced accused-appellant guilty beyond
reasonable doubt of the crimes of murder of Danilo in Criminal Case No. Q-01-105875 and
attempted murder of Babelito in Criminal Case No. Q-01-105877; but dismissed the charge against
accused-appellant for the murder of Rommel in Criminal Case No. Q-01-105876 because of
insufficiency of evidence. The dispositive portion of the RTC judgment reads:

WHEREFORE, finding the accused NOEL ADALLOM guilty beyond reasonable doubt of the crime of
murder described and penalized under Art. 249 of the Revised Penal Code, in relation to Article 63
thereof, and there being no other aggravating circumstance attending the commission of the crime,
he is hereby sentenced to suffer imprisonment of reclusion perpetua and to indemnify the heirs of
the victim, Danilo Villareal, as follows:

1. ₱50,000.00 as civil indemnity;

2. ₱50,000.00 as moral damages;

3. ₱57,084.80 as actual damages; and

4. To pay the costs.

With respect to Crim. Case No. Q-01-105817 for the attempted murder of Babelito Villareal after
applying the indeterminate sentence law, the court hereby sentences accused to suffer
imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor.

For insufficiency of evidence, Criminal Case No. Q-01-105876 is hereby dismissed. 25

Accused-appellant appealed the foregoing RTC judgment before the Court of Appeals. Accused-
appellant filed his Brief on January 13, 2006 while plaintiff-appellee, represented by the Office of the
26 

Solicitor General, filed its Brief on May 29, 2006.

27 

In its Decision dated July 31, 2007, the Court of Appeals agreed with the factual findings of the RTC
and ruled thus:
Verily, we reiterate the jurisprudential doctrine that great weight is accorded to the factual findings of
the trial court particularly on the ascertainment of the credibility of witnesses; this can only be
discarded or disturbed when it appears in the record that the trial court overlooked, ignored or
disregarded some fact or circumstance of weight or significance which if considered would have
altered the result. In the course of our review, the records disclose, that the trial court has
considered all the evidences of both parties and, thus, has ruled correctly. Trial courts have the
opportunity to see witnesses as they testify in court, an opportunity not readily available to appellate
courts.

Thus, we find no reason to depart from the above ruling. We have examined the records and we
confirm the trial court’s findings that the testimonies of the witnesses are more trustworthy than the
testimonies of the defense witnesses, particularly the appellant’s.

With the application of prevailing laws and jurisprudence to the evidence presented, We cannot
conclude otherwise but rule for the guilt of the accused-appellant beyond reasonable doubt.

WHEREFORE, in view of the foregoing, the decision of the trial court is AFFIRMED in toto. 28

Hence, accused-appellant comes before us on appeal.

In our Resolution dated July 23, 2008, we required the parties to file their respective supplemental
29 

briefs. Both plaintiff-appellee and accused-appellant manifested, however, that they had already
exhausted their arguments before the Court of Appeals and would no longer file any supplemental
brief.
30

Accused-appellant assails his conviction for murder and attempted murder on these grounds:

A. The trial court erred in finding the testimony of Babelito Villareal and Diorito Coronas, Jr.
credible. 31

1.) The trial court misapplied the doctrine that the relationship of the witness to the victim
does not make the former a biased witness, but rather makes his testimony more credible. 32

2.) The trial court’s findings that Babelito and [Diorito] narrated as they saw the incident in a
clear, simple and direct manner; and, that their testimonies jive on material points are
seriously belied by the evidence extant on the record. 33

3.) The trial court’s finding that Babelito and [Diorito] could not have been mistaken with the
identity of Noel Adallom because he had been a long time resident of the place is highly
speculative. 34

4.) The trial court’s finding that the place where the incident occurred was lighted. 35

5.) The trial court’s finding that no motive was shown for the two witnesses to prevaricate
and concoct the story to implicate Adallom with the killing is uncalled for.36

B. The trial court erred in relying on the weakness of the defense rather on the strength of the
prosecution’s evidence. 37

C. The trial court erred in not finding that the evidence on record raise a reasonable doubt that the
accused was the assailant. 38

Plaintiff-appellee counter-argues that:

The testimony of Babelito Villareal, an eye witness and survivor of the assault, established
with utmost certainty the identity of appellant as the assailant and gunman.

II

The prosecution established the guilt of appellant beyond reasonable doubt.

III

Appellant’s defense of denial is weak and without factual basis. 39

We sustain the conviction of accused-appellant for both crimes.

Jurisprudence dictates that "when the credibility of a witness is in issue, the findings of fact of the
trial court, its calibration of the testimonies of the witnesses and its assessment of the probative
weight thereof, as well as its conclusions anchored on said findings are accorded high respect if not
conclusive effect. This is more true if such findings were affirmed by the appellate court, since it is
settled that when the trial court’s findings have been affirmed by the appellate court, said findings
are generally binding upon this Court." 40

We find no cogent reason to deviate from the cited case doctrine.

As aptly appreciated by the RTC, prosecution witnesses Babelito and Diorito both positively
identified accused-appellant as the person who treacherously shot Danilo and Babelito, and
ultimately succeeded in killing Danilo. Said witnesses gave a forthright and consistent narration of
what they had actually witnessed the early morning of October 28, 2001 at Senatorial Road.

Babelito had to relive before the RTC the traumatic experience of seeing his brother Danilo killed
and barely escaping with his own life:

Q And can you tell us where were the three of you during that time?

A I was in front of my house which is also in front of the store of my sister Nanieta.

xxxx

Q And what were the three of you doing at that time?

A We were seated in front of the store of my sister drinking beer, sir.

xxxx

Q And you said that you ran out of beer, what happened after you ran out of beer?

A We stopped drinking and then a tricycle arrived with its lights out and its engine turned off.
It was still moving because the road was on a downward slope, sir.

xxxx

Q At the time that you noticed the said tricycle, can you tell us what time was that?

A 12:45 in the morning of October 28, 2001, sir.

Q When you noticed the said tricycle moving downwards because of the sloping road, what
happened next?

A Noel Adallom alighted from the tricycle. He got out of the sidecar.

Q By the way, were you able to count how many persons were inside the tricycle?

A There were three of them: the tricycle driver, Noel Adallom and John Win Lindawan.

Q You said Noel Adallom was inside the tricycle, at the time, where was he seated in the
tricycle?

A Inside the tricycle, sir.

Q Now, what happened next when Noel Adallom alighted?

A He fired his gun, sir.

Q From the place wherein Noel Adallom alighted immediately thereafter fired his gun, how
far was your group from him?

A About 4 meters, sir.

Q Now, you said Mr. Adallom alighted and fired his gun, can you remember what kind of
firearm he used at the time?
A Carbine.

Q Was it a long or short firearm?

A Long firearm, sir.

Q And when he alighted and fired his gun, what happened to your group, if any?

A There were successive shots and I just saw gunbursts and he was saying, "Ano? Ano?"
while he was firing successively at my brother and Rommel Hina who was already moaning.

Q Can you tell us your relative positions at the time Mr. Adallom fired his gun?

A I was at the back by the wall fronting the road and my brother’s back was fronting the
street facing me.

Q How about Mr. Hina, where was he positioned?

A On my right side, sir.

Q Can you tell us from what direction the said tricycle came from?

A From my left side, sir.

Q So, you are telling us that the tricycle which had no lights and with engines not running just
came by the road and 4 meters from you, Mr. Adallom alighted and fired his gun?

A Yes, sir.

Q And what was the relative position of your brother when Noel Adallom fired his gun?

A While the tricycle was coming down the road, my brother turned his head and tried to run
but he was already hit all at the back by the volley of fire.

Q What about Rommel Hina, what happened to him?

A He was also hit.

Q How about you?

A When I saw gunfire, I just closed my eyes and leaned against the wall and turned my head
to the right and slowly, I moved my leg downwards and just waited for what would happen
next.

Q And can you tell us what happened to you after you just left your fate to God?

A When my brother and Rommel fell, the firing stopped. I turned my head and I noticed that
Noel Adallom looked surprised.

Q When Noel Adallom looked surprised upon seeing you still alive, what happened next?

A He again fired a succession of shots and then I heard "tak-tak."

Q And would you know what that sound was that you heard?

A I surmised that the gun must have jammed, sir.

Q What did you do, if any, when you realized that the gun must have jammed?

A I thought of standing up and running and I again heard a burst of gunfire, "rat-tat-tat."

Q What happened when you heard another round of gunfire?

A I sought cover behind a vehicle and I ran towards the corner to escape. (Emphases
41 

supplied.)
Diorito corroborated Babelito’s testimony when he recounted before the RTC the following:

Q Now, you said that you were at the said videoke bar at around 11:30 to 12:00 o’clock;
while you were there at the said videoke, what happened if any?

A When I heard a gunfire, I immediately proceeded near the vehicle to look on what is
happening.

Q Now, you said that you heard a gunfire; when you heard that gunfire, who were with you
during that time?

A I was alone.

Q And you said that after hearing a gunfire you went out near a vehicle that was parked; can
you tell us where is that vehicle that was parked where you went for cover?

A The vehicle is right in front of the videoke bar where we usually hang out and it so
happened that the vehicle is also owned by the owner of that videoke bar.

xxxx

Q You said you went to that vehicle which was parked, what else did you do after going near
the vehicle?

A I was looking who shot who.

Q And what did you see if any?

A I saw three persons who fell (bumulagta noong pinagbabaril).

Q Now, you said that you saw three men who just fell when shots were fired upon, [is] any of
those three men present in today’s courtroom whom you said that fell down, can you identify
them?

A The two persons are already dead but the other, I got surprised when he immediately ran.

Q That person that stood up, can you identify him?

A Yes, sir.

Q Can you kindly tell us his name if you know it?

A Samboy, sir.

Q Is he present in today’s courtroom? Can you kindly stand up and point to us that person?
Kindly tap the shoulder of that person.

A (Witness tapping the shoulder of a man who when asked answered that his name is
Babelito Villareal.)

Q Aside from seeing those three men whom you said fell down, what else did you see if any?

A I saw one person firing shots and the other one is facing in front of the house of Samboy
and the other person was manning the tricycle.

Q So, all in all, there were three persons that you saw other than those three other persons
whom you said fell down, is that correct?

A Yes, sir.

Q You said that you saw one of those three persons firing a gun, can you kindly describe to
us that gun that was used by the said person?

A The size of the gun that he was using was like this (witness demonstrating), less than two
feet. But I don’t know what kind.
 Q That person whom you saw carrying a firearm and was shooting that men, if that person is
present in today’s courtroom, can you identify him?

A Yes, sir.

Q Can you kindly step down again and tap the shoulder of that person whom you saw?

A (Witness tapping the shoulder of a person who gave his name as Noel Adallom)

Q Now, when this shooting incident took place, can you kindly tell us how far were this group
of men whom you said were shot from the place where you were hiding or covering near the
vehicle?

A Same distance more or less eight meters.

Q How about the gunman who was shooting these three men, how far were you from him?

A It is farther by half meter.

Q You said that you saw this incident that took place, can you kindly tell us what was the
lighting condition during that time that this incident happened?

A The place where the incident happened, it was well-lighted, however, from where I stand,
the place was not lighted. The light came only from the videoke bar.

xxxx

Q You said that after you saw Mr. Adallom shot these three men, what else did you see if
any?

A When he started firing at these three men, right after, I saw one person immediately stood
up and ran away and right after that, Noel Adallom kept on firing at the guy who was running.

Q When you said that guy stood up you were referring to Babelito Villareal, that one that you
just pointed prior to the accused?

A Yes, sir.

Q And what happened next after Mr. Adallom was not able to hit Mr. Babelito Villareal?

A I noticed a yellow tricycle without plate number which immediately started its engine and
moved downward towards my direction and the other two guys went on the other direction
going upward.

Q How about you, what did you do next after seeing that incident?

A I immediately approached the two guys who were lying down.

Q And what did you see if any after that?

A I still heard one guy in the person of Rommel who was still moaning.

Q After hearing Rommel still moaning, what did you do, if any?

A I was a bit apprehensive because maybe somebody will see me and my family will be
involved so I immediately ran away from the scene.

Q Where did you go after running away?

A I immediately went to my house. (Emphases supplied.)

42 

Accused-appellant’s attacks on the credibility of Babelito and Diorito are unconvincing, each having
already been soundly rejected by the Court of Appeals, thus:

The accused-appellant is not successful in proving the incredibility and improbability of the
testimonies of the [prosecution’s] two eye witnesses, hence, his arguments on the slight difference in
the location and nature of gunshot wounds as opposed to the position of the assailant as testified by
the witness are not sufficient to overturn the eyewitness accounts of Diorito and Babelito. The
positive identification of the witnesses is more than enough to prove the accused-appellant’s guilt
beyond reasonable doubt.

Accused-appellant argues that the delay in charging him raises serious doubts on Babelito’s
testimony. Well settled is the rule that "Delay in making criminal accusations will not necessarily
impair the credibility of a witness if such delay is satisfactorily explained." It has been established
that the delay in filing a criminal complaint is attributed to his confusion and desire to consult his
sister-in-law who is the wife of deceased Danilo. He also testified that he did not file a complaint
immediately, because he did not want to disturb the wake of his brother. Such explanation is
acceptable. True enough, he filed a complaint with the barangay officials and asked for their
assistance in bringing accused-appellant to Station 6 after the funeral of his brother. 1âwphi1

Accused-appellant tried to attack the reliability of Babelito’s testimony by insisting that the story told
by Babelito does not jive with the story told by the physical evidence consisting of the wounds
sustained by the body of Danilo. We are not convinced. Accused-appellant is capitalizing on the fact
that the location and nature of the gunshot wounds sustained by deceased Danilo is anteriorwards,
lateralwards and going to the right. Simply stated, the direction of the wounds are slightly going
upwards to the right, which according to the accused-appellant is impossible to be sustained by the
deceased, because (as told by Babelito) he is standing up when he shot deceased Danilo, who is
seated on the street. Such argument lacks merit. As explained by Dr. Rodrigo in his testimony, the
body of Danilo could have moved and slumped forward when he was being hit by bullets in rapid
succession and the position of his body has changed. When the bullets hit the body of the deceased,
the body was already on the ground face down and the natural trajectory of bullets is upward, toward
the head of the deceased. It is established that accused-appellant Noel was shooting while he was
standing and the deceased was already on the ground. So when you try to examine the body and let
it stand up, it would naturally create an impression that the bullets’ direction is upward. The
explanation is so simple, the body received the bullets while it is slumped, with face forward on the
ground, and accused-appellant Noel was shooting while he was standing up. Such explanation is
corroborated by Babelito’s account that Danilo tried to turn his shoulders to face his left side, before
he fell furthermore, such testimony is also corroborated by the testimony of Nanette which claimed
that Danilo fell at the spot marked as Exhibit 2-C as told by Babelito. (Emphasis supplied and
43 

citations omitted.)

In contrast, accused-appellant proffered the defenses of denial and alibi, which are the weakest of
defenses in criminal cases. The well-established rule is that denial and alibi are self-serving negative
evidence; they cannot prevail over the spontaneous, positive, and credible testimonies of the
prosecution witnesses who pointed to and identified the accused-appellant as the malefactor.
"Indeed, alibi is easy to concoct and difficult to disprove." 44

Although accused-appellant presented other witnesses to supposedly corroborate his alibi, we could
not ascribe much probative weight to said witnesses’ testimonies. None of said witnesses actually
saw the shooting, most only heard the gunshots and arrived at the scene after the shooting took
place and, thus, had no personal knowledge of the said incident. Except for Aida, no other witness
for the defense was physically with accused-appellant at the exact time of the shooting. And even
Aida’s testimony is unreliable given the observation of the RTC that it is in conflict with that of
accused-appellant. Accused-appellant claimed that he first went to the billiard hall owned by Ilustre
where he played with a certain Zaldy and then he transferred to Retota’s billiard hall where he was
playing with Danilo and Dominador Baldaba when he heard the gunshots. Yet, Aida attested that
she was watching accused-appellant playing billiards with a certain Zaldy when she heard the
gunshots.

In sum, the prosecution has proven beyond reasonable doubt the guilt of accused-appellant for the
murder of Danilo in Criminal Case No. Q-01-105875 and attempted murder of Babelito in Criminal
Case No. Q-01-105877.

The penalty prescribed by law for the crime of murder is reclusion perpetua to death. With the 45 

repeal of the death penalty law, the only penalty prescribed by law for the crime of murder is
reclusion perpetua. The Indeterminate Sentence Law does not apply, inter alia, to persons convicted
of offenses punished with death penalty or life imprisonment, including reclusion perpetua. Hence,
accused-appellant has been properly sentenced to suffer the penalty of reclusion perpetua for the
murder of Danilo in Criminal Case No. Q-01-105875.

However, we find it necessary to modify the award of damages to Danilo’s heirs in Criminal Case
No. Q-01-105875. Consistent with prevailing case law, accused-appellant must pay Danilo’s heirs
46 

the amounts of ₱75,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as
exemplary damages, in addition to the sum of ₱57,084.80 as actual damages.

For the crime of attempted murder, the penalty shall be prision mayor, since Article 51 of the
Revised Penal Code states that a penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to commit a felony. Under
the Indeterminate Sentence Law, the maximum of the sentence shall be that which could be properly
imposed in view of the attending circumstances, and the minimum shall be within the range of the
penalty next lower to that prescribed by the Revised Penal Code. Absent any mitigating or
aggravating circumstance in this case, the maximum of the sentence should be within the range of
prision mayor in its medium term, which has a duration of eight (8) years and one (1) day to ten (10)
years; and that the minimum should be within the range of prision correccional, which has a duration
of six (6) months and one (1) day to six (6) years. Hence, we sentence accused-appellant to suffer
imprisonment from six (6) years of prision correccional, as minimum, to eight (8) years and one (1)
day of prision mayor, as maximum, for the attempted murder of Babelito in Criminal Case No. Q-01-
105877.

We further order accused-appellant to pay Babelito the amounts of ₱25,000.00 as civil indemnity,
₱10,000.00 as moral damages, and ₱25,000.00 as exemplary damages in Criminal Case No. Q-01-
105877.

WHEREFORE, the instant appeal of accused-appellant Noel T. Adallom is DENIED for lack of merit.
The Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00365, which
affirmed the Decision dated December 15, 2003 of the Regional Trial Court, Branch 76, Quezon
City, in Criminal Case Nos. Q-01-105875 and Q-01-105877, finding Noel T. Adallom guilty beyond
reasonable doubt of the crimes of murder and attempted murder, respectively, is hereby AFFIRMED
with the following MODIFICATIONS as to the penalties and awards imposed:

1) For the murder of Danilo Villareal in Criminal Case No. Q-01-105875, Noel T. Adallom is
SENTENCED to suffer the penalty of reclusion perpetua and ORDERED to pay the heirs of
Danilo Villareal the amounts of ₱75,000.00 as civil indemnity, ₱50,000.00 as moral
damages, ₱30,000.00 as exemplary damages, and ₱57,084.80 as actual damages; and

2) For the attempted murder of Babelito Villareal in Criminal Case No. Q-01-105877, Noel T.
Adallom is SENTENCED to suffer imprisonment from six (6) years of prision correccional, as
minimum, to eight (8) years and one (1) day of prision mayor, as maximum, and ORDERED
to pay Babelito Villareal the amounts of ₱25,000.00 as civil indemnity, ₱10,000.00 as moral
damages, and ₱25,000.00 as exemplary damages.

SO ORDERED.

G.R. No. 185282               September 24, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BENJAMIN BRAVO y ESTABILLO, Accused-Appellant.

DECISION

PEREZ, J.:

Before us is an appeal from the Decision dated 27 May 2008 of the Court of Appeals, which affirmed
1 

the judgment of the Regional Trial Court (RTC) of Bauang, La Union, Branch 33, finding appellant
2 

Benjamin Bravo y Estabillo guilty of arson.

On 17 August 1989, an Information was filed against appellant charging him with Arson with Double
Murder, committed as follows:

That on or about 9:30 P.M. of August 10, 1989, at Brgy. Magungunay, Municipality of Naguilian,
Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above
named accused motivated by anger, hatred and other evil motive and with intent to destruct (sic) life
and property, did then and there wilfully, unlawfully and feloniously set on fire the house of MAURO
CAMACHO, which causes (sic) said house to be razed to the ground and during the occasion
thereof, one Mrs. Shirley Camacho and her four month old son Jerickson Camacho was trapped
during the fire which causes (sic) their instantaneous death, and also the house of Dominador
Camacho was also gutted down by the fire which comes (sic) from the house of Mauro Camacho,
with a total losses of damages (sic) amounted to FOUR HUNDRED THOUSAND PESOS (₱
400,000.00) Philippine Currency, to the damage and prejudice of the offended parties. 3

Mauro Camacho (Mauro) was a resident of Barangay Magungunay, Naguilian, La Union. He lived in
a two-storey house with his three (3) children: Merlita, Mauro, Jr. and Fidel; daughter-in-law Shirley,
and grandson Jerickson. Mauro’s bedroom occupied the southwest portion of the second floor;
Merlita’s room was on the north beside the stairs; Shirley and Jerickson on the northwest corner,
and Mauro, Jr. slept on the sala, directly opposite Merlita’s room. The ground floor of the house
4 

contained a pile of tobaccos, lumber, container of palay, and water pump. 5

On 10 August 1989 at around 9:30 p.m., Mauro, now deceased, was lying in bed inside his bedroom
on the second floor of the house when he heard gunshots. He then heard appellant calling for him to
6 

come down. When Mauro did not heed appellant’s call, the latter went up the stairs, pointed a gun at
7 

Mauro, and demanded that he bring out the akusan, apparently an object used in witchcraft.
Appellant was accusing Mauro of putting a curse on the latter’s father, who at that instance, was
sick. Mauro remained tight lipped prompting appellant to turn around. On his way down the stairs,
8 

appellant supposedly uttered: "I will burn you all. All of you will die." About fifteen (15) seconds
thereafter, Mauro saw a big fire on the second floor coming from the northwest, in particular, the
room of Shirley and Jerickson. While the fire was spreading, Mauro, together with his children
Merlita and Mauro, Jr. were able to jump out of the window in the south. 9

Fidel Camacho (Fidel), the husband of Merlita, was attending a wake of his brother-in-law at the
adjacent barrio located one kilometer away from Barangay Magungunay, Naguilian, La Union when
he heard gunshots at around 8:30 p.m. Fidel immediately ran home and saw the house burning. He
was met by his father, Mauro, who informed him that his wife and son perished in the fire. 10

Alejandro Marzan (Alejandro), Mauro’s brother, was also attending the same wake when he heard
gunshots. When he went out of the house, he already saw the fire razing in the north. While running
towards the direction of the fire, Alejandro saw appellant who was holding a gun and running
towards him. Instead of heading towards appellant, Alejandro changed his path and passed through
a ricefield. Alejandro reasoned that he intentionally avoided appellant because not only was the
latter carrying a gun, but that he had knowledge that appellant was accusing Mauro and his family of
practicing witchcraft. When Alejandro reached the house of Mauro, he saw it was already razed to
11 

the ground while the house of Dominador Camacho was still burning. He asked Mauro about the fire
and the latter pointed to appellant as the one who came to the house pointing a gun at him and
threatening to burn them. 12

Fidel presented a list of the burnt personal belongings amounting to ₱ 27,000.00; a receipt covering
13 

the burial expenses for his wife and child amounting to ₱ 10,800.00; a tax declaration of the burnt
14 

house; and photographs of the house razed by the fire and the charred remains.
15  16

In his defense, appellant denied burning the house and interposed alibi. He narrated that on 10
August 1989, he was at Barangay Magleva, San Fabian to accompany his father for treatment by a
faith healer. He spent the night with his father, mother, and cousin at the convent. He arrived at
Naguilian only on the following day at around 12:00 p.m. The police came to appellant’s house at
1:00 p.m. to arrest him. On the way to the municipal hall, they passed by the burnt house and he
helped in carrying the remains of the burnt victims. 17

Appellant’s father, Agripino, and cousin Carolino Estabillo, corroborated his statement. Barangay
18 

Captain Wilfredo Gundran testified as to appellant’s good moral character. He knew appellant since
birth and attested that appellant is a law abiding citizen, of good moral character and a reliable
person in the barangay. Jimmy Sabado, the school principal at Magungunay Elementary School
19 

stated that appellant was the President of the school’s Parents Teachers Association and that he
has not observed any wrongful action on the part of appellant in the eight (8) years that he knew
him.20

After trial, appellant was found guilty by the trial court of arson in a Decision dated 16 July 2002, the
dispositive portion of which reads:

WHEREFORE, the prosecution having established the guilt of the accused with moral certainty for
the crime of ARSON punishable under Section 5, P.D. No. 1613, the Court hereby sentences the
accused BENJAMIN BRAVO Y ESTABILLO, to suffer the penalty of Reclusion Perpetua; to
indemnify the offended party Fidel Camacho the following amounts:

a) Php20,000.00 as nominal damages;

b) Php100,000.00 as death indemnity;

c) Php100,000.00 as moral damages.

To Mauro Camacho, the amount of Php50,000.00 as nominal damages; to Dominador Camacho,

the amount of Php30,000.00 likewise as nominal damages, and to pay the costs.

In the service of his sentence, the accused shall be credited with his preventive imprisonment under
the terms and conditions prescribed under Art. 29 of the Revised Penal Code, as amended. 21
The trial court relied on circumstantial evidence to convict appellant of arson.

The appellate court affirmed the factual findings of the trial court and agreed that the circumstantial
evidence proved beyond reasonable doubt that appellant had set the houses on fire. In addition, the
appellate court awarded exemplary damages of ₱ 50,000.00 to Fidel for the death of his wife and
child. The dispositive portion of the Decision reads:

WHEREFORE, the DECISION DATED JULY 16, 2002 is AFFIRMED subject to the MODIFICATION
that in addition to the monetary damages decreed the accused is ordered to pay exemplary
damages of ₱ 50,000.00 to Fidel Camacho, the surviving heir of Shirley Camacho and Jerickson
Camacho. 22

On 19 January 2009, this Court required the parties to simultaneously submit their respective
supplemental briefs. Appellant and the Office of the Solicitor General (OSG) both filed their
manifestations stating that they would no longer file any supplemental briefs and instead adopt their
respective briefs before us.23

Appellant for his defense capitalizes on alibi as supposedly supported by numerous witnesses. He
dismisses the prosecution’s evidence as merely circumstantial and not enough to convict him of the
crime imputed. Citing People v. Ochate, appellant parroted the guidelines in the appreciation of
24 

circumstantial evidence without however offering any explanation as to how these guidelines were
disregarded.

On the other hand, the OSG enumerated the chain of events which established the elements of the
crime of arson and lead to the identification of appellant as the arsonist. The OSG also assails
appellant’s alibi as weak and corroborated by partial witnesses.

In the prosecution for arson, proof of the crime charged is complete where the evidence establishes:
(1) the corpus delicti, that is, a fire because of criminal agency; and (2) the identity of the defendant
as the one responsible for the crime. In arson, the corpus delicti rule is satisfied by proof of the bare
fact of the fire and of it having been intentionally caused. Even the uncorroborated testimony of a
single eyewitness, if credible, is enough to prove the corpus delicti and to warrant conviction. 25

The occurrence of the fire was established by the burnt house, the charred bodies of the two fire
26 

victims and testimonies of prosecution witnesses. As to the identity of the arsonist, no direct
27 

evidence was presented. However, direct evidence is not the sole means of establishing guilt
beyond reasonable doubt. Section 4 of Rule 133 of the Rules of Court provides:

Section 4. Circumstantial evidence, when sufficient.─ Circumstantial evidence is sufficient for

conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

The reason for this rule was highlighted in People v. Gallarde and reiterated in People v. Gil, thus:
28  29 

There may, however, be instances where, although a witness may not have actually seen the very
act of commission of a crime, he may still be able to positively identify a suspect or accused as the
perpetrator of a crime as for instance when the latter is the person or one of the persons last seen
with the victim immediately before and right after the commission of the crime. This is the second
type of positive identification, which forms part of circumstantial evidence, which, when taken
together with other pieces of evidence constituting an unbroken chain, leads to the only fair and
reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all
others. If the actual eyewitness are the only ones allowed to possibly positively identify a suspect or
accused to the exclusion of others, then nobody can ever be convicted unless there is an
eyewitness, because it is basic and elementary that there can be no conviction until and unless an
accused is positively identified. Such a proposition is absolutely absurd, because it is settled that
direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw
its conclusion and finding of guilt. If resort to circumstantial evidence would not be allowed to prove
identity of the accused on the absence of direct evidence, then felons would go free and the
community would be denied proper protection.

In order to justify a conviction upon circumstantial evidence, the combination of circumstances must
be such as to leave no reasonable doubt in the mind as to the criminal responsibility of the
accused. 30
We fully agree with the Court of Appeals that the following circumstances form an unbroken chain
that point to no other than that appellant is the arsonist, to wit:

First: Prior to the burning incident, the Bravo family, including the accused, had denounced Mauro
Camacho and his wife of engaging in witchcraft. The Bravos blamed the witchcraft to be the cause of
the illness of the father of the accused.

Thus:

Q: Namely, who are these members of the family of Bravos who are blaming Mauro Camacho and
his wife as witches?

xxxx

A: That one sir (the person pointed to by the witness standing up and when asked by the Interpreter,
said person gave her name as Lourdes Bravo); that one also, sir (the witness pointing to the man
who also stood up and when asked by the Interpreter, he gave his name as Agrifino [sic] Bravo); that
one, sir, (the witness pointing to the accused Benjamin Bravo who also stood up); and that one sir
(the witness pointing to another woman who stood up and when asked by the Interpreter, she gave
her name as Leticia Bravo).

Second: A week after the rumors had spread that Mauro Camacho, Sr. and his wife had subjected
the father of the accused to their witchcraft, their house got burned downed.

Thus:

Q: How many days before August 10, 1989 that you were informed that you were - that the father of
Ben Bravo was blaming you as the one who employed witchcraft on him?

A: Less than one (1) week, sir.

Third: The accused was present at the scene of the crime at about 9:30 pm on August 10, 1989,
daring Mauro Camacho, Sr. to go down from his house. The accused himself even went up the
house of the Camachos and pointed his long firearm at Mauro, Sr.

Thus:

Q: On August 10, 1989 at around 9:30 O’clock [sic] in the evening, where were you?

A: I was in our house, sir.

xxxx

Q: On that particular date, time and place, what were you doing in your house at Barangay
Magungunay, Naguilian, La Union?

A: I was already lying down about to sleep, sir.

Q: And while you were lying down what happened if any?

A: There was a shot that we heard, sir.

xxxx

Q: Now, after hearing those gun reports north of your house, what happened if any?

A: I was asked to go down, sir.

Q: Who was telling you to go down?

A: It was Ben, sir (witness pointing to the accused) I heard the voice of Ben asking me to go down.

Q: Ben?

A: Bravo, sir.

Q: Who is this Ben Bravo? The accused in this case?

A: Yes, sir.

Q: What was Ben Bravo uttering while he was on the ground?

A: Come down, sir.

Q: How many times did he utter those words, come down?

A: I did not count it anymore because I was then afraid, sir.

Q: You claimed that you know the voice of Ben Bravo the accused here. Why? How many years
have you known him before August 10, 1989?

A: When he was still a small boy I have known him already because their place is not far from ours,
sir.

Q: How many occasions did you talk to him entirely your life (sic)?

A: It could not be counted anymore, sir.

xxxx

Q: Now, what happened after you heard the accused uttering those words?

A: When I did not go down he went upstairs, sir.

xxxx

Q: Where did he proceed?

A: He proceeded to the place where I was pointing a gun at me (sic), sir.

Q: Where did he enter?

A: He went up thru stairs, sir.

xxxx

Q: You said he was pointing a gun at you. How long was the gun he was pointing at you?

A: Like this, sir. (witness demonstrating by spreading his hands indicating a length of 36 inches)

Q: What happened when he was near you?

A: He said, you bring out your akusan, sir.

Q: By the way, Mr. witness, will you tell us what is this akusan referred to if you know?

A: Something that is used in witchcraft, sir.

Q: And what did you answer if any, if you answer?

A: I did not say anything because I do not know what he was telling, sir?

Q: How many times did he utter those words?

A: I did not count anymore how many times did he utter those words asking me to bring out the
akusan, sir.

Q: How far were you that time?

A: Around two (2) meters, sir.

xxxx

Q: How would you able to recognize the accused Ben Bravo at that time?
A: I was looking at him, sir.

Q: What else aside from that?

A: I could clearly see him because it was bright in our house because the light is on and I was
sidewise facing him, sir.

Q: You mean, at that time your face was facing him?

A: He was infront of me, sir.

xxxx

Q: When he was uttering those words telling you to bring out that akusan which is something used
for witchcraft, what did you do?

A: I did not say anything, sir.

Q: Then what happened when you remain silent?

A: When I was not moving and say nothing, he turned around and went down, sir.

Q: How many seconds did Ben Bravo stay in the place where you were lying down at that time?

A: More than one (1) minute then he turned, sir.

xxxx

Fourth: The accused was heard uttering while going down the stairs of the house the Camachos:
Matay kayo aminen, po-urak daytoy balay yo (all of you will die. I will burn your house). Fifteen
seconds later, Mauro Camacho, Sr. heard gunshots and then saw a big fire in the room occupied by
Shirley Camacho and her son.

Thus:

Q: And what happened when Ben Bravo proceeded to the door of your house?

A: When he went down already, he uttered: "I will burn you all. All of you will die," sir.

Q: What happened afterwards?

A: After fifteen (15) seconds, there was a big fire going inside, sir.

Q: Where was this fire coming from?

A: North, sir, where Shirley and Jerickson’s room.

Q: By the way, will you tell us what kind of flooring does the room of Shirley and Jerickson
constructed of?

A: It is made of wood but some of it I changed it with bamboo because they are already old, sir.

xxxx

Q: Was the fire inside or outside the room of Shirley and Jerickson?

A: The fire is also in the sala and in the room of Shirley, sir.

xxxx

Q: How about Shirley and Jerickson?

A: I did not hear about Shirley and Jerickson because the fire was already big. I did not hear of their
move but the fire is already big, sir.

Q: Mr. witness, what were under your house which is the first floor at that time?
A: Under the room of Shirley and Jerickson are pile of tabaccos, sir.

Q: How about under the sala?

A: Lumber to be used for my children, water pump and "garong" container for palay, sir.

xxxx

Q: Then Ben Bravo descended from the stairs, is it not?

A: When he was going down he uttered that he is going to burn us all, sir.

Q: And then after he has said that, immediately your house went on fire, is it not?

A: After seconds fire broke up, sir.

Q: How many seconds?

A: Fifteen (15) seconds, sir.

Q: Mr. witness when Ben Bravo descended there was nothing else that you heard except his
statement, "I will burn your house," is it not?

A: Then I heard successive gun reports, sir.

Q: How many gun reports?

A: I could not count, however, there were about 6 to 7 cartridges recovered by the police, sir.

xxxx

And fifth. Barangay councilman Alejandro Marzan, while at a wake in Barangay Ambaracao Sur,
Naguilian, La Union at about 9:30 pm of August 10, 1989, heard gunshots that prompted him to go
outside. He then saw a fire to the north about a kilometer away from where he was.

He rushed towards the place of the fire. Midway, he encountered Benjamin Bravo running from the
opposite direction and carrying a long firearm.

Thus:

Q: About 9:30 o’clock in the evening of August 10, 1989 where were you Mr. witness?

A: I was at the wake sir.

Q: Where was that wake?

A: In the house of Pedring Obena, sir.

Q: In what barangay is that house of Pedring Obena situated, Mr. witness?

A: In Barangay Ambaracao Sur, Naguilian, La Union, sir.

Q: And while you were there in the house of Pedring Obena attending a wake, what happened if any
Mr. witness?

A: While we were in the wake, sir, I already heard a gun report and when we went out, I already saw
the fire.

Q: And where is that fire in relation to the place where you were then?

A: I saw the fire in the north, sir.

Q: How far is it in relation to the place where you were attending that wake?

A: Maybe from here up to the second bridge on the south, of the municipal building, your honor,
because it is going upward.
INTERPRETER: The witness indicating a distance of about one (1) kilometer.

xxxx

Q: And when you observed that the fire was a little bit northeast of the fire, Mr. witness, what did you
do?

A: I ran towards the place, sir.

Q: And while you were proceeding to that particular place where there was a fire, what happened on
your way?

A: I met Benjamin Bravo sir (the witness pointing to the accused whom he pointed to a while ago).

Q: How far from the place where you came from to the place where you met the accused Benjamin
Bravo, Mr. Witness?

A: Maybe from here up to the northern end of the northern bridge, sir (the witness pointing
somewhere to the south of the municipal building).

INTERPRETER: The witness indicating a distance of six hundred (600) to six hundred fifty (650)
meters, that is from the courtroom to the northern end of the northern bridge or first bridge from the
municipal building.

xxxx

Q: What did you observe on Benjamin Bravo when you met him Mr. witness?

A: He was running also, sir.

Q: What else aside from the fact that he was running did you observe on Benjamin Bravo, Mr.
witness?

A: I observed him to be carrying a gun proceeding towards the north, sir.

Q: And anyway, what direction were you proceeding at that time, Mr. witness?

A: I was proceeding towards the south, sir, proceeding to the place where the fire was.

xxxx

Q: In what kind of path were you running at that time Mr. witness proceeding to the place of the fire?

A: An earthen dike, sir.

Q: It was nighttime and how come that you were able to recognize Benjamin Bravo as the one you
met holding a gun at that time?

A: Because of the brightness of the moon, sir, there was moonlight at that time.

Q: When you passed at each other how far were you?

A: I could have met with him and we could have bumped with each other on the way, sir, however, I
went to the field – to the ricefield and so we had a distance of one (1) arm’s length away.

Q: So originally you were using the earthen dike while running towards the place?

A: Yes, sir.

Q: And when you met him he was also using the earthen dike?

A: Yes, sir.

Q: And so that you will not collide or bump with each other you went down on the ricefield about that
length, is that correct Mr. witness?

A: Yes, sir.
xxxx

Q: Why did you go down the ricefield, Mr. witness?

A: Because he was running fast sir and he was holding a gun.

Q: How long was that gun he was holding then?

A: Like this, sir (the witness demonstrating).

INTERPRETER: The witness indicating a length of one (1) meter and seventeen (17) centimetres. 31

Alibi is inherently weak and unreliable in the face of positive and credible testimonies of prosecution
witnesses. It becomes less plausible, especially when it is corroborated by relatives and friends who
may not be impartial witnesses. 32

Physical impossibility is essential in the defense of alibi.  Physical impossibility refers to distance and
1ªvvph!1

the facility of access between the situs criminis and the location of the accused when the crime was
committed. He must demonstrate that he was so far away and could not have been physically
present at the scene of the crime and its immediate vicinity when the crime was committed. 33

The Court of Appeals clearly stated in its Decision that appellant failed to prove the physical
impossibility of his presence at the crime scene which negated his alibi, thus:

Quite noticeable, too, is that the evidence on the alibi did not demonstrate the physical impossibility
for the accused to be at the scene of the crime when the crime was committed at 9:30 pm of August
10, 1989. For, even assuming that the accused had gone to San Fabian earlier that day of the crime,
his being in San Fabian did not preclude his going back to Naguilian, La Union after the treatment of
the father had been completed by 5:00 pm in order for him to be in the place where the crime was
committed at the time of the commission of the crime. In this regard, the RTC took judicial notice that
it would take only about 2 hours more or less to negotiate the distance from Naguilian, La Union to
San Fabian, Pangasinan. For alibi to prosper, it is not enough that the accused was somewhere else
when the crime was committed, but it must likewise be demonstrated that he was so far away that
he could not have been physically present at the place of the crime or its immediate vicinity at the
time of its commission. That showing was not make by the accused. 34

Under Section 5 of Presidential Decree No. 1613, the penalty of reclusion perpetua to death is
imposed when death results. In the light of the passage of Republic Act No. 9346 prohibiting the
imposition of the death penalty, the penalty should be reclusion perpetua. 35

We likewise affirm the award of damages.

WHEREFORE, the appealed decision finding appellant BENJAMIN BRAVO y ESTABILLO guilty
beyond reasonable doubt of the crime of arson and sentencing him to reclusion perpetua is hereby
AFFIRMED in toto.

SO ORDERED.

G.R. No. 160328             February 04, 2005

TERESITA ALCANTARA VERGARA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

YNARES-SANTIAGO, J.:

This petition for review assails the March 28, 2003 decision of the Court of Appeals and its
1 

September 30, 2003 resolution in CA-G.R. CR No. 25799, which affirmed in toto the June 10, 1992
2 

decision of the Regional Trial Court of Makati, Branch 132, in Criminal Case No. 91-2267, finding
3 

petitioner Teresita Alcantara Vergara guilty beyond reasonable doubt of violation of Batas
Pambansa Blg. 22 (BP 22).

The facts show that on June 13, 1988, Livelihood Corporation (LIVECOR) granted Perpetual
Garments Corporation (PERPETUAL) a continuing credit line in the amount of P750,000.00. The 4 

parties agreed that for each availment from the line, PERPETUAL would execute a promissory note
and issue postdated checks corresponding to the amount of the loan. Petitioner, in her capacity as
Vice President and General Manager of PERPETUAL, signed the credit agreement and all the
postdated checks.

One of the checks issued and signed by petitioner was Check No. 019972 for P150,000.00. When
deposited on December 15, 1988, the check was dishonored for insuffiency of funds. On the same
5 

month, LIVECOR verbally informed petitioner of the dishonor of the check.

On April 1, 1991, LIVECOR charged petitioner with violation of BP 22. The information reads: 6 

That on or about the 15th day of Dec. 1988, in the Municipality of Makati, Metro Manila Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously make out or draw and issue to Livecor and represented by Victor
Hernandez[,] to apply on account or for value the dated check described below:

Check No. :019972

Drawn Against :Metro Bank

In the amount of :P150,000.00

Date :Dec. 15, 1988

Payable to :LIVECOR

said accused well knowing that at the time of issue thereof, she did not have sufficient funds in or
credit with the drawee bank for the payment in full of the face amount of such check upon its
presentment for payment within ninety (90) days from the date thereof was subsequently dishonored
by the drawee bank for the reason "DRAWN AGAINST INSUFFICIENT FUNDS" and, despite receipt
of notice of such dishonor, the accused failed to pay said payee the face amount of said check or to
make arrangement for full payment thereof within five (5) banking days after receiving notice.

Contrary to law.

The prosecution claims that petitioner failed to pay the full amount of Check No. 019972 or to make
arrangements for its full payment within 5 days from notice of dishonor thereof in December 1988.
Although petitioner made cash and check payments after the dishonor, the same were treated by
LIVECOR as continuing payments of the outstanding loan. The payments were applied first to the
interests and penalties while the rest were applied to the principal, pursuant to the terms of the
agreement. As of February 29, 1992, PERPETUAL’s total outstanding loan is P610,656.95. 7

Petitioner averred that she cannot be charged with violation of BP 22 because she replaced Check
No. 019972 on May 25, 1989, with 6 checks, each for P25,000.00 or for the total amount of
P150,000.00. She claimed that from the time of dishonor up to March 1992, PERPETUAL paid
8 

LIVECOR P542,000.00 thus covering the full amount of the dishonored check. 9

On June 10, 1992, the trial court rendered decision finding petitioner guilty of violating BP 22. It
ruled, however, that petitioner is not civilly liable to LIVECOR, thus:

Premises considered, the Court finds the accused guilty beyond reasonable doubt of violation of BP
22. Considering, however, that the borrower is Perpetual Garments Corporation and there is no
agreement that she shall be liable for the loan in her personal capacity, she shall not be liable to pay
the unpaid balance thereof.

WHEREFORE, the accused is hereby sentenced to pay a fine of P200,000.00 with subsidiary
imprisonment in case of insolvency and to pay the costs.

SO ORDERED. 10

Dissatisfied, both LIVECOR and petitioner appealed to the Court of Appeals.

On March 28, 2003, the appellate court dismissed the consolidated appeals and affirmed the trial
court’s decision in all respects. The dispositive portion thereof, reads:

IN VIEW OF ALL THE FOREGOING, the instant appeals are ordered DISMISSED, and the
appealed Decision dated June 10, 1992 is hereby AFFIRMED in toto. No pronouncement as to
costs.

SO ORDERED. 11
Petitioner moved for reconsideration but was denied on September 30, 2003. Hence, the instant
12 

petition.

In a Resolution dated December 15, 2004, petitioner was required to file a Reply. However, to date,
no reply was filed. In the interest of justice and speedy disposition of cases, we resolve to dispense
with the filing of said Reply and to decide the case based on the pleadings filed.

The issue for resolution in this petition for review is whether petitioner should be convicted of
violation of BP 22.

The Solicitor General contends that petitioner’s conviction is proper because all the elements of
violation of BP 22 are present. Petitioner, on the other hand, insists that the full payment of the value
of the dishonored check 2 years prior to the filing of the information justifies her acquittal. Petitioner
argues that her conviction is without basis since the total payments she made from knowledge of the
dishonor of the check in December 1988, up to the filing of the information on April 1, 1991, far
exceeds the value of the bounced check.

It is settled that factual findings of the trial court are accorded great weight, even finality on appeal,
except when it has failed to appreciate certain facts and circumstances which, if taken into account,
would materially affect the result of the case. This exception is present here. 13

In King v. People, we ruled thus:

14 

Section 1 of BP 22 defines the offense as follows:

Section 1. Checks without sufficient funds. - Any person who makes or draws and issues any check
to apply on account or for value, knowing at the time of issue that he does not have sufficient funds
in or credit with the drawee bank for the payment of such check in full upon its presentment, which
check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would
have been dishonored for the same reason had not the drawer, without any valid reason, ordered
the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not
more than one (1) year or by a fine of not less than but not more than double the amount of the
check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and
imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who having sufficient funds with the drawee
bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a
credit to cover the full amount of the check if presented within a period of ninety (90) days from the
date appearing thereon, for which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who actually
signed the check in behalf of such drawer shall be liable under this Act.

Accordingly, this Court has held that the elements of the crime are as follows:

1. The accused makes, draws or issues any check to apply to account or for value.

2. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit; or it
would have been dishonored for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment.

3. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or
credit with, drawee bank for the payment of the check in full upon its presentment. 15

To hold petitioner liable for violation of BP 22, it is not enough that she issued the check that was
subsequently dishonored for insufficiency of funds. It must also be shown beyond reasonable doubt
that she knew of the insufficiency of funds at the time the check was issued. Thus:

To hold a person liable under BP 22, it is not enough to establish that a check issued was
subsequently dishonored. It must be shown further that the person who issued the check knew "at
the time of issue that he does not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment." Because this element involves a state of mind
which is difficult to establish, Section 2 of the law creates a prima facie presumption of such
knowledge, as follows:

Sec. 2. Evidence of knowledge of insufficient funds.– The making, drawing and issuance of a check
payment of which is refused by the drawee because of insufficient funds in or credit with such bank,
when presented within ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder
thereof the amount due thereon, or make arrangements for payment in full by the drawee of such
check within five (5) banking days after receiving notice that such check has not been paid by the
drawee.

In other words, the prima facie presumption arises when a check is issued. But the law also
provides that the presumption does not arise when the issuer pays the amount of the check
or makes arrangement for its payment "within five banking days after receiving notice that
such check has not been paid by the drawee." Verily, BP 22 gives the accused an opportunity
to satisfy the amount indicated in the check and thus avert prosecution. (Emphasis ours)
16 

Going through the records of this case, we find that it was not clearly established when the notice of
dishonor was served on petitioner, thus:

Atty. De Jesus:

After you were informed by the bank that the check was dishonored due to insufficient funds, what
did you do next, if any?

Ms. Dalisay:

We informed our client about it and made several demands upon her to redeem the bounced check.

Q. Did the accused make good the amount of the bounced check?

A. No. 17

Q. After you were informed by the bank that the check bounced, what did you do next, if any?

Atty. Arias:

That was already answered. She informed the accused …

Court:

She said the client was informed and demand was made. How were the demands made upon the
accused?

A. Verbally, Your Honor.

Court:

All verbal?

A: All verbal in the case of the subject check but written in the case of the entire loan. 18

Even the petitioner was not sure as to when she was notified of the dishonor, thus:

Court:

You did not see the return notice of dishonor. So he was aware that the check was dishonored.
Alright. Prior to, about a week before October 10, 1990, did you ever learn whether the check in the
amount of P150,000.00 marked Exhibit D, was dishonored?

Accused:

Yes, Your Honor.

Court:

When for the first time did you learn that the check was dishonored?

A. When they informed me at my residence in Biñan, Your Honor.

Court:
When?

A. That was a long time ago, Your Honor. They just sent their employee to our house at Biñan to
inform me that my check bounced.

Court:

In what year?

A: That was a long time, Your Honor, maybe 1988.

Court:

You were informed of the dishonor of the check. In what month in 1988?

A. Maybe December 1988, Your Honor. 19

To our mind, the above testimonies do not categorically prove exactly when petitioner received the
notice of dishonor. Hence, there was no way of determining when the 5-day period prescribed in
Section 2 of BP 22 would start and end.

In Danao v. Court of Appeals, we held that:

20 

… if there is no proof as to when such notice was received by the drawer, then the presumption
or prima facie evidence provided in Section 2 of B.P. Blg. 22 cannot arise, since there would simply
be no way of reckoning the crucial 5-day period.

In the present case, no proof of receipt by petitioner of any notice of non-payment of the checks was
ever presented during the trial. As found by the trial court itself, "(t)he evidence however is not clear
when Macasieb (private complainant) made the demands. There is no proof of the date when
DANAO received the demand letter (Exh. F)."

Obviously, in the instant case, there is no way of determining when the 5-day period prescribed in
Section 2 of B.P. Blg. 22 would start and end. Thus, the presumption or prima facie evidence of
knowledge by the petitioner of the insufficiency of funds or credit at the times she issued the checks
did not arise.

Even assuming that petitioner was properly notified of the dishonor, still, the prima facie presumption
of knowledge of insufficiency of funds would not arise. Contrary to the claim of LIVECOR, it appears
that an arrangement for the payment of the bounced check was entered into by the parties. Under
the circumstances, we are more inclined to lend credence to petitioner’s allegation that she replaced
the bounced check with 6 checks, each for P25,000.00, or a total of P150,000.00. For more than 2
years after the dishonor, LIVECOR accepted the payments made by PERPETUAL without complain.

In addition, it appears that it has been the practice of LIVECOR to allow its client to "redeem" the
dishonored checks and replace them with new ones. Thus:

Atty. Arias:

And it is a matter of procedure in you office, Madam Witness …

Court:

For a while, is that check different from Exhibit F?

Atty. Arias:

The same, Your Honor.

Q: And as a matter of fact, your practice is that whenever payments are made in check or checks
and if these checks bounced, you first send the letter to redeem or to replace those bounced checks,
is that correct?

Ms. Dalisay:

Yes.
Q: And you did that also, when the check of the accused in the amount of P150,000.00 bounced,
you sent her a letter to redeem or replace the check, is that not correct?

A: I don’t remember about the P150,000.00. I don’t remember sending her a letter.

Q: But it is a matter of practice that you …

Court:

That has been answered. 21

Atty. Arias:

However, your Honor, we want also to establish the fact that whenever a check bounced, they
always asked for replacement or redemption of the check.

Court:

She already admitted that that is a matter of policy. 22

The presumption that the issuer has knowledge of the insufficiency of funds is brought into existence
only after it is proved that the issuer had received notice of dishonor and that within 5 banking days
from receipt thereof, he failed to pay the amount of the check or to make arrangement for its
payment. The prosecution is burdened to prove these acts that give rise to the prima
23 

facie presumption. 24

Under the equipoise rule, where the evidence on an issue of fact is in equipoise or there is doubt on
which side the evidence preponderates, the party having the burden of proof loses. The equipoise
rule finds application if, as in this case, the inculpatory facts and circumstances are capable of two or
more explanations, one of which is consistent with the innocence of the accused and the other
consistent with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not
suffice to produce a conviction. Briefly stated, the needed quantum of proof to convict the accused of
the crime charged is found lacking. 25

In the case at bar, the constitutional presumption of innocence tilts the scales in favor of petitioner
considering that the prosecution failed to discharge its burden of proving the evidentiary facts that
would establish the prima facie presumption of knowledge of the insufficiency of funds. In criminal
cases, the prosecution’s cases must rise and fall on the strength of its own evidence, never on the
weakness of the defense. 26

Finally, there is no merit in prosecution’s claim that even if the 6 checks be considered replacement
of the dishonored check, petitioner should still be held liable because they did not cover the entire
amount of the dishonored check as 1 of the 6 checks for P25,000.00 also bounced for insufficiency
of funds. Note that the replacement check for P25,000.00 was dishonored in July 1989 but
LIVECOR notified PERPETUAL of the dishonor only after 3 years or on March 10, 1992. Petitioner
could not thus be blamed for failing to make good said check due to the negligence of LIVECOR. At
any rate, even if the P25,000.00 dishonored check be excluded from the P423,365.00 payments
made by petitioner, the remaining balance thereof is still more than the P150,000.00 dishonored
check subject of the instant case.

In Magno v. Court of Appeals, it was held that Batas Pambansa Blg. 22 or the Bouncing Checks
27 

Law was devised to safeguard the interest of the banking system and the legitimate public checking
account user. It was not intended to shelter or favor nor encourage users of the system to enrich
themselves through the manipulation and circumvention of the noble purpose and objectives of the
law. Under the utilitarian theory, the "protective theory" in criminal law affirms that the primary
function of punishment is the protection of the society against actual and potential wrong doers.

In the case at bar, petitioner could hardly be classified as a menace against whom the society
should be protected. The records show that from December 1988 when petitioner was informed of
the dishonor, to the filing of the information on April 1, 1991, she paid P423,354.00 to
LIVECOR. Although petitioner has not yet fully paid the loan, it cannot be denied that the previous
28 

payments fully covered the value of the dishonored check. It would be unjust to penalize her for the
issuance of said check which has been satisfied 2 years prior to the filing of the criminal charge
against her.
Similarly, in gr_ Griffith v. Court of Appeals, the conviction of the accused for violation of BP 22 was
29 

found to be unjustified because the case was filed 2 years after private complainant had collected
more than the value of the dishonored check. In acquitting the accused, we held that there exists no
more reason to penalize him for the offense charged, thus:

While we agree with the private respondent that the gravamen of violation of B.P. 22 is the issuance
of worthless checks that are dishonored upon their presentment for payment, we should not apply
penal laws mechanically. We must find if the application of the law is consistent with the purpose of
and reason for the law. Ratione cessat lex, et cessat lex. (When the reason for the law ceases, the
law ceases.) It is not the letter alone but the spirit of the law also that gives it life. This is especially
so in this case where a debtor’s criminalization would not serve the ends of justice but in fact subvert
it. The creditor having collected already more than a sufficient amount to cover the value of the
checks for payment of rentals, via auction sale, we find that holding the debtor’s president to answer
for a criminal offense under B.P. 22 two years after said collection is no longer tenable nor justified
by law or equitable considerations.

In sum, considering that the money value of the two checks issued by petitioner has already been
effectively paid two years before the informations against him were filed, we find merit in this petition.
We hold that petitioner herein could not be validly and justly convicted or sentenced for violation of
B.P. 22. Whether the number of checks issued determines the number of violations of B.P. 22, or
whether there should be a distinction between postdated and other kinds of checks need no longer
detain us for being immaterial now to the determination of the issue of guilt or innocence of
petitioner.
30

WHEREFORE, in view of all the foregoing, the petition is GRANTED. The decision of the Court of
Appeals dated March 28, 2003 in CA-G.R. CR No. 25799 which affirmed in toto the June 10, 1992
decision of the Regional Trial Court of Makati, Branch 132, in Criminal Case No. 91-2267, and its
September 30, 2003 resolution denying reconsideration thereof, are REVERSED and SET ASIDE.
Petitioner Teresita Alcantara Vergara is ACQUITTED of the charge of violation of Batas Pambansa
Blg. 22. No pronouncement as to costs.

SO ORDERED.

G.R. No. 151258               February 1, 2012

ARTEMIO VILLAREAL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 154954

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
The HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, Jr.,
JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO
GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO
MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE
FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL
ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH
LLEDO, and RONAN DE GUZMAN, Respondents.

x-----------------------x

G.R. No. 155101

FIDELITO DIZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. Nos. 178057 & 178080

GERARDA H. VILLA, Petitioner,
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ
SARUCA, Jr., and ANSELMO ADRIANO, Respondents.
 DECISION

SERENO, J.:

The public outrage over the death of Leonardo "Lenny" Villa – the victim in this case – on 10
February 1991 led to a very strong clamor to put an end to hazing. Due in large part to the brave
1 

efforts of his mother, petitioner Gerarda Villa, groups were organized, condemning his senseless
and tragic death. This widespread condemnation prompted Congress to enact a special law, which
became effective in 1995, that would criminalize hazing. The intent of the law was to discourage
2 

members from making hazing a requirement for joining their sorority, fraternity, organization, or
association. Moreover, the law was meant to counteract the exculpatory implications of "consent"
3 

and "initial innocent act" in the conduct of initiation rites by making the mere act of hazing punishable
or mala prohibita.4

Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country. Within a year of his
5 

death, six more cases of hazing-related deaths emerged – those of Frederick Cahiyang of the
University of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of Pamantasan
ng Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training Center; Joselito
Mangga of the Philippine Merchant Marine Institute; and Joselito Hernandez of the University of the
Philippines in Baguio City.6

Although courts must not remain indifferent to public sentiments, in this case the general
condemnation of a hazing-related death, they are still bound to observe a fundamental principle in
our criminal justice system – "[N]o act constitutes a crime… unless it is made so by law." Nullum
7 

crimen, nulla poena sine lege. Even if an act is viewed by a large section of the populace as immoral
or injurious, it cannot be considered a crime, absent any law prohibiting its commission. As
interpreters of the law, judges are called upon to set aside emotion, to resist being swayed by strong
public sentiments, and to rule strictly based on the elements of the offense and the facts allowed in
evidence.

Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v. People), G.R.
No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057
and 178080 (Villa v. Escalona).

Facts

The pertinent facts, as determined by the Court of Appeals (CA) and the trial court, are as follows:
8  9 

In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law
signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert"
Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).

On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity
(Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s Restaurant to have
dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the
neophytes on what to expect during the initiation rites. The latter were informed that there would be
physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for
three days. After their "briefing," they were brought to the Almeda Compound in Caloocan City for
the commencement of their initiation.

Even before the neophytes got off the van, they had already received threats and insults from the
Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of
the Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were
then subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run,"
which required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering
blows to the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their
backs against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over
their legs; the "Rounds," in which the neophytes were held at the back of their pants by the
"auxiliaries" (the Aquilans charged with the duty of lending assistance to neophytes during initiation
rites), while the latter were being hit with fist blows on their arms or with knee blows on their thighs
by two Aquilans; and the "Auxies’ Privilege Round," in which the auxiliaries were given the
opportunity to inflict physical pain on the neophytes. During this time, the neophytes were also
indoctrinated with the fraternity principles. They survived their first day of initiation.

On the morning of their second day – 9 February 1991 – the neophytes were made to present comic
plays and to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Whenever they would give a wrong answer, they would be hit on their arms or
legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment
them physically and psychologically. The neophytes were subjected to the same manner of hazing
that they endured on the first day of initiation. After a few hours, the initiation for the day officially
ended.

After a while, accused non-resident or alumni fraternity members Fidelito Dizon (Dizon) and Artemio
10 

Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson
Victorino (Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he
reopened the initiation rites. The fraternity members, including Dizon and Villareal, then subjected
the neophytes to "paddling" and to additional rounds of physical pain. Lenny received several paddle
blows, one of which was so strong it sent him sprawling to the ground. The neophytes heard him
complaining of intense pain and difficulty in breathing. After their last session of physical beatings,
Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again, the
initiation for the day was officially ended, and the neophytes started eating dinner. They then slept at
the carport.

After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and incoherent
mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just
overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans
started helping him. They removed his clothes and helped him through a sleeping bag to keep him
warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was
pronounced dead on arrival.

Consequently, a criminal case for homicide was filed against the following 35 Aquilans:

In Criminal Case No. C-38340(91)

1. Fidelito Dizon (Dizon)

2. Artemio Villareal (Villareal)

3. Efren de Leon (De Leon)

4. Vincent Tecson (Tecson)

5. Junel Anthony Ama (Ama)

6. Antonio Mariano Almeda (Almeda)

7. Renato Bantug, Jr. (Bantug)

8. Nelson Victorino (Victorino)

9. Eulogio Sabban (Sabban)

10. Joseph Lledo (Lledo)

11. Etienne Guerrero (Guerrero)

12. Michael Musngi (Musngi)

13. Jonas Karl Perez (Perez)

14. Paul Angelo Santos (Santos)

15. Ronan de Guzman (De Guzman)

16. Antonio General (General)

17. Jaime Maria Flores II (Flores)

18. Dalmacio Lim, Jr. (Lim)

19. Ernesto Jose Montecillo (Montecillo)

20. Santiago Ranada III (Ranada)

21. Zosimo Mendoza (Mendoza)

 22. Vicente Verdadero (Verdadero)

23. Amante Purisima II (Purisima)

24. Jude Fernandez (J. Fernandez)

25. Adel Abas (Abas)

26. Percival Brigola (Brigola)

In Criminal Case No. C-38340

1. Manuel Escalona II (Escalona)

2. Crisanto Saruca, Jr. (Saruca)

3. Anselmo Adriano (Adriano)

4. Marcus Joel Ramos (Ramos)

5. Reynaldo Concepcion (Concepcion)

6. Florentino Ampil (Ampil)

7. Enrico de Vera III (De Vera)

8. Stanley Fernandez (S. Fernandez)

9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the
11 

other hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in
abeyance due to certain matters that had to be resolved first. 12

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding
the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal Code. A few weeks after the trial court rendered its
13 

judgment, or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused
commenced anew. 14

On 10 January 2002, the CA in (CA-G.R. No. 15520) set aside the finding of conspiracy by the trial
15 

court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then passed away, so the following
Decision applied only to the remaining 25 accused, viz:

1. Nineteen of the accused-appellants – Victorino, Sabban, Lledo, Guerrero, Musngi, Perez,

De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero,
Purisima, Fernandez, Abas, and Brigola (Victorino et al.) – were acquitted, as their individual
guilt was not established by proof beyond reasonable doubt.

2. Four of the accused-appellants – Vincent Tecson, Junel Anthony Ama, Antonio Mariano
Almeda, and Renato Bantug, Jr. (Tecson et al.) – were found guilty of the crime of slight
physical injuries and sentenced to 20 days of arresto menor. They were also ordered to
jointly pay the heirs of the victim the sum of ₱ 30,000 as indemnity.

3. Two of the accused-appellants – Fidelito Dizon and Artemio Villareal – were found guilty
beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal
Code. Having found no mitigating or aggravating circumstance, the CA sentenced them to
an indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal.
They were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum
of ₱ 50,000 and to pay the additional amount of ₱ 1,000,000 by way of moral damages.

On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused
Concepcion on the ground of violation of his right to speedy trial. Meanwhile, on different dates
16 

between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of
accused Escalona, Ramos, Saruca, and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos.
17 

89060 & 90153 reversed the trial court’s Orders and dismissed the criminal case against Escalona,
18 

Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial.
19
From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought
before this Court.

G.R. No. 151258 – Villareal v. People

The instant case refers to accused Villareal’s Petition for Review on Certiorari under Rule 45. The
Petition raises two reversible errors allegedly committed by the CA in its Decision dated 10 January
2002 in CA-G.R. No. 15520 – first, denial of due process; and, second, conviction absent proof
beyond reasonable doubt. 20

While the Petition was pending before this Court, counsel for petitioner Villareal filed a Notice of
Death of Party on 10 August 2011. According to the Notice, petitioner Villareal died on 13 March
2011. Counsel thus asserts that the subject matter of the Petition previously filed by petitioner does
not survive the death of the accused.

G.R. No. 155101 – Dizon v. People

Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CA’s Decision dated
10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520. Petitioner sets forth
21 

two main issues – first, that he was denied due process when the CA sustained the trial court’s
forfeiture of his right to present evidence; and, second, that he was deprived of due process when
the CA did not apply to him the same "ratio decidendi that served as basis of acquittal of the other
accused." 22

As regards the first issue, the trial court made a ruling, which forfeited Dizon’s right to present
evidence during trial. The trial court expected Dizon to present evidence on an earlier date since a
co-accused, Antonio General, no longer presented separate evidence during trial. According to
Dizon, his right should not have been considered as waived because he was justified in asking for a
postponement. He argues that he did not ask for a resetting of any of the hearing dates and in fact
insisted that he was ready to present evidence on the original pre-assigned schedule, and not on an
earlier hearing date.

Regarding the second issue, petitioner contends that he should have likewise been acquitted, like
the other accused, since his acts were also part of the traditional initiation rites and were not tainted
by evil motives. He claims that the additional paddling session was part of the official activity of the
23 

fraternity. He also points out that one of the neophytes admitted that the chairperson of the initiation
rites "decided that [Lenny] was fit enough to undergo the initiation so Mr. Villareal proceeded to do
the paddling…." Further, petitioner echoes the argument of the Solicitor General that "the individual
24 

blows inflicted by Dizon and Villareal could not have resulted in Lenny’s death." The Solicitor
25 

General purportedly averred that, "on the contrary, Dr. Arizala testified that the injuries suffered by
Lenny could not be considered fatal if taken individually, but if taken collectively, the result is the
violent death of the victim."
26

Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that Lenny’s
father could not have stolen the parking space of Dizon’s father, since the latter did not have a car,
and their fathers did not work in the same place or office. Revenge for the loss of the parking space
was the alleged ill motive of Dizon. According to petitioner, his utterances regarding a stolen parking
space were only part of the "psychological initiation." He then cites the testimony of Lenny’s co-
neophyte – witness Marquez – who admitted knowing "it was not true and that he was just making it
up…." 27

Further, petitioner argues that his alleged motivation of ill will was negated by his show of concern
for Villa after the initiation rites. Dizon alludes to the testimony of one of the neophytes, who
mentioned that the former had kicked the leg of the neophyte and told him to switch places with
Lenny to prevent the latter’s chills. When the chills did not stop, Dizon, together with Victorino,
helped Lenny through a sleeping bag and made him sit on a chair. According to petitioner, his
alleged ill motivation is contradicted by his manifestation of compassion and concern for the victim’s
well-being.

G.R. No. 154954 – People v. Court of Appeals

This Petition for Certiorari under Rule 65 seeks the reversal of the CA’s Decision dated 10 January
2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it acquitted 19
(Victorino et al.) and convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of slight
physical injuries. According to the Solicitor General, the CA erred in holding that there could have
28 

been no conspiracy to commit hazing, as hazing or fraternity initiation had not yet been criminalized
at the time Lenny died.
In the alternative, petitioner claims that the ruling of the trial court should have been upheld,
inasmuch as it found that there was conspiracy to inflict physical injuries on Lenny. Since the injuries
led to the victim’s death, petitioner posits that the accused Aquilans are criminally liable for the
resulting crime of homicide, pursuant to Article 4 of the Revised Penal Code. The said article
29 

provides: "Criminal liability shall be incurred… [b]y any person committing a felony (delito) although
the wrongful act done be different from that which he intended."

Petitioner also argues that the rule on double jeopardy is inapplicable. According to the Solicitor
General, the CA acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in
setting aside the trial court’s finding of conspiracy and in ruling that the criminal liability of all the
accused must be based on their individual participation in the commission of the crime.

G.R. Nos. 178057 and 178080 – Villa v. Escalona

Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of the CA’s
Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060
and 90153. The Petition involves the dismissal of the criminal charge filed against Escalona,
30 

Ramos, Saruca, and Adriano.

Due to "several pending incidents," the trial court ordered a separate trial for accused Escalona,
Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon (Criminal
Case No. C-38340) to commence after proceedings against the 26 other accused in Criminal Case
No. C-38340(91) shall have terminated. On 8 November 1993, the trial court found the 26 accused
guilty beyond reasonable doubt. As a result, the proceedings in Criminal Case No. C-38340
involving the nine other co-accused recommenced on 29 November 1993. For "various reasons," the
initial trial of the case did not commence until 28 March 2005, or almost 12 years after the
arraignment of the nine accused.

Petitioner Villa assails the CA’s dismissal of the criminal case involving 4 of the 9 accused, namely,
Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert their right to
speedy trial within a reasonable period of time. She also points out that the prosecution cannot be
faulted for the delay, as the original records and the required evidence were not at its disposal, but
were still in the appellate court.

We resolve herein the various issues that we group into five.

Issues

1. Whether the forfeiture of petitioner Dizon’s right to present evidence constitutes denial of
due process;

2. Whether the CA committed grave abuse of discretion, amounting to lack or excess of

jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for
violation of the right of the accused to speedy trial;

3. Whether the CA committed grave abuse of discretion, amounting to lack or excess of

jurisdiction, when it set aside the finding of conspiracy by the trial court and adjudicated the
liability of each accused according to individual participation;

4. Whether accused Dizon is guilty of homicide; and

5. Whether the CA committed grave abuse of discretion when it pronounced Tecson, Ama,
Almeda, and Bantug guilty only of slight physical injuries.

Discussion

Resolution on Preliminary Matters

G.R. No. 151258 – Villareal v. People

In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took
note of counsel for petitioner’s Notice of Death of Party.

According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is totally
extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is
extinguished if the offender dies prior to final judgment. The term "personal penalties" refers to the
service of personal or imprisonment penalties, while the term "pecuniary penalties" (las pecuniarias)
31 

refers to fines and costs, including civil liability predicated on the criminal offense complained of
32 
(i.e., civil liability ex delicto). However, civil liability based on a source of obligation other than the
33 

delict survives the death of the accused and is recoverable through a separate civil action. 34

Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal
and pecuniary penalties, including his civil liability directly arising from the delict complained of.
Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed
and terminated.

G.R. No. 155101 (Dizon v. People)

In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for
accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of October
1993. The Order likewise stated that "it will not entertain any postponement and that all the accused
35 

who have not yet presented their respective evidence should be ready at all times down the line,
with their evidence on all said dates. Failure on their part to present evidence when required shall
therefore be construed as waiver to present evidence." 36

However, on 19 August 1993, counsel for another accused manifested in open court that his client –
Antonio General – would no longer present separate evidence. Instead, the counsel would adopt the
testimonial evidence of the other accused who had already testified. Because of this development
37 

and pursuant to the trial court’s Order that the parties "should be ready at all times down the line,"
the trial court expected Dizon to present evidence on the next trial date – 25 August 1993 – instead
of his originally assigned dates. The original dates were supposed to start two weeks later, or on 8
September 1993. Counsel for accused Dizon was not able to present evidence on the accelerated
38 

date. To address the situation, counsel filed a Constancia on 25 August 1993, alleging that he had to
appear in a previously scheduled case, and that he would be ready to present evidence on the dates
originally assigned to his clients. The trial court denied the Manifestation on the same date and
39 

treated the Constancia as a motion for postponement, in violation of the three-day-notice rule under
the Rules of Court. Consequently, the trial court ruled that the failure of Dizon to present evidence
40 

amounted to a waiver of that right. 41

Accused-petitioner Dizon thus argues that he was deprived of due process of law when the trial
court forfeited his right to present evidence. According to him, the postponement of the 25 August
1993 hearing should have been considered justified, since his original pre-assigned trial dates were
not supposed to start until 8 September 1993, when he was scheduled to present evidence. He
posits that he was ready to present evidence on the dates assigned to him. He also points out that
he did not ask for a resetting of any of the said hearing dates; that he in fact insisted on being
allowed to present evidence on the dates fixed by the trial court. Thus, he contends that the trial
court erred in accelerating the schedule of presentation of evidence, thereby invalidating the finding
of his guilt.

The right of the accused to present evidence is guaranteed by no less than the Constitution
itself. Article III, Section 14(2) thereof, provides that "in all criminal prosecutions, the accused …
42 

shall enjoy the right to be heard by himself and counsel…" This constitutional right includes the right
to present evidence in one’s defense, as well as the right to be present and defend oneself in
43 

person at every stage of the proceedings. 44

In Crisostomo v. Sandiganbayan, the Sandiganbayan set the hearing of the defense’s presentation
45 

of evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled due to "lack of
quorum in the regular membership" of the Sandiganbayan’s Second Division and upon the
agreement of the parties. The hearing was reset for the next day, 22 June 1995, but Crisostomo and
his counsel failed to attend. The Sandiganbayan, on the very same day, issued an Order directing
the issuance of a warrant for the arrest of Crisostomo and the confiscation of his surety bond. The
Order further declared that he had waived his right to present evidence because of his
nonappearance at "yesterday’s and today’s scheduled hearings." In ruling against the Order, we
held thus:

Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomo’s non-
appearance during the 22 June 1995 trial was merely a waiver of his right to be present for trial on
such date only and not for the succeeding trial dates…

x x x           x x x          x x x

Moreover, Crisostomo’s absence on the 22 June 1995 hearing should not have been deemed as a
waiver of his right to present evidence. While constitutional rights may be waived, such waiver must
be clear and must be coupled with an actual intention to relinquish the right. Crisostomo did not
voluntarily waive in person or even through his counsel the right to present evidence. The
Sandiganbayan imposed the waiver due to the agreement of the prosecution, Calingayan, and
Calingayan's counsel.
In criminal cases where the imposable penalty may be death, as in the present case, the court is
called upon to see to it that the accused is personally made aware of the consequences of a waiver
of the right to present evidence. In fact, it is not enough that the accused is simply warned of the
consequences of another failure to attend the succeeding hearings. The court must first explain to
the accused personally in clear terms the exact nature and consequences of a waiver. Crisostomo
was not even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right
to present evidence without even allowing Crisostomo to explain his absence on the 22 June 1995
hearing.

Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not
assumed and taken lightly. The presence of the accused and his counsel is indispensable so that
the court could personally conduct a searching inquiry into the waiver x x x. (Emphasis supplied)
46 

The trial court should not have deemed the failure of petitioner to present evidence on 25 August
1993 as a waiver of his right to present evidence. On the contrary, it should have considered the
excuse of counsel justified, especially since counsel for another accused – General – had made a
last-minute adoption of testimonial evidence that freed up the succeeding trial dates; and since
Dizon was not scheduled to testify until two weeks later. At any rate, the trial court pre-assigned five
hearing dates for the reception of evidence. If it really wanted to impose its Order strictly, the most it
could have done was to forfeit one out of the five days set for Dizon’s testimonial evidence. Stripping
the accused of all his pre-assigned trial dates constitutes a patent denial of the constitutionally
guaranteed right to due process.

Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to present
evidence and be heard does not per se work to vacate a finding of guilt in the criminal case or to
enforce an automatic remand of the case to the trial court. In People v. Bodoso, we ruled that where
47 

facts have adequately been represented in a criminal case, and no procedural unfairness or
irregularity has prejudiced either the prosecution or the defense as a result of the invalid waiver, the
rule is that a guilty verdict may nevertheless be upheld if the judgment is supported beyond
reasonable doubt by the evidence on record. 48

We do not see any material inadequacy in the relevant facts on record to resolve the case at bar.
Neither can we see any "procedural unfairness or irregularity" that would substantially prejudice
either the prosecution or the defense as a result of the invalid waiver. In fact, the arguments set forth
by accused Dizon in his Petition corroborate the material facts relevant to decide the matter. Instead,
what he is really contesting in his Petition is the application of the law to the facts by the trial court
and the CA. Petitioner Dizon admits direct participation in the hazing of Lenny Villa by alleging in his
Petition that "all actions of the petitioner were part of the traditional rites," and that "the alleged
extension of the initiation rites was not outside the official activity of the fraternity." He even argues
49 

that "Dizon did not request for the extension and he participated only after the activity was
sanctioned." 50

For one reason or another, the case has been passed or turned over from one judge or justice to
another – at the trial court, at the CA, and even at the Supreme Court. Remanding the case for the
reception of the evidence of petitioner Dizon would only inflict further injustice on the parties. This
case has been going on for almost two decades. Its resolution is long overdue. Since the key facts
necessary to decide the case have already been determined, we shall proceed to decide it.

G.R. Nos. 178057 and 178080 (Villa v. Escalona)

Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not have
been dismissed, since they failed to assert their right to speedy trial within a reasonable period of
time. She points out that the accused failed to raise a protest during the dormancy of the criminal
case against them, and that they asserted their right only after the trial court had dismissed the case
against their co-accused Concepcion. Petitioner also emphasizes that the trial court denied the
respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and Adriano, because it found that
"the prosecution could not be faulted for the delay in the movement of this case when the original
records and the evidence it may require were not at its disposal as these were in the Court of
Appeals." 51

The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16, Article III of
the 1987 Constitution. This right requires that there be a trial free from vexatious, capricious or
52 

oppressive delays. The right is deemed violated when the proceeding is attended with unjustified
53 

postponements of trial, or when a long period of time is allowed to elapse without the case being
tried and for no cause or justifiable motive. In determining the right of the accused to speedy trial,
54 

courts should do more than a mathematical computation of the number of postponements of the
scheduled hearings of the case. The conduct of both the prosecution and the defense must be
55 

weighed. Also to be considered are factors such as the length of delay, the assertion or non-
56 

assertion of the right, and the prejudice wrought upon the defendant. 57
We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the right of
the accused to speedy trial is tantamount to acquittal. As a consequence, an appeal or a
58 

reconsideration of the dismissal would amount to a violation of the principle of double jeopardy. As 59 

we have previously discussed, however, where the dismissal of the case is capricious, certiorari
lies. The rule on double jeopardy is not triggered when a petition challenges the validity of the order
60 

of dismissal instead of the correctness thereof. Rather, grave abuse of discretion amounts to lack of
61 

jurisdiction, and lack of jurisdiction prevents double jeopardy from attaching. 62

We do not see grave abuse of discretion in the CA’s dismissal of the case against accused
Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy trial. The
court held thus:

An examination of the procedural history of this case would reveal that the following factors
contributed to the slow progress of the proceedings in the case below:

x x x           x x x          x x x

5) The fact that the records of the case were elevated to the Court of Appeals and the prosecution’s
failure to comply with the order of the court a quo requiring them to secure certified true copies of the
same.

x x x           x x x          x x x

While we are prepared to concede that some of the foregoing factors that contributed to the delay of
the trial of the petitioners are justifiable, We nonetheless hold that their right to speedy trial has been
utterly violated in this case x x x.

x x x           x x x          x x x

[T]he absence of the records in the trial court [was] due to the fact that the records of the case were
elevated to the Court of Appeals, and the prosecution’s failure to comply with the order of the court a
quo requiring it to secure certified true copies of the same. What is glaring from the records is the
fact that as early as September 21, 1995, the court a quo already issued an Order requiring the
prosecution, through the Department of Justice, to secure the complete records of the case from the
Court of Appeals. The prosecution did not comply with the said Order as in fact, the same directive
was repeated by the court a quo in an Order dated December 27, 1995. Still, there was no
compliance on the part of the prosecution. It is not stated when such order was complied with. It
appears, however, that even until August 5, 2002, the said records were still not at the disposal of
the trial court because the lack of it was made the basis of the said court in granting the motion to
dismiss filed by co-accused Concepcion x x x.

x x x           x x x          x x x

It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of almost
seven years, there was no action at all on the part of the court a quo. Except for the pleadings filed
by both the prosecution and the petitioners, the latest of which was on January 29, 1996, followed by
petitioner Saruca’s motion to set case for trial on August 17, 1998 which the court did not act upon,
the case remained dormant for a considerable length of time. This prolonged inactivity whatsoever is
precisely the kind of delay that the constitution frowns upon x x x. (Emphasis supplied)
63 

This Court points out that on 10 January 1992, the final amended Information was filed against
Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and De Vera. On 64 

29 November 1993, they were all arraigned. Unfortunately, the initial trial of the case did not
65 

commence until 28 March 2005 or almost 12 years after arraignment. 66

As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity of the
Sandiganbayan for close to five years since the arraignment of the accused amounts to an
unreasonable delay in the disposition of cases – a clear violation of the right of the accused to a
speedy disposition of cases. Thus, we held:
67 

The delay in this case measures up to the unreasonableness of the delay in the disposition of cases
in Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the
Ombudsman in resolving the criminal complaints to be violative of the constitutionally guaranteed
right to a speedy disposition of cases; similarly, in Roque vs. Office of the Ombudsman, where the
Court held that the delay of almost six years disregarded the Ombudsman's duty to act promptly on
complaints before him; and in Cervantes vs. Sandiganbayan, where the Court held that the
Sandiganbayan gravely abused its discretion in not quashing the information which was filed six
years after the initiatory complaint was filed and thereby depriving petitioner of his right to a speedy
disposition of the case. So it must be in the instant case, where the reinvestigation by the
Ombudsman has dragged on for a decade already. (Emphasis supplied)
68 

From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that accused
Escalona et al.’s right to speedy trial was violated. Since there is nothing in the records that would
show that the subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and De
Vera, the effects of this ruling shall be limited to accused Escalona, Ramos, Saruca, and Adriano.

G.R. No. 154954 (People v. Court of Appeals)

The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that when a
person is charged with an offense, and the case is terminated – either by acquittal or conviction or in
any other manner without the consent of the accused – the accused cannot again be charged with
the same or an identical offense. This principle is founded upon the law of reason, justice and
69 

conscience. It is embodied in the civil law maxim non bis in idem found in the common law of
70 

England and undoubtedly in every system of jurisprudence. It found expression in the Spanish Law,
71 

in the Constitution of the United States, and in our own Constitution as one of the fundamental rights
of the citizen, viz: 72 

Article III – Bill of Rights

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional right,
provides as follows: 73

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by
a court of competent jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.

The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse
the acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the
Rules of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the
same Rules. The requisites for invoking double jeopardy are the following: (a) there is a valid
74 

complaint or information; (b) it is filed before a competent court; (c) the defendant pleaded to the
charge; and (d) the defendant was acquitted or convicted, or the case against him or her was
dismissed or otherwise terminated without the defendant’s express consent. 75

As we have reiterated in People v. Court of Appeals and Galicia, "[a] verdict of acquittal is
immediately final and a reexamination of the merits of such acquittal, even in the appellate courts,
will put the accused in jeopardy for the same offense. The finality-of-acquittal doctrine has several
avowed purposes. Primarily, it prevents the State from using its criminal processes as an instrument
of harassment to wear out the accused by a multitude of cases with accumulated trials. It also
serves the additional purpose of precluding the State, following an acquittal, from successively
retrying the defendant in the hope of securing a conviction. And finally, it prevents the State,
following conviction, from retrying the defendant again in the hope of securing a greater
penalty." We further stressed that "an acquitted defendant is entitled to the right of repose as a
76 

direct consequence of the finality of his acquittal."

77

This prohibition, however, is not absolute. The state may challenge the lower court’s acquittal of the
accused or the imposition of a lower penalty on the latter in the following recognized exceptions: (1)
where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount
to a deprivation of due process; (2) where there is a finding of mistrial; or (3) where there has been
78  79 

a grave abuse of discretion. 80

The third instance refers to this Court’s judicial power under Rule 65 to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government. Here, the party asking for the review must show
81 

the presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a

patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal
to perform a duty imposed by law or to act in contemplation of law; an exercise of power in an
arbitrary and despotic manner by reason of passion and hostility; or a blatant abuse of authority to a
82 
point so grave and so severe as to deprive the court of its very power to dispense justice. In such an
83 

event, the accused cannot be considered to be at risk of double jeopardy. 84

The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the
acquittal of Victorino et al. and (2) the conviction of Tecson et al. for the lesser crime of slight
physical injuries, both on the basis of a misappreciation of facts and evidence. According to the
Petition, "the decision of the Court of Appeals is not in accordance with law because private
complainant and petitioner were denied due process of law when the public respondent completely
ignored the a) Position Paper x x x b) the Motion for Partial Reconsideration x x x and c) the
petitioner’s Comment x x x." Allegedly, the CA ignored evidence when it adopted the theory of
85 

individual responsibility; set aside the finding of conspiracy by the trial court; and failed to apply
Article 4 of the Revised Penal Code. The Solicitor General also assails the finding that the physical
86 

blows were inflicted only by Dizon and Villareal, as well as the appreciation of Lenny Villa’s consent
to hazing. 87

In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the probative value
of the evidence presented by the parties. In People v. Maquiling, we held that grave abuse of
88 

discretion cannot be attributed to a court simply because it allegedly misappreciated the facts and
the evidence. Mere errors of judgment are correctible by an appeal or a petition for review under
89 

Rule 45 of the Rules of Court, and not by an application for a writ of certiorari. Therefore, pursuant
90 

to the rule on double jeopardy, we are constrained to deny the Petition contra Victorino et al. – the
19 acquitted fraternity members.

We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug – the
four fraternity members convicted of slight physical injuries.

Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the
state seeks the imposition of a higher penalty against the accused. We have also recognized,
91 

however, that certiorari may be used to correct an abusive judgment upon a clear demonstration that
the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to
dispense justice. The present case is one of those instances of grave abuse of discretion.
92 

In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the CA
reasoned thus:

Based on the medical findings, it would appear that with the exclusion of the fatal wounds inflicted by
the accused Dizon and Villareal, the injuries sustained by the victim as a result of the physical
punishment heaped on him were serious in nature. However, by reason of the death of the victim,
there can be no precise means to determine the duration of the incapacity or the medical attendance
required. To do so, at this stage would be merely speculative. In a prosecution for this crime where
the category of the offense and the severity of the penalty depend on the period of illness or
incapacity for labor, the length of this period must likewise be proved beyond reasonable doubt in
much the same manner as the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26,
1950]. And when proof of the said period is absent, the crime committed should be deemed only as
slight physical injuries [People v. De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil.
398]. As such, this Court is constrained to rule that the injuries inflicted by the appellants, Tecson,
Ama, Almeda and Bantug, Jr., are only slight and not serious, in nature. (Emphasis supplied and
93 

citations included)

The appellate court relied on our ruling in People v. Penesa in finding that the four accused should
94 

be held guilty only of slight physical injuries. According to the CA, because of "the death of the
victim, there can be no precise means to determine the duration of the incapacity or medical
attendance required." The reliance on Penesa was utterly misplaced. A review of that case would
95 

reveal that the accused therein was guilty merely of slight physical injuries, because the victim’s
injuries neither caused incapacity for labor nor required medical attendance. Furthermore, he did
96 

not die. His injuries were not even serious. Since Penesa involved a case in which the victim
97  98 

allegedly suffered physical injuries and not death, the ruling cited by the CA was patently
inapplicable.

On the contrary, the CA’s ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable
merely for slight physical injuries grossly contradicts its own findings of fact. According to the court,
the four accused "were found to have inflicted more than the usual punishment undertaken during
such initiation rites on the person of Villa." It then adopted the NBI medico-legal officer’s findings
99 

that the antecedent cause of Lenny Villa’s death was the "multiple traumatic injuries" he suffered
from the initiation rites. Considering that the CA found that the "physical punishment heaped on
100 

[Lenny Villa was] serious in nature," it was patently erroneous for the court to limit the criminal
101 

liability to slight physical injuries, which is a light felony.

Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the
consequences of an act, even if its result is different from that intended. Thus, once a person is
found to have committed an initial felonious act, such as the unlawful infliction of physical injuries
that results in the death of the victim, courts are required to automatically apply the legal framework
governing the destruction of life. This rule is mandatory, and not subject to discretion.

The CA’s application of the legal framework governing physical injuries – punished under Articles
262 to 266 for intentional felonies and Article 365 for culpable felonies – is therefore tantamount to a
whimsical, capricious, and abusive exercise of judgment amounting to lack of jurisdiction. According
to the Revised Penal Code, the mandatory and legally imposable penalty in case the victim dies
should be based on the framework governing the destruction of the life of a person, punished under
Articles 246 to 261 for intentional felonies and Article 365 for culpable felonies, and not under the
aforementioned provisions. We emphasize that these two types of felonies are distinct from and
legally inconsistent with each other, in that the accused cannot be held criminally liable for physical
injuries when actual death occurs. 102

Attributing criminal liability solely to Villareal and Dizon – as if only their acts, in and of themselves,
caused the death of Lenny Villa – is contrary to the CA’s own findings. From proof that the death of
the victim was the cumulative effect of the multiple injuries he suffered, the only logical conclusion
103 

is that criminal responsibility should redound to all those who have been proven to have directly
participated in the infliction of physical injuries on Lenny. The accumulation of bruising on his body
caused him to suffer cardiac arrest. Accordingly, we find that the CA committed grave abuse of
discretion amounting to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug
criminally liable for slight physical injuries. As an allowable exception to the rule on double jeopardy,
we therefore give due course to the Petition in G.R. No. 154954.

Resolution on Ultimate Findings

According to the trial court, although hazing was not (at the time) punishable as a crime, the
intentional infliction of physical injuries on Villa was nonetheless a felonious act under Articles 263 to
266 of the Revised Penal Code. Thus, in ruling against the accused, the court a quo found that
pursuant to Article 4(1) of the Revised Penal Code, the accused fraternity members were guilty of
homicide, as it was the direct, natural and logical consequence of the physical injuries they had
intentionally inflicted. 104

The CA modified the trial court’s finding of criminal liability. It ruled that there could have been no
conspiracy since the neophytes, including Lenny Villa, had knowingly consented to the conduct of
hazing during their initiation rites. The accused fraternity members, therefore, were liable only for the
consequences of their individual acts. Accordingly, 19 of the accused – Victorino et al. – were
acquitted; 4 of them – Tecson et al. – were found guilty of slight physical injuries; and the remaining
2 – Dizon and Villareal – were found guilty of homicide.

The issue at hand does not concern a typical criminal case wherein the perpetrator clearly commits
a felony in order to take revenge upon, to gain advantage over, to harm maliciously, or to get even
with, the victim. Rather, the case involves an ex ante situation in which a man – driven by his own
desire to join a society of men – pledged to go through physically and psychologically strenuous
admission rituals, just so he could enter the fraternity. Thus, in order to understand how our criminal
laws apply to such situation absent the Anti-Hazing Law, we deem it necessary to make a brief
exposition on the underlying concepts shaping intentional felonies, as well as on the nature of
physical and psychological initiations widely known as hazing.

Intentional Felony and Conspiracy

Our Revised Penal Code belongs to the classical school of thought. The classical theory posits that
105 

a human person is essentially a moral creature with an absolute free will to choose between good
and evil. It asserts that one should only be adjudged or held accountable for wrongful acts so long
106 

as free will appears unimpaired. The basic postulate of the classical penal system is that humans
107 

are rational and calculating beings who guide their actions with reference to the principles of
pleasure and pain. They refrain from criminal acts if threatened with punishment sufficient to cancel
108 

the hope of possible gain or advantage in committing the crime. Here, criminal liability is thus based
109 

on the free will and moral blame of the actor. The identity of mens rea – defined as a guilty mind, a
110 

guilty or wrongful purpose or criminal intent – is the predominant consideration. Thus, it is not
111 

enough to do what the law prohibits. In order for an intentional felony to exist, it is necessary that
112 

the act be committed by means of dolo or "malice." 113

The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and
intent. The first element, freedom, refers to an act done with deliberation and with power to choose
114 

between two things. The second element, intelligence, concerns the ability to determine the
115 
morality of human acts, as well as the capacity to distinguish between a licit and an illicit act. The 116 

last element, intent, involves an aim or a determination to do a certain act. 117

The element of intent – on which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act. It refers to the purpose of the mind and the
118 

resolve with which a person proceeds. It does not refer to mere will, for the latter pertains to the act,
119 

while intent concerns the result of the act. While motive is the "moving power" that impels one to
120 

action for a definite result, intent is the "purpose" of using a particular means to produce the
result. On the other hand, the term "felonious" means, inter alia, malicious, villainous, and/or
121 

proceeding from an evil heart or purpose. With these elements taken together, the requirement of
122 

intent in intentional felony must refer to malicious intent, which is a vicious and malevolent state of
mind accompanying a forbidden act. Stated otherwise, intentional felony requires the existence of
dolus malus – that the act or omission be done "willfully," "maliciously," "with deliberate evil intent,"
and "with malice aforethought." The maxim is actus non facit reum, nisi mens sit rea – a crime is
123 

not committed if the mind of the person performing the act complained of is innocent. As is required 124 

of the other elements of a felony, the existence of malicious intent must be proven beyond
reasonable doubt. 125

In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article 8 of
the Revised Penal Code – which provides that "conspiracy exists when two or more persons come
to an agreement concerning the commission of a felony and decide to commit it" – is to be
interpreted to refer only to felonies committed by means of dolo or malice. The phrase "coming to an
agreement" connotes the existence of a prefaced "intent" to cause injury to another, an element
present only in intentional felonies. In culpable felonies or criminal negligence, the injury inflicted on
another is unintentional, the wrong done being simply the result of an act performed without malice
or criminal design. Here, a person performs an initial lawful deed; however, due to negligence,
126 

imprudence, lack of foresight, or lack of skill, the deed results in a wrongful act. Verily, a deliberate 127 

intent to do an unlawful act, which is a requisite in conspiracy, is inconsistent with the idea of a
felony committed by means of culpa. 128

The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing
the commission of the intentional felony of homicide. Being mala in se, the felony of homicide 129 

requires the existence of malice or dolo immediately before or simultaneously with the infliction of
130 

injuries. Intent to kill – or animus interficendi – cannot and should not be inferred, unless there is
131 

proof beyond reasonable doubt of such intent. Furthermore, the victim’s death must not have been
132 

the product of accident, natural cause, or suicide. If death resulted from an act executed without
133 

malice or criminal intent – but with lack of foresight, carelessness, or negligence – the act must be
qualified as reckless or simple negligence or imprudence resulting in homicide. 134

Hazing and other forms of initiation rites

The notion of hazing is not a recent development in our society. It is said that, throughout history, 135 

hazing in some form or another has been associated with organizations ranging from military groups
to indigenous tribes. Some say that elements of hazing can be traced back to the Middle Ages,
136 

during which new students who enrolled in European universities worked as servants for
upperclassmen. It is believed that the concept of hazing is rooted in ancient Greece, where young
137  138 

men recruited into the military were tested with pain or challenged to demonstrate the limits of their
loyalty and to prepare the recruits for battle. Modern fraternities and sororities espouse some
139 

connection to these values of ancient Greek civilization. According to a scholar, this concept lends 140 

historical legitimacy to a "tradition" or "ritual" whereby prospective members are asked to prove their
worthiness and loyalty to the organization in which they seek to attain membership through hazing. 141

Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join an
organization to receive an invitation in order to be a neophyte for a particular chapter. The neophyte 142 

period is usually one to two semesters long. During the "program," neophytes are required to
143 

interview and to get to know the active members of the chapter; to learn chapter history; to
understand the principles of the organization; to maintain a specified grade point average; to
participate in the organization’s activities; and to show dignity and respect for their fellow neophytes,
the organization, and its active and alumni members. Some chapters require the initiation activities
144 

for a recruit to involve hazing acts during the entire neophyte stage. 145

Hazing, as commonly understood, involves an initiation rite or ritual that serves as prerequisite for
admission to an organization. In hazing, the "recruit," "pledge," "neophyte," "initiate," "applicant" –
146 

or any other term by which the organization may refer to such a person – is generally placed in
embarrassing or humiliating situations, like being forced to do menial, silly, foolish, or other similar
tasks or activities. It encompasses different forms of conduct that humiliate, degrade, abuse, or
147 

physically endanger those who desire membership in the organization. These acts usually involve 148 

physical or psychological suffering or injury. 149

The concept of initiation rites in the country is nothing new. In fact, more than a century ago, our
national hero – Andres Bonifacio – organized a secret society named Kataastaasan
Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable
Association of the Sons and Daughters of the Nation). The Katipunan, or KKK, started as a small
150 

confraternity believed to be inspired by European Freemasonry, as well as by confraternities or

sodalities approved by the Catholic Church. The Katipunan’s ideology was brought home to each
151 

member through the society’s initiation ritual. It is said that initiates were brought to a dark room, lit
152 

by a single point of illumination, and were asked a series of questions to determine their
fitness, loyalty, courage, and resolve. They were made to go through vigorous trials such as
153 

"pagsuot sa isang lungga" or "[pagtalon] sa balon." It would seem that they were also made
154 

to withstand the blow of "pangherong bakal sa pisngi" and to endure a "matalas na

punyal." As a final step in the ritual, the neophyte Katipunero was made to sign membership
155 

papers with the his own blood. 156

It is believed that the Greek fraternity system was transported by the Americans to the Philippines in
the late 19th century. As can be seen in the following instances, the manner of hazing in the United
States was jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa.

Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do exhausting
physical exercises that sometimes resulted in permanent physical damage; to eat or drink
unpalatable foods; and in various ways to humiliate themselves. In 1901, General Douglas 157 

MacArthur got involved in a congressional investigation of hazing at the academy during his second
year at West Point. 158

In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured during the
shriner’s hazing event, which was part of the initiation ceremonies for Hejaz membership. The ritual 159 

involved what was known as the "mattress-rotating barrel trick." It required each candidate to slide160 

down an eight to nine-foot-high metal board onto connected mattresses leading to a barrel, over
which the candidate was required to climb. Members of Hejaz would stand on each side of the
161 

mattresses and barrel and fun-paddle candidates en route to the barrel. 162

In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina, were
seen performing a ceremony in which they pinned paratrooper jump wings directly onto the neophyte
paratroopers’ chests. The victims were shown writhing and crying out in pain as others pounded the
163 

spiked medals through the shirts and into the chests of the victims. 164

In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa Alpha
Psi invited male students to enter into a pledgeship program. The fraternity members subjected the
165 

pledges to repeated physical abuse including repeated, open-hand strikes at the nape, the chest,
and the back; caning of the bare soles of the feet and buttocks; blows to the back with the use of a
heavy book and a cookie sheet while the pledges were on their hands and knees; various kicks and
punches to the body; and "body slamming," an activity in which active members of the fraternity lifted
pledges up in the air and dropped them to the ground. The fraternity members then put the pledges
166 

through a seven-station circle of physical abuse. 167

In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity members of
the Kappa Alpha Order at the Auburn University in Alabama. The hazing included the following: (1)
168 

having to dig a ditch and jump into it after it had been filled with water, urine, feces, dinner leftovers,
and vomit; (2) receiving paddlings on the buttocks; (3) being pushed and kicked, often onto walls or
into pits and trash cans; (4) eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of
hot sauce, mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its
members, such as cleaning the fraternity house and yard, being designated as driver, and running
errands; (6) appearing regularly at 2 a.m. "meetings," during which the pledges would be hazed for a
couple of hours; and (7) "running the gauntlet," during which the pledges were pushed, kicked, and
hit as they ran down a hallway and descended down a flight of stairs. 169

In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim – Sylvester Lloyd – was accepted
to pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity. He participated in 170 

initiation activities, which included various forms of physical beatings and torture, psychological
coercion and embarrassment. 171

In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries from
hazing activities during the fraternity’s initiation rites. Kenner and the other initiates went through
172 

psychological and physical hazing, including being paddled on the buttocks for more than 200
times.173

In Morton v. State, Marcus Jones – a university student in Florida – sought initiation into the campus
chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year. The pledge’s efforts 174 

to join the fraternity culminated in a series of initiation rituals conducted in four nights. Jones,
together with other candidates, was blindfolded, verbally harassed, and caned on his face and
buttocks. In these rituals described as "preliminaries," which lasted for two evenings, he received
175 

approximately 60 canings on his buttocks. During the last two days of the hazing, the rituals
176 

intensified. The pledges sustained roughly 210 cane strikes during the four-night initiation. Jones
177  178 

and several other candidates passed out. 179

The purported raison d’être behind hazing practices is the proverbial "birth by fire," through which
the pledge who has successfully withstood the hazing proves his or her worth. Some organizations 180 

even believe that hazing is the path to enlightenment. It is said that this process enables the
organization to establish unity among the pledges and, hence, reinforces and ensures the future of
the organization. Alleged benefits of joining include leadership opportunities; improved academic
181 

performance; higher self-esteem; professional networking opportunities; and the esprit d’corp
associated with close, almost filial, friendship and common cause. 182

Anti-Hazing laws in the U.S.

The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military. The 183 

hazing of recruits and plebes in the armed services was so prevalent that Congress prohibited all
forms of military hazing, harmful or not. It was not until 1901 that Illinois passed the first state anti-
184 

hazing law, criminalizing conduct "whereby any one sustains an injury to his [or her] person
therefrom." 185

However, it was not until the 1980s and 1990s, due in large part to the efforts of the Committee to
Halt Useless College Killings and other similar organizations, that states increasingly began to enact
legislation prohibiting and/or criminalizing hazing. As of 2008, all but six states had enacted criminal
186 

or civil statutes proscribing hazing. Most anti-hazing laws in the U.S. treat hazing as a
187 

misdemeanor and carry relatively light consequences for even the most severe situations. Only a 188 

few states with anti-hazing laws consider hazing as a felony in case death or great bodily harm
occurs. 189

Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in death or
great bodily harm, which is a Class 4 felony. In a Class 4 felony, a sentence of imprisonment shall
190 

be for a term of not less than one year and not more than three years. Indiana criminal law provides 191 

that a person who recklessly, knowingly, or intentionally performs hazing that results in serious
bodily injury to a person commits criminal recklessness, a Class D felony. 192

The offense becomes a Class C felony if committed by means of a deadly weapon. As an element 193 

of a Class C felony – criminal recklessness – resulting in serious bodily injury, death falls under the
category of "serious bodily injury." A person who commits a Class C felony is imprisoned for a fixed
194 

term of between two (2) and eight (8) years, with the advisory sentence being four (4)
years. Pursuant to Missouri law, hazing is a Class A misdemeanor, unless the act creates a
195 

substantial risk to the life of the student or prospective member, in which case it becomes a Class C
felony. A Class C felony provides for an imprisonment term not to exceed seven years.
196  197

In Texas, hazing that causes the death of another is a state jail felony. An individual adjudged guilty 198 

of a state jail felony is punished by confinement in a state jail for any term of not more than two years
or not less than 180 days. Under Utah law, if hazing results in serious bodily injury, the hazer is
199 

guilty of a third-degree felony. A person who has been convicted of a third-degree felony may be
200 

sentenced to imprisonment for a term not to exceed five years. West Virginia law provides that if the
201 

act of hazing would otherwise be deemed a felony, the hazer may be found guilty thereof and
subject to penalties provided therefor. In Wisconsin, a person is guilty of a Class G felony if hazing
202 

results in the death of another. A Class G felony carries a fine not to exceed $25,000 or
203 

imprisonment not to exceed 10 years, or both. 204

In certain states in the U.S., victims of hazing were left with limited remedies, as there was no hazing
statute. This situation was exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry
205 

Ballou’s family resorted to a civil action for wrongful death, since there was no anti-hazing statute in
South Carolina until 1994. 206

The existence of animus interficendi or intent to kill not proven beyond reasonable doubt

The presence of an ex ante situation – in this case, fraternity initiation rites – does not automatically
amount to the absence of malicious intent or dolus malus. If it is proven beyond reasonable doubt
that the perpetrators were equipped with a guilty mind – whether or not there is a contextual
background or factual premise – they are still criminally liable for intentional felony.

The trial court, the CA, and the Solicitor General are all in agreement that – with the exception of
Villareal and Dizon – accused Tecson, Ama, Almeda, and Bantug did not have the animus
interficendi or intent to kill Lenny Villa or the other neophytes. We shall no longer disturb this finding.
As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that the two
accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict physical injuries
on him. It justified its finding of homicide against Dizon by holding that he had apparently been
motivated by ill will while beating up Villa. Dizon kept repeating that his father’s parking space had
been stolen by the victim’s father. As to Villareal, the court said that the accused suspected the
207 

family of Bienvenido Marquez, one of the neophytes, to have had a hand in the death of Villareal’s
brother. The CA then ruled as follows:
208 

The two had their own axes to grind against Villa and Marquez. It was very clear that they acted with
evil and criminal intent. The evidence on this matter is unrebutted and so for the death of Villa,
appellants Dizon and Villareal must and should face the consequence of their acts, that is, to be held
liable for the crime of homicide. (Emphasis supplied)
209 

We cannot subscribe to this conclusion.

The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the
existence of animus interficendi. For a full appreciation of the context in which the supposed
utterances were made, the Court deems it necessary to reproduce the relevant portions of witness
Marquez’s testimony:

Witness We were brought up into [Michael Musngi’s] room and we were briefed as to what to expect
during the next three days and we were told the members of the fraternity and their batch and we
were also told about the fraternity song, sir.

x x x           x x x          x x x

Witness We were escorted out of [Michael Musngi’s] house and we were made to ride a van and we
were brought to another place in Kalookan City which I later found to be the place of Mariano
Almeda, sir.

x x x           x x x          x x x

Witness Upon arrival, we were instructed to bow our head down and to link our arms and then the
driver of the van and other members of the Aquilans who were inside left us inside the van, sir.

x x x           x x x          x x x

Witness We heard voices shouted outside the van to the effect, "Villa akin ka," "Asuncion Patay ka"
and the people outside pound the van, rock the van, sir.

Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks
uttered upon your arrival?

Witness Some were almost shouting, you could feel the sense of excitement in their voices, sir.

x x x           x x x          x x x

Atty. Tadiar During all these times that the van was being rocked through and through, what were
the voices or utterances that you heard?

Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin," etc., sir.

Atty. Tadiar And those utterances and threats, how long did they continue during the rocking of the
van which lasted for 5 minutes?

x x x           x x x          x x x

Witness Even after they rocked the van, we still kept on hearing voices, sir.

x x x           x x x          x x x

Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was there any
utterances by anybody?

Witness Yes sir. Some were piercing, some were discouraging, and some were encouraging others
who were pounding and beating us, it was just like a fiesta atmosphere, actually some of them
enjoyed looking us being pounded, sir.
Atty. Tadiar Do you recall what were those voices that you heard?

Witness One particular utterance always said was, they asked us whether "matigas pa yan, kayang-
kaya pa niyan."

Atty. Tadiar Do you know who in particular uttered those particular words that you quote?

Witness I cannot particularly point to because there were utterances simultaneously, I could not
really pin point who uttered those words, sir.

x x x           x x x          x x x

Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol Express?

Witness Yes, sir I heard utterances.

Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you
remember?

Witness For example, one person particularly Boyet Dizon stepped on my thigh, he would say that
and I quote "ito, yung pamilya nito ay pinapatay yung kapatid ko," so that would in turn sort of
justifying him in inflicting more serious pain on me. So instead of just walking, he would jump on my
thighs and then after on was Lenny Villa. He was saying to the effect that "this guy, his father stole
the parking space of my father," sir. So, that’s why he inflicted more pain on Villa and that went on,
sir.

Atty. Tadiar And you were referring to which particular accused?

Witness Boyet Dizon, sir.

Atty. Tadiar When Boyet Dizon at that particular time was accusing you of having your family have
his brother killed, what was your response?

Witness Of course, I knew sir that it was not true and that he was just making it up sir. So he said
that I knew nothing of that incident. However, he just in fact after the Bicol Express, he kept on
uttering those words/statements so that it would in turn justify him and to give me harder blows, sir.

x x x           x x x          x x x

Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villa’s father stole the
parking space allotted for his father, do you recall who were within hearing distance when that
utterance was made?

Witness Yes, sir. All of the neophytes heard that utterance, sir.

x x x           x x x          x x x

Witness There were different times made this accusation so there were different people who heard
from time to time, sir.

x x x           x x x          x x x

Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny Villa’s
father was made?

Witness When we were line up against the wall, Boyet Dizon came near to us and when Lenny
Villa’s turn, I heard him uttered those statements, sir.

Atty. Tadiar What happened after he made this accusation to Lenny Villa’s father?

Witness He continued to inflict blows on Lenny Villa.

Atty. Tadiar How were those blows inflicted?

Witness There were slaps and he knelt on Lenny Villa’s thighs and sometime he stand up and he
kicked his thighs and sometimes jumped at it, sir.
 x x x           x x x          x x x

Atty. Tadiar We would go on to the second day but not right now. You mentioned also that
accusations made by Dizon "you or your family had his brother killed," can you inform this Honorable
Court what exactly were the accusations that were charged against you while inflicting blows upon
you in particular?

Witness While he was inflicting blows upon me, he told me in particular if I knew that his family who
had his brother killed, and he said that his brother was an NPA, sir so I knew that it was just a story
that he made up and I said that I knew nothing about it and he continued inflicting blows on me, sir.
And another incident was when a talk was being given, Dizon was on another part of the pelota court
and I was sort of looking and we saw that he was drinking beer, and he said and I quote: "Marquez,
Marquez, ano ang tinitingin-tingin mo diyan, ikaw yung pamilya mo ang nagpapatay sa aking
kapatid, yari ka sa akin," sir.

Atty. Tadiar What else?

Witness That’s all, sir.

Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came around
as promised to you earlier?

Witness No, sir. (Emphasis supplied)

210 

On cross-examination, witness Bienvenido Marquez testified thus:

Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that there
was a briefing that was conducted immediately before your initiation as regards to what to expect
during the initiation, did I hear you right?

Witness Yes, sir.

Judge Purisima Who did the briefing?

Witness Mr. Michael Musngi, sir and Nelson Victorino.

Judge Purisima Will you kindly tell the Honorable Court what they told you to expect during the
initiation?

Witness They told us at the time we would be brought to a particular place, we would be mocked at,
sir.

Judge Purisima So, you expected to be mocked at, ridiculed, humiliated etc., and the likes?

Witness Yes, sir.

Judge Purisima You were also told beforehand that there would be physical contact?

Witness Yes, sir at the briefing.

x x x           x x x          x x x

Witness Yes, sir, because they informed that we could immediately go back to school. All the bruises
would be limited to our arms and legs, sir. So, if we wear the regular school uniforms like long
sleeves, it would be covered actually so we have no thinking that our face would be slapped, sir.

Judge Purisima So, you mean to say that beforehand that you would have bruises on your body but
that will be covered?

Witness Yes, sir.

JudgePurisima So, what kind of physical contact or implements that you expect that would create
bruises to your body?

Witness At that point I am already sure that there would be hitting by a paddling or paddle, sir.

x x x           x x x          x x x
Judge Purisima Now, will you admit Mr. Marquez that much of the initiation procedures is
psychological in nature?

Witness Combination, sir. (Emphasis supplied)

211 

x x x           x x x          x x x

Atty. Jimenez The initiation that was conducted did not consist only of physical initiation, meaning
body contact, is that correct?

Witness Yes, sir.

Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct?

Witness Yes, sir.

Atty. Jimenez And this consisted of making you believe of things calculated to terrify you, scare you,
correct?

Witness Yes, sir.

Atty. Jimenez In other words, the initiating masters made belief situation intended to, I repeat, terrify
you, frighten you, scare you into perhaps quitting the initiation, is this correct?

Witness Sometimes sir, yes.

Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was supposed
to have said according to you that your family were responsible for the killing of his brother who was
an NPA, do you remember saying that?

Witness Yes, sir.

Atty. Jimenez You also said in connection with that statement said to you by Dizon that you did not
believe him because that is not true, correct?

Witness Yes, sir.

Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I have
mentioned before, terrifying you, scaring you or frightening you into quitting the initiation, this is
correct?

Witness No, sir, perhaps it is one but the main reason, I think, why he was saying those things was
because he wanted to inflict injury.

Atty. Jimenez He did not tell that to you. That is your only perception, correct?

Witness No, sir, because at one point, while he was telling this to Villareal, he was hitting me.

Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of initiation by
all the initiating masters? You said that earlier, right?

Witness Yes, sir.

Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said something
similar as was told to you by Mr. Dizon?

Witness No, sir.

Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would run on
your thighs, right?

Witness Yes, sir.

Atty. Jimenez This was the regular procedure that was followed by the initiating masters not only on
you but also on the other neophytes?

Witness Yes, sir.

Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was administered by
one master, was also administered by one master on a neophyte, was also administered by another
master on the other neophyte, this is correct?

Witness Yes, sir. (Emphasis supplied)

212 

According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and Villareal
were "baseless," since the statements of the accused were "just part of the psychological initiation
213 

calculated to instill fear on the part of the neophytes"; that "[t]here is no element of truth in it as
testified by Bienvenido Marquez"; and that the "harsh words uttered by Petitioner and Villareal are
part of ‘tradition’ concurred and accepted by all the fraternity members during their initiation rites."214

We agree with the Solicitor General.

The foregoing testimony of witness Marquez reveals a glaring mistake of substantial proportion on
the part of the CA – it mistook the utterances of Dizon for those of Villareal. Such inaccuracy cannot
be tolerated, especially because it was the CA’s primary basis for finding that Villarreal had the intent
to kill Lenny Villa, thereby making Villareal guilty of the intentional felony of homicide. To repeat,
according to Bienvenido Marquez’s testimony, as reproduced above, it was Dizon who uttered both
"accusations" against Villa and Marquez; Villareal had no participation whatsoever in the specific
threats referred to by the CA. It was "Boyet Dizon [who] stepped on [Marquez’s] thigh"; and who told
witness Marquez, "[I]to, yung pamilya nito ay pinapatay yung kapatid ko." It was also Dizon who
jumped on Villa’s thighs while saying, "[T]his guy, his father stole the parking space of my father."
With the testimony clarified, we find that the CA had no basis for concluding the existence of intent to
kill based solely thereon.

As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual milieu
and contextual premise of the incident to fully appreciate and understand the testimony of witness
Marquez. At the outset, the neophytes were briefed that they would be subjected to psychological
pressure in order to scare them. They knew that they would be mocked, ridiculed, and intimidated.
They heard fraternity members shout, "Patay ka, Recinto," "Yari ka, Recinto," "Villa, akin ka,"
"Asuncion, gulpi ka," "Putang ina mo, Asuncion," "Putang ina nyo, patay kayo sa amin," or some
other words to that effect. While beating the neophytes, Dizon accused Marquez of the death of the
215 

former’s purported NPA brother, and then blamed Lenny Villa’s father for stealing the parking space
of Dizon’s father. According to the Solicitor General, these statements, including those of the
accused Dizon, were all part of the psychological initiation employed by the Aquila Fraternity. 216

Thus, to our understanding, accused Dizon’s way of inflicting psychological pressure was through
hurling make-believe accusations at the initiates. He concocted the fictitious stories, so that he could
"justify" giving the neophytes harder blows, all in the context of fraternity initiation and role playing.
Even one of the neophytes admitted that the accusations were untrue and made-up.

The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during the
Senate deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke as follows:

Senator Lina. -- so as to capture the intent that we conveyed during the period of interpellations on
why we included the phrase "or psychological pain and suffering."

x x x           x x x          x x x

So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit or
neophyte is made to undergo certain acts which I already described yesterday, like playing the
Russian roulette extensively to test the readiness and the willingness of the neophyte or recruit to
continue his desire to be a member of the fraternity, sorority or similar organization or playing and
putting a noose on the neck of the neophyte or recruit, making the recruit or neophyte stand on the
ledge of the fourth floor of the building facing outside, asking him to jump outside after making him
turn around several times but the reality is that he will be made to jump towards the inside portion of
the building – these are the mental or psychological tests that are resorted to by these organizations,
sororities or fraternities. The doctors who appeared during the public hearing testified that such acts
can result in some mental aberration, that they can even lead to psychosis, neurosis or insanity. This
is what we want to prevent. (Emphasis supplied)
217 

Thus, without proof beyond reasonable doubt, Dizon’s behavior must not be automatically viewed as
evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken within the context
of the fraternity’s psychological initiation. This Court points out that it was not even established
whether the fathers of Dizon and Villa really had any familiarity with each other as would lend
credence to the veracity of Dizon’s threats. The testimony of Lenny’s co-neophyte, Marquez, only
confirmed this view. According to Marquez, he "knew it was not true and that [Dizon] was just
making it up…." Even the trial court did not give weight to the utterances of Dizon as constituting
218 
intent to kill: "[T]he cumulative acts of all the accused were not directed toward killing Villa, but
merely to inflict physical harm as part of the fraternity initiation rites x x x." The Solicitor General
219 

shares the same view.

Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article 249 of
the Revised Penal Code on the basis of the existence of intent to kill. Animus interficendi cannot and
should not be inferred unless there is proof beyond reasonable doubt of such intent. Instead, we
220 

adopt and reinstate the finding of the trial court in part, insofar as it ruled that none of the fraternity
members had the specific intent to kill Lenny Villa. 221

The existence of animus iniuriandi or malicious intent to injure not proven beyond reasonable doubt

The Solicitor General argues, instead, that there was an intent to inflict physical injuries on Lenny
Villa. Echoing the Decision of the trial court, the Solicitor General then posits that since all of the
accused fraternity members conspired to inflict physical injuries on Lenny Villa and death ensued, all
of them should be liable for the crime of homicide pursuant to Article 4(1) of the Revised Penal
Code.

In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal
Code, the employment of physical injuries must be coupled with dolus malus. As an act that is mala
222 

in se, the existence of malicious intent is fundamental, since injury arises from the mental state of
the wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused
cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the Revised
Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the
physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain
bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt
act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in
an intentional felony. The commission of the act does not, in itself, make a man guilty unless his
intentions are. 223

Thus, we have ruled in a number of instances that the mere infliction of physical injuries, absent
224 

malicious intent, does not make a person automatically liable for an intentional felony. In Bagajo v.
People, the accused teacher, using a bamboo stick, whipped one of her students behind her legs
225 

and thighs as a form of discipline. The student suffered lesions and bruises from the corporal
punishment. In reversing the trial court’s finding of criminal liability for slight physical injuries, this
Court stated thus: "Independently of any civil or administrative responsibility … [w]e are persuaded
that she did not do what she had done with criminal intent … the means she actually used was
moderate and that she was not motivated by ill-will, hatred or any malevolent intent." Considering the
applicable laws, we then ruled that "as a matter of law, petitioner did not incur any criminal liability for
her act of whipping her pupil." In People v. Carmen, the accused members of the religious group
226 

known as the Missionaries of Our Lady of Fatima – under the guise of a "ritual or treatment" –
plunged the head of the victim into a barrel of water, banged his head against a bench, pounded his
chest with fists, and stabbed him on the side with a kitchen knife, in order to cure him of "nervous
breakdown" by expelling through those means the bad spirits possessing him. The collective acts of
the group caused the death of the victim. Since malicious intent was not proven, we reversed the
trial court’s finding of liability for murder under Article 4 of the Revised Penal Code and instead ruled
that the accused should be held criminally liable for reckless imprudence resulting in homicide under
Article 365 thereof.

Indeed, the threshold question is whether the accused’s initial acts of inflicting physical pain on the
neophytes were attended by animus iniuriandi amounting to a felonious act punishable under the
Revised Penal Code, thereby making it subject to Article 4(1) thereof. In People v. Regato, we ruled
that malicious intent must be judged by the action, conduct, and external acts of the accused. What 227 

persons do is the best index of their intention. We have also ruled that the method employed, the
228 

kind of weapon used, and the parts of the body on which the injury was inflicted may be
determinative of the intent of the perpetrator. The Court shall thus examine the whole contextual
229 

background surrounding the death of Lenny Villa.

Lenny died during Aquila’s fraternity initiation rites. The night before the commencement of the rites,
they were briefed on what to expect. They were told that there would be physical beatings, that the
whole event would last for three days, and that they could quit anytime. On their first night, they were
subjected to "traditional" initiation rites, including the "Indian Run," "Bicol Express," "Rounds," and
the "Auxies’ Privilege Round." The beatings were predominantly directed at the neophytes’ arms and
legs.

In the morning of their second day of initiation, they were made to present comic plays and to play
rough basketball. They were also required to memorize and recite the Aquila Fraternity’s principles.
Late in the afternoon, they were once again subjected to "traditional" initiation rituals. When the
rituals were officially reopened on the insistence of Dizon and Villareal, the neophytes were
subjected to another "traditional" ritual – paddling by the fraternity.
During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected
the neophytes by functioning as human barriers and shielding them from those who were designated
to inflict physical and psychological pain on the initiates. It was their regular duty to stop foul or
230 

excessive physical blows; to help the neophytes to "pump" their legs in order that their blood would
circulate; to facilitate a rest interval after every physical activity or "round"; to serve food and water;
to tell jokes; to coach the initiates; and to give them whatever they needed.

These rituals were performed with Lenny’s consent. A few days before the "rites," he asked both his
231 

parents for permission to join the Aquila Fraternity. His father knew that Lenny would go through an
232 

initiation process and would be gone for three days. The CA found as follows:
233 

It is worth pointing out that the neophytes willingly and voluntarily consented to undergo physical
initiation and hazing. As can be gleaned from the narration of facts, they voluntarily agreed to join
the initiation rites to become members of the Aquila Legis Fraternity. Prior to the initiation, they were
given briefings on what to expect. It is of common knowledge that before admission in a fraternity,
the neophytes will undergo a rite of passage. Thus, they were made aware that traditional methods
such as mocking, psychological tests and physical punishment would take place. They knew that the
initiation would involve beatings and other forms of hazing. They were also told of their right and
opportunity to quit at any time they wanted to. In fact, prosecution witness Navera testified that
accused Tecson told him that "after a week, you can already play basketball." Prosecution witness
Marquez for his part, admitted that he knew that the initiates would be hit "in the arms and legs," that
a wooden paddle would be used to hit them and that he expected bruises on his arms and legs….
Indeed, there can be no fraternity initiation without consenting neophytes. (Emphasis supplied)
234 

Even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his
participation and finished the second day of initiation.

Based on the foregoing contextual background, and absent further proof showing clear malicious
intent, we are constrained to rule that the specific animus iniuriandi was not present in this case.
Even if the specific acts of punching, kicking, paddling, and other modes of inflicting physical pain
were done voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and
intelligence in the felony of physical injuries, the fundamental ingredient of criminal intent was not
proven beyond reasonable doubt. On the contrary, all that was proven was that the acts were done
pursuant to tradition. Although the additional "rounds" on the second night were held upon the
insistence of Villareal and Dizon, the initiations were officially reopened with the consent of the head
of the initiation rites; and the accused fraternity members still participated in the rituals, including the
paddling, which were performed pursuant to tradition. Other than the paddle, no other "weapon" was
used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and the arms.
The designation of roles, including the role of auxiliaries, which were assigned for the specific
purpose of lending assistance to and taking care of the neophytes during the initiation rites, further
belied the presence of malicious intent. All those who wished to join the fraternity went through the
same process of "traditional" initiation; there is no proof that Lenny Villa was specifically targeted or
given a different treatment. We stress that Congress itself recognized that hazing is uniquely
different from common crimes. The totality of the circumstances must therefore be taken into
235 

consideration.

The underlying context and motive in which the infliction of physical injuries was rooted may also be
determined by Lenny’s continued participation in the initiation and consent to the method used even
after the first day. The following discussion of the framers of the 1995 Anti-Hazing Law is
enlightening:

Senator Guingona. Most of these acts, if not all, are already punished under the Revised Penal
Code.

Senator Lina. That is correct, Mr. President.

Senator Guingona. If hazing is done at present and it results in death, the charge would be murder
or homicide.

Senator Lina. That is correct, Mr. President.

Senator Guingona. If it does not result in death, it may be frustrated homicide or serious physical
injuries.

Senator Lina. That is correct, Mr. President.

Senator Guingona. Or, if the person who commits sexual abuse does so it can be penalized under
rape or acts of lasciviousness.
Senator Lina. That is correct, Mr. President.

Senator Guingona. So, what is the rationale for making a new offense under this definition of the
crime of hazing?

Senator Lina. To discourage persons or group of persons either composing a sorority, fraternity or
any association from making this requirement of initiation that has already resulted in these specific
acts or results, Mr. President.

That is the main rationale. We want to send a strong signal across the land that no group or
association can require the act of physical initiation before a person can become a member without
being held criminally liable.

x x x           x x x          x x x

Senator Guingona. Yes, but what would be the rationale for that imposition? Because the
distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking the
punishment of an initiation into a club or organization, he is seeking the punishment of certain acts
that resulted in death, et cetera as a result of hazing which are already covered crimes.

The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it
may be a legitimate defense for invoking two or more charges or offenses, because these very same
acts are already punishable under the Revised Penal Code.

That is my difficulty, Mr. President.

Senator Lina. x x x

Another point, Mr. President, is this, and this is a very telling difference: When a person or group of
persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit
a wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr.
President, let us say there is death or there is homicide, mutilation, if one files a case, then the
intention to commit a wrong has to be proven. But if the crime of hazing is the basis, what is
important is the result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities;
that they should really shun this activity called "hazing." Because, initially, these fraternities or
sororities do not even consider having a neophyte killed or maimed or that acts of lasciviousness are
even committed initially, Mr. President.

So, what we want to discourage is the so-called initial innocent act. That is why there is need to
institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit.
Wala talaga silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero
dito sa anim o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong
neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay
na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong
gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."

x x x           x x x          x x x

Senator Guingona. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am
again disturbed by his statement that the prosecution does not have to prove the intent that resulted
in the death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness
or deranged mind. We do not have to prove the willful intent of the accused in proving or establishing
the crime of hazing. This seems, to me, a novel situation where we create the special crime without
having to go into the intent, which is one of the basic elements of any crime.

If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense.
And even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to
have a new society or a new club is, per se, not punishable at all. What are punishable are the acts
that lead to the result. But if these results are not going to be proven by intent, but just because there
was hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr.
President.

Senator Lina. Mr. President, the act of hazing, precisely, is being criminalized because in the context
of what is happening in the sororities and fraternities, when they conduct hazing, no one will admit
that their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting physical
pain. Mr. President, it is a criminal act and we want it stopped, deterred, discouraged.
If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the
masters intended to maim. What is important is the result of the act of hazing. Otherwise, the
masters or those who inflict the physical pain can easily escape responsibility and say, "We did not
have the intention to kill. This is part of our initiation rites. This is normal. We do not have any
intention to kill or maim."

This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary
crime of homicide, mutilation, et cetera, where the prosecution will have a difficulty proving the
elements if they are separate offenses.

x x x           x x x          x x x

Senator Guingona. Mr. President, assuming there was a group that initiated and a person died. The
charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have to
prove conspiracy or not anymore?

Senator Lina. Mr. President, if the person is present during hazing x x x

Senator Guingona. The persons are present. First, would the prosecution have to prove conspiracy?
Second, would the prosecution have to prove intent to kill or not?

Senator Lina. No more. As to the second question, Mr. President, if that occurs, there is no need to
prove intent to kill.

Senator Guingona. But the charge is murder.

Senator Lina. That is why I said that it should not be murder. It should be hazing, Mr.
President.  (Emphasis supplied)
236 

During a discussion between Senator Biazon and Senator Lina on the issue of whether to include
sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further clarified thus:

Senator Biazon. Mr. President, this Representation has no objection to the inclusion of sodomy as
one of the conditions resulting from hazing as necessary to be punished. However, the act of
sodomy can be committed by two persons with or without consent.

To make it clearer, what is being punished here is the commission of sodomy forced into another
individual by another individual. I move, Mr. President, that sodomy be modified by the phrase
"without consent" for purposes of this section.

Senator Lina. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is only
going to aggravate the crime of hazing if it is done without consent will change a lot of concepts
here. Because the results from hazing aggravate the offense with or without consent. In fact, when a
person joins a fraternity, sorority, or any association for that matter, it can be with or without the
consent of the intended victim. The fact that a person joins a sorority or fraternity with his consent
does not negate the crime of hazing.

This is a proposed law intended to protect the citizens from the malpractices that attend initiation
which may have been announced with or without physical infliction of pain or injury, Mr. President.
Regardless of whether there is announcement that there will be physical hazing or whether there is
none, and therefore, the neophyte is duped into joining a fraternity is of no moment. What is
important is that there is an infliction of physical pain.

The bottom line of this law is that a citizen even has to be protected from himself if he joins a
fraternity, so that at a certain point in time, the State, the individual, or the parents of the victim can
run after the perpetrators of the crime, regardless of whether or not there was consent on the part of
the victim.

x x x           x x x          x x x

Senator Lina. Mr. President, I understand the position taken by the distinguished Gentleman from
Cavite and Metro Manila. It is correct that society sometimes adopts new mores, traditions, and
practices.

In this bill, we are not going to encroach into the private proclivities of some individuals when they do
their acts in private as we do not take a peek into the private rooms of couples. They can do their
thing if they want to make love in ways that are not considered acceptable by the mainstream of
society. That is not something that the State should prohibit.
But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be
entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent
of the neophyte. If the law is passed, that does not make the act of hazing not punishable because
the neophyte accepted the infliction of pain upon himself.

If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon
himself. He consented to it." So, if we allow that reasoning that sodomy was done with the consent
of the victim, then we would not have passed any law at all. There will be no significance if we pass
this bill, because it will always be a defense that the victim allowed the infliction of pain or suffering.
He accepted it as part of the initiation rites.

But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of
consent will not apply because the very act of inflicting physical pain or psychological suffering is, by
itself, a punishable act. The result of the act of hazing, like death or physical injuries merely
aggravates the act with higher penalties. But the defense of consent is not going to nullify the
criminal nature of the act.

So, if we accept the amendment that sodomy can only aggravate the offense if it is committed
without consent of the victim, then the whole foundation of this proposed law will collapse.

Senator Biazon. Thank you, Mr. President.

Senator Lina. Thank you very much.

The President. Is there any objection to the committee amendment? (Silence.) The Chair hears
none; the same is approved. 237

(Emphasis supplied)

Realizing the implication of removing the state’s burden to prove intent, Senator Lina, the principal
author of the Senate Bill, said:

I am very happy that the distinguished Minority Leader brought out the idea of intent or whether
there it is mala in se or mala prohibita. There can be a radical amendment if that is the point that he
wants to go to.

If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not
include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that
suggestion, Mr. President. (Emphasis supplied)
238 

Thus, having in mind the potential conflict between the proposed law and the core principle of mala
in se adhered to under the Revised Penal Code, Congress did not simply enact an amendment
thereto. Instead, it created a special law on hazing, founded upon the principle of mala prohibita.
This dilemma faced by Congress is further proof of how the nature of hazing – unique as against
typical crimes – cast a cloud of doubt on whether society considered the act as an inherently wrong
conduct or mala in se at the time. It is safe to presume that Lenny’s parents would not have
consented to his participation in Aquila Fraternity’s initiation rites if the practice of hazing were
239 

considered by them as mala in se.

Furthermore, in Vedaña v. Valencia (1998), we noted through Associate Justice (now retired Chief
Justice) Hilario Davide that "in our nation’s very recent history, the people have spoken, through
Congress, to deem conduct constitutive of … hazing, [an] act[] previously considered harmless by
custom, as criminal." Although it may be regarded as a simple obiter dictum, the statement
240 

nonetheless shows recognition that hazing – or the conduct of initiation rites through physical and/or
psychological suffering – has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law,
there was to some extent a lacuna in the law; hazing was not clearly considered an intentional
felony. And when there is doubt on the interpretation of criminal laws, all must be resolved in favor of
the accused. In dubio pro reo.

For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the trial
court’s finding of malicious intent to inflict physical injuries on Lenny Villa, there being no proof
beyond reasonable doubt of the existence of malicious intent to inflict physical injuries or animus
iniuriandi as required in mala in se cases, considering the contextual background of his death, the
unique nature of hazing, and absent a law prohibiting hazing.

The accused fraternity members guilty of reckless imprudence resulting in homicide

The absence of malicious intent does not automatically mean, however, that the accused fraternity
members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies
that are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done without malice, from which an
immediate personal harm, injury or material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In this case, the danger is visible
241 

and consciously appreciated by the actor. In contrast, simple imprudence or negligence comprises
242 

an act done without grave fault, from which an injury or material damage ensues by reason of a
mere lack of foresight or skill. Here, the threatened harm is not immediate, and the danger is not
243 

openly visible.  244

The test for determining whether or not a person is negligent in doing an act is as follows: Would a
245 

prudent man in the position of the person to whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the course about to be pursued? If so, the law
imposes on the doer the duty to take precaution against the mischievous results of the act. Failure to
do so constitutes negligence. 246

As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of
precaution and diligence required varies with the degree of the danger involved. If, on account of a 247 

certain line of conduct, the danger of causing harm to another person is great, the individual who
chooses to follow that particular course of conduct is bound to be very careful, in order to prevent or
avoid damage or injury. In contrast, if the danger is minor, not much care is required. It is thus
248  249 

possible that there are countless degrees of precaution or diligence that may be required of an
individual, "from a transitory glance of care to the most vigilant effort." The duty of the person to 250 

employ more or less degree of care will depend upon the circumstances of each particular case. 251

There was patent recklessness in the hazing of Lenny Villa.

According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple
traumatic injuries. The officer explained that cardiac failure refers to the failure of the heart to work
252 

as a pump and as part of the circulatory system due to the lack of blood. In the present case, the 253 

victim’s heart could no longer work as a pumping organ, because it was deprived of its requisite
blood and oxygen. The deprivation was due to the "channeling" of the blood supply from the entire
254 

circulatory system – including the heart, arteries, veins, venules, and capillaries – to the thigh, leg,
and arm areas of Lenny, thus causing the formation of multiple hematomas or blood clots. The 255 

multiple hematomas were wide, thick, and deep, indicating that these could have resulted mainly
256 

from injuries sustained by the victim from fist blows, knee blows, paddles, or the like. Repeated 257 

blows to those areas caused the blood to gradually ooze out of the capillaries until the circulating
blood became so markedly diminished as to produce death.  The officer also found that the brain,
258 

liver, kidney, pancreas, intestines, and all other organs seen in the abdominals, as well as the
thoracic organ in the lungs, were pale due to the lack of blood, which was redirected to the thighs
and forearms. It was concluded that there was nothing in the heart that would indicate that the
259 

victim suffered from a previous cardiac arrest or disease. 260

The multiple hematomas or bruises found in Lenny Villa’s arms and thighs, resulting from repeated
blows to those areas, caused the loss of blood from his vital organs and led to his eventual death.
These hematomas must be taken in the light of the hazing activities performed on him by the Aquila
Fraternity. According to the testimonies of the co-neophytes of Lenny, they were punched, kicked,
elbowed, kneed, stamped on; and hit with different objects on their arms, legs, and thighs. They 261 

were also "paddled" at the back of their thighs or legs; and slapped on their faces. They were
262  263 

made to play rough basketball. Witness Marquez testified on Lenny, saying: "[T]inamaan daw sya
264 

sa spine." The NBI medico-legal officer explained that the death of the victim was the cumulative
265 

effect of the multiple injuries suffered by the latter. The relevant portion of the testimony is as
266 

follows:

Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of
defense counsels that the injuries that you have enumerated on the body of the deceased Lenny
Villa previously marked as Exhibit "G-1" to "G-14" individually by themselves would not cause the
death of the victim. The question I am going to propound to you is what is the cumulative effect of all
of these injuries marked from Exhibit "G-1" to "G-14"?

Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair for us to
isolate such injuries here because we are talking of the whole body. At the same manner that as a
car would not run minus one (1) wheel. No, the more humane in human approach is to interpret all
those injuries in whole and not in part. 267

There is also evidence to show that some of the accused fraternity members were drinking during
the initiation rites. 268
Consequently, the collective acts of the fraternity members were tantamount to recklessness, which
made the resulting death of Lenny a culpable felony. It must be remembered that organizations owe
to their initiates a duty of care not to cause them injury in the process. With the foregoing facts, we
269 

rule that the accused are guilty of reckless imprudence resulting in homicide. Since the NBI medico-
legal officer found that the victim’s death was the cumulative effect of the injuries suffered, criminal
responsibility redounds to all those who directly participated in and contributed to the infliction of
physical injuries.

It appears from the aforementioned facts that the incident may have been prevented, or at least
mitigated, had the alumni of Aquila Fraternity – accused Dizon and Villareal – restrained themselves
from insisting on reopening the initiation rites. Although this point did not matter in the end, as
records would show that the other fraternity members participated in the reopened initiation rites –
having in mind the concept of "seniority" in fraternities – the implication of the presence of alumni
should be seen as a point of review in future legislation. We further note that some of the fraternity
members were intoxicated during Lenny’s initiation rites. In this light, the Court submits to Congress,
for legislative consideration, the amendment of the Anti-Hazing Law to include the fact of intoxication
and the presence of non-resident or alumni fraternity members during hazing as aggravating
circumstances that would increase the applicable penalties.

It is truly astonishing how men would wittingly – or unwittingly –impose the misery of hazing and
employ appalling rituals in the name of brotherhood. There must be a better way to establish
"kinship." A neophyte admitted that he joined the fraternity to have more friends and to avail himself
of the benefits it offered, such as tips during bar examinations. Another initiate did not give up,
270 

because he feared being looked down upon as a quitter, and because he felt he did not have a
choice. Thus, for Lenny Villa and the other neophytes, joining the Aquila Fraternity entailed a leap
271 

in the dark. By giving consent under the circumstances, they left their fates in the hands of the
fraternity members. Unfortunately, the hands to which lives were entrusted were barbaric as they
were reckless.

Our finding of criminal liability for the felony of reckless imprudence resulting in homicide shall cover
only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect
then, these five accused fraternity members would have all been convicted of the crime of hazing
punishable by reclusion perpetua (life imprisonment). Since there was no law prohibiting the act of
272 

hazing when Lenny died, we are constrained to rule according to existing laws at the time of his
death. The CA found that the prosecution failed to prove, beyond reasonable doubt, Victorino et al.’s
individual participation in the infliction of physical injuries upon Lenny Villa. As to accused Villareal,
273 

his criminal liability was totally extinguished by the fact of his death, pursuant to Article 89 of the
Revised Penal Code.

Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of the Anti-
Hazing Law to subsequent cases. Furthermore, the modification of criminal liability from slight
physical injuries to reckless imprudence resulting in homicide shall apply only with respect to
accused Almeda, Ama, Bantug, and Tecson.

The accused liable to pay damages

The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of ₱ 50,000 as civil
indemnity ex delicto and ₱ 1,000,000 as moral damages, to be jointly and severally paid by accused
Dizon and Villareal. It also awarded the amount of ₱ 30,000 as indemnity to be jointly and severally
paid by accused Almeda, Ama, Bantug, and Tecson. 1âwphi1

Civil indemnity ex delicto is automatically awarded for the sole fact of death of the victim. In
274 

accordance with prevailing jurisprudence, we sustain the CA’s award of indemnity in the amount of
275 

₱ 50,000.

The heirs of the victim are entitled to actual or compensatory damages, including expenses incurred
in connection with the death of the victim, so long as the claim is supported by tangible
documents. Though we are prepared to award actual damages, the Court is prevented from
276 

granting them, since the records are bereft of any evidence to show that actual expenses were
incurred or proven during trial. Furthermore, in the appeal, the Solicitor General does not interpose
any claim for actual damages. 277

The heirs of the deceased may recover moral damages for the grief suffered on account of the
victim’s death. This penalty is pursuant to Article 2206(3) of the Civil Code, which provides that the
278 

"spouse, legitimate and illegitimate descendants and the ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased." Thus, we hereby we
279 

affirm the CA’s award of moral damages in the amount of ₱ 1,000,000.

WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of
homicide is hereby MODIFIED and set aside IN PART. The appealed Judgment in G.R. No. 154954
– finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson
guilty of the crime of slight physical injuries – is also MODIFIED and set aside in part. Instead,
Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent
Tecson are found guilty beyond reasonable doubt of reckless imprudence resulting in homicide
defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code. They
are hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of
arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum. In addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa
civil indemnity ex delicto in the amount of ₱ 50,000, and moral damages in the amount of ₱
1,000,000, plus legal interest on all damages awarded at the rate of 12% from the date of the finality
of this Decision until satisfaction. Costs de oficio.
280 

The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby affirmed. The
appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise affirmed. Finally, pursuant to Article 89(1) of
the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case
against Artemio Villareal deemed closed and TERMINATED.

Let copies of this Decision be furnished to the Senate President and the Speaker of the House of
Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the
fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as
aggravating circumstances that would increase the applicable penalties.

SO ORDERED.

G.R. No. 104461             February 23, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO MENDOZA y REYES and JAIME REJALI y LINA, defendants-appellants.

DECISION

PANGANIBAN, J.:

The main question answered in this case is whether the accused should be convicted of highway
robbery with homicide punishable under Presidential Decree No. 532, or of robbery with homicide
under Article 294 of the Revised Penal Code.

Appellants Romeo Mendoza and Jaime Rejali were charged on June 17, 1991 before the Regional
Trial Court in Pasig, Metro Manila (Branch 156) of the crime of "ROBBERY HOLD-UP (sic) with
HOMICIDE (P.D. No. 532, Anti-Piracy and Anti-Highwat (sic) Robbery Law of 1974)"  in an
1 

Information which reads as follows:

That on or about the 29th day of May 1991, in the municipality of San Juan, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court the above-named accused,
armed with gun and knives, conspiring and confederating together with one alias Jack
whose true identity and present whereabouts is still unknown, and mutually helping and
aiding one another with intent to gain and by means of force, violence and intimidation, did
then and there wilfully, unlawfully and feloniously take, rob and divest one Glory Oropeo of
cash money amounting to P30.00, while the said victim was aboard a passenger jeep,
cruising along Aurora Blvd., San Juan, Metro Manila, which is a Philippine Highway, to the
damage and prejudice of the owner thereof, in the aforementioned amount of P30.00; that on
the occasion of said robbery (hold-up) and for the purpose of enabling them to take, rob and
carry away personal belongings of all passengers in pursuance of their criminal act said
accused, did then and there wilfully, unlawfully and feloniously attack, assault and employ
personal violence upon the passengers (sic) of said passenger jeep, one Ramilyn Zulueta by
then and there hitting her head with a gun and kicked (sic) her out of the passenger jeep
which caused her to fall in (sic) the pavement hitting her head on the ground, thereby
inflicting upon the latter mortal injuries which directly caused her death, while Ma. Grace
Zulueta, punching her face and hitting her head with a gun, as a result of which said Ma.
Grace Zulueta sustained physical injuries which required medical attendance for a period of
less than nine (9) days and incapacitated her from performing her customary labor for the
same period of time.

CONTRARY TO LAW.
The records show that both accused were assisted by their counsel de oficio, Atty. Fernando
Fernandez of the Public Attorney's Office (PAO), when they pleaded not guilty to the charge upon
arraignment on August 9, 1991.

Evidence for the Prosecution

The prosecution thereafter established that on May 29, 1991, at about 9:00 in the evening, 17-year-
old Ma. Grace Zulueta and her elder sister, Ma. Ramilyn, were on their way home from their
grandparents' house in Altura Ext., Sta. Mesa, Manila. They boarded a passenger jeepney bound for
Cubao via Aurora Blvd. The jeepney was fully loaded with the driver, his wife and two children on the
front seat and eight passengers on each of the two parallel back seats.  2

The Zulueta sisters were seated near the rear entrance of the jeepney  with accused Romeo
3 

Mendoza seated beside Grace.  It was through Mendoza that Grace handed over their fare to the
4 

driver as the jeepney passed by the SM complex.  Glory Oropeo (or Lory Europeo  ), who boarded
5  6 

the same jeepney near the Stop and Shop Supermarket, was seated behind the driver. Accused
Jaime Rejali was beside Glory while their companion named Jack, who has remained at large, was
seated across her.  7

When the jeepney reached the dark portion of Aurora Blvd. in San Juan, Metro Manila, near St.
Paul's College, just after the bridge and before Broadway Centrum, someone announced a hold-
up.  Both Mendoza and Rejali had guns while Jack was armed with a knife. It was Rejali who fired
8 

his gun.  Jack told the Zulueta sisters that they would "bring" the sisters along. As the accused
9 

appeared drunk, the sisters ignored them. However, a male passenger jumped off the jeepney and a
commotion ensued. Perplexed ("naguluhan") by this turn of events, the accused held Ramilyn who
started kicking, trying to extricate herself from their grasp. This prompted Mendoza to hit her on the
head with his gun. He boxed and kicked her, causing Ramilyn to fall out of the jeepney into the street
where she rolled.  10

Mendoza then held Grace by her right arm. As she struggled, Grace shouted, "bitawan mo ako,
bitawan mo ako," in an attempt to call the attention of the drivers of the other vehicles on the road.
One of the accused hit Grace on the head with a gun causing her to lose consciousness.  (She 11 

finally came to at the St. Luke's Hospital; she was confined there up to June 7, 1991.  ) While all this
12 

was happening, Rejali poked his gun at the other passengers.  13

From Glory, the accused were able to get the amount of P30.00. She handed it to the holdupper
seated in front of her. When the commotion took place, the driver slowed down the jeepney but the
holduppers told him to keep on moving. One of them ordered the driver to proceed to J. Ruiz St. and
make several turns until, when they reached Paterno, the culprits alighted and made their escape.  14

Ramon Zulueta, the father of Grace and Ramilyn, learned about the incident from his other daughter,
Joralyn, who was informed that Grace was at the St. Luke's Hospital. Grace, who was then a student
employed at the Pizza Hut for P3,000.00 a month, was confined in said hospital from May 30 to June
7, 1991 for head trauma; she had contusions and hematomas on the left temporal region and on the
right occipito-parietal and anterior temporal regions, and abrasions on the supra orbital area as well
as elbow.  Ramon Zulueta spent around P19,000.00 for Grace's hospitalization. 
15  16

Upon learning from Grace that Ramilyn had been with her, Ramon Zulueta surmised that she might
have been brought to the hospital nearer the place of the incident, the UERM hospital. When he got
there, he learned that Ramilyn, 21 years old and a computer management student, had already died
of severe, traumatic head injuries.  The Zulueta family spent around P15,000.00 for her interment. 
17  18

Two days after the incident, Ramon Zulueta was informed that the jeepney driver and his wife had
"surrendered" to the police station in San Juan. The following day, he went there but the driver was
not around. He gave a statement to the police.  19

By fluke of fate, it was Grace herself who brought about the apprehension of Mendoza. On the
morning of June 12, 1991, Grace saw Mendoza selling ice cream along Altura St. She noticed
Mendoza staring at her. When she stared back, Mendoza lowered his gaze and left immediately.
That same afternoon, she saw him again. Considering her poor eyesight, she was instructed by her
cousin to buy ice cream from Mendoza so that she could get near enough to be sure if he was
indeed one of the holduppers. When she approached and asked Mendoza, "Mama, kilala kita?", he
could not look her in the eyes and seemed confused. Certain now that he was one of the
holduppers, Grace announced to her brother and the other people present that Mendoza was one of
the holduppers. Mendoza tried to make a run for it, but the people gave chase and overtook him.  20

Mendoza was brought to the police station where he was identified by Grace in a line-up.  Rejali 21 

was apprehended that same night by police operatives. According to SPO1 Dalmacio Luces, Lucia
Salinas, the wife of Jeepney driver Virgilio Salinas, described one of the suspects to the NBI
cartographer who came out with a sketch of his face.  However, Luces failed to get a statement from
22 

Lucia. 23

Evidence for the Defense

Appellants interposed denial and alibi as defenses. Both of them admitted knowing each other as
they were working as ice cream vendors at the Ana Maria Ice Cream Factory in 1045 Balic-balic,
Sampaloc, Manila where they also lodged in rooms provided by their employer. Mendoza, 28 years
old, swore that on that fateful day, he sold ice cream from 8:30 a.m. to about 4:00 p.m. From the
factory, he went as far as V. Mapa St., passing under the bridge near the Stop and Shop
Supermarket. By 5:30 in the afternoon, he was back at the factory. He spent the night of May 29,
1991 in his living quarters at the factory taking care of his child as his wife was pregnant.  24

For his part, 27-year-old Rejali testified that he also sold ice cream on the date in question, from 7:30
a.m. to 4:00 p.m., along E. Tuazon St. near Balic-balic. He claimed that he had not gone to San
Juan as he did not even know where San Juan was, being new in the vicinity. Once back in the
factory, he prepared ice cream for sale the next day. Then he rested in his room.  25

Myrna Balderama, who also stayed in the living quarters within the same ice cream factory,
corroborated the testimonies of the two accused. According to her, she saw Mendoza enter the
compound in the afternoon of May 29, 1991. From outside her room, she could see Mendoza's
room; on the night in question, she saw him taking care of his child. As to Rejali, she knew that he
did not leave the premises that evening as she had a conversation with him up to 10:00 p.m. while
he was preparing ice cream.  26

On March 10, 1992, the trial court  rendered the Decision subject of this appeal. Its dispositive
27 

portion reads as follows:

WHEREFORE, premises considered, the Court finds both accused ROMEO MENDOZA y
REYES and JAIME REJALI y LINA guilty beyond reasonable doubt of the crime of Violation
of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) and
hereby sentences each of them to suffer the penalty of reclusion perpetua with all its
accessory penalties, to indemnify the heirs of Ramilyn Zulueta in the amount of FIFTY
THOUSAND PESOS (P50,000.00), to pay the sum of P23,673.35 by way of reimbursement
of the hospitalization, burial and other related expenses for Ramilyn Zulueta and the further
sum of P30,000.00 by way of moral and exemplary damages; to pay Glory Oropeo the sum
of P30.00 by way of reparation of the stolen cash money; to pay Ma. Grace Zulueta the sum
of P6,400.00 by way of reimbursement of her hospitalization expenses, all without subsidiary
imprisonment in case of insolvency and to pay the costs.

In the service of their sentence, the accused shall be credited in full with the period of their
preventive imprisonment.

SO ORDERED.

In this appeal, appellants fault the trial court for giving credence to the "inconsistent, conflicting and
contradictory testimonies" of prosecution witnesses Grace Zulueta and Glory Oropeo and for
convicting them of the crime charged "despite the failure of the prosecution to prove their guilt
beyond reasonable doubt."  28

Although not directly raised by the appellants, we find upon a thorough scrutiny of the facts that
there is yet another question which is of concern to the bar and the bench: are the facts attendant to
this case constitutive of the crime of highway robbery with homicide under Pres. Decree No. 532 or
of the felony of robbery with homicide under Art. 294 of the Revised Penal Code?

The Court's Ruling

This appeal hinges primarily on the issue of credibility of witnesses. As this Court has ruled in
innumerable cases, the trial court is best equipped to make the assessment on said issue and
therefore, its factual findings are generally not disturbed on appeal unless the court a quo is
perceived to have overlooked, misunderstood or misinterpreted certain facts or circumstances of
weight, which, if properly considered, would affect the result of the case and warrant a reversal of
the decision involved.  We do not find in the instant case any such reason to depart from said
29 

general principle. Nevertheless, in the interest of substantial justice, we shall confront the issues
raised herein by the appellants.

Appellants allege the following "inconsistent" testimonies of the prosecution eyewitnesses: (a) Grace
testified that it was Rejali who shouted "hold-up", pulled out a gun and fired, in contradiction to
Glory's testimony that the man in front of her, referring to Jack, announced the hold-up, and (b) at
the direct examination, Grace pointed out that she was struck behind her right ear but during cross-
examination, she said that she was hit on the left ear.

The first inconsistency may be attributed to the difference in the relative positions of Grace and Glory
inside the jeepney. Grace was seated near the rear entrance of the jeepney while Glory was behind
the driver. Because Grace was far from both Jack and Rejali who were seated near Glory, this could
have affected her perception of who announced the hold-up. At any rate, such disparity in their
testimonies does not at all derail the sufficiently established fact that both appellants herein
participated in the hold-up. As regards the injuries sustained by Grace, the certificate issued by her
attending physician, Dr. Sosepatro Aguila, states that she sustained injuries on both sides of the
head  , clearly showing no "contradictions" in her testimony with respect to where she was hit.
30 

Be that as it may, these "inconsistencies" or "contradictions" are minor ones which do not have any
material bearing on the culpability of the appellants as they do not in any way refute their positive
identification by the two eyewitnesses as the perpetrators of the holdup.  On the contrary, they
31 

reflect the truthfulness of the testimonies of Grace and Glory. As this Court said in People
vs. Retuta  : 32 

The discrepancy signifies that the two witnesses did not deliberately pervert the truth in their
narrations. The discordance; in their testimonies on minor matters heightens their credibility
and shows that their testimonies were not coached or rehearsed (People v. Doria, 55 SCRA
425). As this Honorable Court held in People v. Agudu, 137 SCRA 516 to wit:

"However, the variance, if any, is on a minor detail which would not destroy the
effectiveness of their testimony. We cannot expect absolute uniformity in every detail
because witnesses react differently to what they see and hear, depending upon their
situation and state of mind. Complete uniformity in details is a badge of
untruthfulness. The light contradictions, on the other hand, strengthens the sincerity
of the testimony of the witnesses."

Thus, far from evidence of falsehood, the minor inconsistency between the testimonies could
justifiably be regarded as a demonstration of their good faith.

The strongest part of the defense arguments concerns the identification of the appellants as the
perpetrators of the crime considering the lighting condition inside the jeepney. Appellants believed
that they could not have been recognized because both Grace and Glory admitted that the place
was dark, and so surmised that it would have been darker inside the jeepney because the
eyewitnesses failed to point out the source of light therein.  However, in trying to prove their
33 

allegation, appellants unwittingly brought out details via Grace's testimony which demolish their
surmise. Thus:

Q.       Despite the darkness, you were able to identify the gun?

A.       I did not say it was completely dark. I said in the jeepney it was quite lighted. I said it
was dark outside but in the jeepney, it was quite lighted.  (Emphasis supplied.)
34 

It seems, moreover, that appellants only quoted portions of the testimonies of Grace and Glory to
suit their purpose. Had the appellants been candid enough, they would have retained portions of the
same testimonies evidencing that it was the place where the jeepney was passing through that was
dark but, inside the jeepney, it was "medium light". Grace had testified on cross-examination as
follows:

Q.       Will you mention again the exact location of the alleged incident?

A.       I am not familiar with the streets, sir. It was after a bridge. After UERM, sir.

Q.       What was the condition of the place at that time?

A.       It was moderately dark. Quite lighted. Medium.

Q.       How about inside the passenger jeepney? Was it lighted?

A.       Medium, sir. Since it was dark, you cannot have a complete light there.

Q.       It was quite dark?

A.       Yes, sir. 
35
For her part, Glory testified on cross-examination in this wise:

Q.       Madam witness, will you mention again the exact location where you said you were
allegedly held up?

A.       San Juan, H. Lozada and J. Ruiz St., sir.

Q.       What was the condition of that place at that time?

A.       It was dark because it was already nighttime.

Q.       You mean the exact place where you were held-up is a dark place?

A.       Yes, sir.  (Emphasis supplied.)

36 

Visibility is an important factor in the identification of a criminal offender. However, its relative weight
and significance depends largely on the attending circumstances and the discretion of the trial
court.  Another overriding consideration is the fact that the most natural reaction of victims of
37 

violence is to see the appearance of the perpetrator of the crime and observe the manner in which
the crime was being committed.  38

In the case before us, Grace's unrebutted testimony is that the jeepney was "quite lighted . . .
medium". Even granting that the light was dim as most jeepneys have colored or low-wattage bulbs
for the passenger area, the added illumination from the headlights of passing vehicles traveling the
busy Aurora Boulevard would have been sufficient to permit positive identification of the
appellants.  Moreover, identification of the appellants as the hold-uppers was facilitated by their
39 

physical proximity to the said eyewitnesses. Grace was seated beside appellant Mendoza while
Glory was beside Rejali. That Grace had poor eyesight does not affect her positive identification of
Mendoza because she was wearing her eyeglasses when the hold-up took place.  As stated above,
40 

because they were victims of violence, both Grace and Glory must have had the appellants' features
indelibly imprinted in their minds.

In light of the positive identification of the appellants as the perpetrators of the crime, their alibis are
worthless.  Moreover, the defense failed to meet the requisites for alibi to be considered as a valid
41 

defense. It is not enough that the appellants were somewhere else when the crime transpired. They
must likewise duly establish that they were so far away that it was not physically possible for them to
be present at the crime scene or its immediate vicinity at or about the time of its commission.  Balic-
42 

balic in Sampaloc, Manila and Aurora Boulevard in San Juan, Metro Manila are not very distant from
each other considering the numerous public transportation facilities plying between said places.

But, while there is proof beyond reasonable doubt to lay culpability on the appellants for the killing of
Ma. Ramilyn Zulueta, the physical injuries sustained by her sister Grace and the asportation of Glory
Oropeo's thirty pesos, we do not agree with the trial court that the crime committed by appellants is
covered by P.D. No. 532.

In its Decision, the trial court curtly said:

The Court finds all the elements of the offense charged, namely, intent to gain, unlawful
taking of property of another, (the P30.00 of Glory Oropeo) violence against or intimidation of
any person, on a Philippine Highway and death of Ramilyn Zulueta and physical injuries
upon Ma. Grace Zulueta, (Section 2, par. 3 and Section 3, par. b, Anti-Piracy and Anti-
Highway Robbery Law of 1974, Pres. Decree No. 532) have been duly proved in the instant
case.

Highway Robbery or Robbery with Homicide?

Conviction under P.D. No. 532 requires not only the above elements mentioned by the court a quo.
Highway robbery or brigandage is defined by Section 2 of said decree as follows:

e. Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or other
unlawful purposes, or the taking away of the property of another by means of violence
against or intimidation of person or force upon things or other unlawful means, committed by
any person on any Philippine highway.

In People vs. Puno  , this Court, speaking through the learned Mr. Justice Florenz D. Regalado,
43 

explained the purpose of brigandage as follows:

 In fine, the purpose of brigandage is inter alia, indiscriminate highway robbery. If the purpose
is only a particular robbery, the crime is only robbery, or robbery in band if there are at least
four armed participants. (citing U.S. vs. Feliciano, 3 Phil. 422 [1904].) . . .

. . . Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine
highways as defined therein, and not acts of robbery committed against only a
predetermined or particular victim, . . .

Consistent with the above, to obtain a conviction for highway robbery, the prosecution should have
proven that the accused, in the instant case, were organized for the purpose of committing robbery
indiscriminately. There, however, was a total absence of such proof. There was also no evidence of
any previous attempts at similar robberies by the accused to show the "indiscriminate" commission
thereof.

Incidentally, it would be relevant to add that the number of perpetrators is no longer an essential
element of the crime of brigandage as defined by P.D. No. 532. Mr. Justice Regalado explained this
in Puno:

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the
Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses
stated therein when committed on the highways and without prejudice to the liability for such
acts if committed. Furthermore, the decree does not require that there be at least four armed
persons forming a band of robbers; and the presumption in the Code that said accused are
brigands if they use unlicensed firearms no longer obtains under the decree. . . . 44

Under the old doctrine, brigandage was committed by a "cuadrilla"  or by "more than three armed
45 

persons" per the definition of brigands in Article 306 of the Revised Penal Code.  46

Even before the Puno holding, however, there had been cases  where less than four offenders were
47 

held guilty of highway robbery under P.D. No. 532, which just strengthens the view that the number
of offenders is not an essential element in the crime of highway robbery.  48

It is possible that since Aurora Boulevard is a high way within the purview of P.D. No. 532,  the 49 

prosecutors deemed it proper to charge appellants with violation of said decree. In this regard,
the Puno ruling is enlightening. This Court held:

. . . (i)t would be absurd to adopt a literal interpretation that any unlawful taking of property
committed on our highways would be covered thereby. It is an elementary rule of statutory
construction that the spirit or intent of the law should not be subordinated to the letter
thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he
who considers merely the letter of an instrument goes but skin deep into its meaning, and
the fundamental rule that criminal justice inclines in favor of the milder form of liability in case
of doubt.

If the mere fact that the offense charged was committed on a highway would be the
determinant for the application of Presidential Decree No. 532, it would not be far-fetched to
expect mischievous, if not absurd, effects on the corpus of our substantive criminal law.
While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the
aforestated theory adopted by the trial court falls far short of the desideratum in the
interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either
stationary or moving on a highway, is forcibly taken at gunpoint by the accused who
happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful
taking necessarily put the offense within the ambit of Presidential Decree No. 533, thus
rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? And, if the
scenario is one where the subject matter of the unlawful asportation is large cattle which are
incidentally being herded along and traversing the same highway and are impulsively set
upon by the accused, should we apply Presidential Decree No. 532 and completely
disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974?  50

Hence, in charging a crime under P.D. No. 532, it is important to consider whether or not the very
purpose for which the law was promulgated has been transgressed. Citing the "whereas clauses" of
P.D. No. 532  in Puno, the Court said:
51 

Indeed, it is hard to conceive of how a single act of robbery against a particular person
chosen by the accused as their specific victim could be considered as committed on the
"innocent and defenseless inhabitants who travel from one place to another," and which
single act of depredation would be capable of "stunting the economic and social progress of
the people" as to be considered "among the highest forms of lawlessness condemned by the
 penal statutes of all countries," and would accordingly constitute an obstacle "to the
economic, social, educational and community progress of the people," such that said
isolated act would constitute the highway robbery or brigandage contemplated and punished
in said decree. This would be an exaggeration bordering on the ridiculous.  52

Petty robbery in public transport vehicles (with or without personal violence and death) committed
against the middle and lower economic classes of society is as reprehensible as (if not more so
than) large-scale robbery committed against the economically well-heeled. Nonetheless, the law
must be interpreted not only to bring forth its aim and spirit but also in light of the basic principle that
all doubts are to be resolved liberally in favor of the accused. As such, appellants may not be held
liable under P.D. No. 532 but only under the provisions of the Revised Penal Code.

In the interpretation of an information, what controls is not the designation but the description of the
offense charged.  Considering the allegations of the aforequoted Information, appellants herein
53 

should be liable for the special complex crime of robbery with homicide under Art. 294 of the
Revised Penal Code, robbery having been duly established beyond reasonable doubt by the
asportation of thirty pesos from Glory Oropeo. It is immaterial that Ramilyn Zulueta's death was
accidental because it was produced by reason or on the occasion of the robbery.  The physical
54 

injuries inflicted upon Grace Zulueta during the commission of the crime are absorbed in the crime of
robbery with homicide.  55

Conspiracy was duly proven by the coordinated actions of the appellants and their companion  of 56 

depriving Glory of her money and injuring both Ramilyn and Grace which resulted in Ramilyn's
accidental death. Since both appellants took part in the robbery, they shall be liable for the complex
crime of robbery with homicide in the absence of proof that they endeavored to prevent the
accidental killing of Ramilyn.  In view of the prohibition against the imposition of the death penalty
57 

when the crime was committed, the penalty of reclusion perpetua was then the single and indivisible
penalty for robbery with homicide. It shall be imposed on each of the appellants regardless of the
mitigating and aggravating circumstances attending the commission of the crime.  58

WHEREFORE, the Decision of the Regional Trial Court of Pasig, Metro Manila (Branch 156) in Crim.
Case No. 87218 is hereby MODIFIED. Appellants Romeo Mendoza y Reyes and Jaime Rejali y Lina
are hereby found GUILTY beyond reasonable doubt of the special complex crime of robbery with
homicide and accordingly, each of them is hereby sentenced to suffer the penalty of reclusion
perpetua. The other portions of the trial court's decision, including the monetary awards imposed
against them, are AFFIRMED. Costs against appellants.

SO ORDERED.

G.R. No. 176251

DEL CASTILLO, J.:

"[T]he freedom to express one's sentiments and belief does not grant one
the license to vilify in public the honor and integrity of another. Any
sentiments must be expressed within the proper forum and with proper
regard for the rights of others."[1]

In this Petition for Review on Certiorari[2] under Rule 45 of the Rules of

Court, Dr. Alfonso Lagaya y Tamondong (petitioner) seeks to reverse and
set aside the Decision[3] dated October 26, 2006 of
the Sandiganbayan finding him guilty of Libel.  He likewise challenges the
Resolution[4] of the Sandiganbayan dated January 16, 2007 denying his
Motion for Reconsideration.[5]

In an Information[6] dated September 4, 2003, petitioner was charged with

the crime of libel defined and penalized under Article 355 in relation to
Articles 353 and 354 of the Revised Penal Code (RPC), allegedly committed
as follows:
That on or about the 5th day of August 2002, or sometime prior or
subsequent thereto, in Carig, Tuguegarao City, Province of Cagayan,
Philippines, and within the jurisdiction of this Honorable Court, accused
ALFONSO LAGAYA y TAMONDONG, a public officer, being the Director
General with Salary Grade 28 of the Philippine Institute of Traditional and
Alternative Health Care (PITAHC), an attached agency of Department of
Health, while in the performance of his official functions, taking advantage
of his official position and committing the crime herein charged in relation
to his office, did then and there, wilfully, unlawfully and feloniously, and by
means of writing, defame and libel one Dr. Marilyn Martinez by including
in Memorandum No. 06. S. 2002 entitled "Disclosure and Misuse of
Confidential and Classified Information" he issued and disseminated to the
Plant Manager and Staff of Cagayan Valley Herbal Processing Plant in
discharge of his administrative supervision and control the statement that
Dr. Marilyn Martinez's state of mind or psychiatric behavior be submitted
for further psychological and/or psychiatric treatment to prevent further
deterioration of her mental and emotional stability, such statement being
immaterial and irrelevant thus causing dishonor, discredit and contempt to
the person of Dr. Marilyn Martinez which subjected her to public ridicule.

CONTRARY TO LAW.

When arraigned on May 14, 2004, petitioner, with the assistance of

counsel de parte, pleaded "Not Guilty" to the charge.[7] After the
prosecution and defense made some stipulation of facts, trial on the merits
ensued.

Factual Antecedents 

Dr. Marilyn Martinez (private respondent) was the Plant Manager of the
Cagayan Valley Herbal Processing Plant (HPP) of the Philippine Institute of
Traditional and Alternative Health Care (PITAHC), an attached agency of
the Department of Health.  On July 1 and 2, 2002, she attended the Mid-
Year Performance Evaluation Seminar conducted at the Sulo Hotel by
McGimpers International Consulting Corporation (McGimpers). The latter
was engaged by the PITAHC with the prime objective of developing its
marketing arm and the personality of each personnel of the Sales
Department.[8] The participants in the seminar were Sales Managers,
various Plant Managers, Sales Agents from the different Regional Offices
and other staff of PITAHC. It would appear, however, that during the
seminar, the private respondent and one of the female resource speakers
had a misunderstanding as a result of the alleged abusive remarks made by
the latter pertaining to the former's capability as a supervisor.

On August 8, 2002, the private respondent was summoned by Dr. Eriberto

Policar (Dr. Policar), the Regional Director of PITAHC to his office.
Thereat, Dr. Policar handed her a copy of Memorandum No. 6, Series of
2002 dated August 5, 2002.[9] The Memorandum was signed by petitioner,
he being then the Director General of PITAHC, addressed to all the plant
managers and staff and was distributed to the different plants all over the
country. The subject of the memorandum is "Disclosure and Misuse of
Confidential and Classified Information" and a salient portion thereof
states that private respondent needs to undergo psychological and
psychiatric treatment to prevent deterioration of her mental and emotional
stability as recommended by McGimpers.

Memorandum No. 6, series of 2002 reads:

TO                   :           HPP's Plant Manager & Staff

SUBJECT        :           Disclosure and Misuse of Confidential and Classified
Information

It came into our attention that Dr. MARILYN MARTINEZ, has personally
lobbied in a legislature, councils or offices without authority, to further her
private interest or give undue advantage to anyone or to prejudice the
public interest. Please be informed that the Board of Trustees has no
decision made as of date regarding the fate of the HPP's.

In addition, this office has received official complaint behavior of Dr.

Martinez compromising the efficiency of the HPP's and the entire
organization. Such [behavior] unbecoming of Dr. Martinez is supported by
officials of the HPP's as well as the findings of our Consultant McGimpers
International Consulting Corporation during the Mid Year Evaluation at
Sulo Hotel last July 1-2. 2002. recommending that "Dr. Martinez be
submitted for further psychological and or psychiatric treatment to
prevent further deterioration of her menial and emotional stability".

In view of this, you are hereby directed to submit to this office any
incidental report that is affecting the efficiency in the HPP's operation;
and/or information related to her psychiatric behavior.

For information and guidance.

(Signed)
ALFONSO T. LAGAYA, MD, MDM
Director General

On account of the issuance of the Memorandum, which according to private

respondent exposed her to public ridicule and humiliation, she sought the
assistance of a lawyer to file the necessary administrative, civil and criminal
charges against petitioner.

Petitioner admitted having signed the memorandum. He claimed that he

had been receiving information that private respondent was lobbying
against the intended privatization of the Herbal Processing Plants when the
Board of Trustees of PITAHC was still in the process of deliberating the
same, and of various verbal complaints against her from the employees of
the plants who were afraid to come out and voice their grievances formally.
He further stressed that the report of McGimpers gave him the opportunity
to encourage the employees of PITAHC to submit formal complaints
against the private respondent. Petitioner also averred that the issuance of
the memorandum was done in the performance of official duty and in good
faith considering that his objective is to help the private respondent.

Ruling of the Sandiganbayan 

In its Decision[10] promulgated on October 26,2006,
the Sandiganbayan held that the prosecution has convincingly established
by proof beyond reasonable doubt the existence of all the elements essential
to support the charge and thus adjudged petitioner guilty of the.crime of
libel, viz:

WHEREFORE, proceeding from the foregoing, judgment is hereby

rendered finding accused ALFONSO LAGAYA y TAMONDONG GUILTY of
the crime of libel defined and penalized under Article 355 in relation to
Articles 353 and 354 of the Revised Penal Code and, in the absence of any
modifying circumstance, sentencing the said accused to: (a) suffer an
indeterminate sentence of imprisonment of six (6) months of arresto
mayor, as minimum, to two (2) years, eleven (11) months, and ten (10),
days of prision correctional, as maximum; (b) suffer all the appropriate
accessory penalties consequent thereto, including perpetual special
disqualification; and (c) pay the costs.

SO ORDERED.[11]

Petitioner sought reconsideration of the Decision but the Sandiganbayan

denied the same in the questioned January 16, 2007 Resolution. [12]

Hence, this petition.

Issues

Petitioner ascribes upon the Sandiganbayan the following errors:

I
HIE HONORABLE SANDIGANBAYAN ERRED IN NOT HOLDING THAT
THE CONTENTS OF THE MEMORANDUM ARE NOT DEFAMATORY AS
THEY WERE MERELY QUOTED VERBATIM I ROM A
RECOMMENDATION OF PITAHC CONSULTANT MCGIMPERS
INTERNATIONAL CONSULTANCY CORPORATION.

II
GRANTING ARGUENDO THAT THE UTTERANCE WAS IN ITSELF
DEFAMATORY, NONETHELESS, THE HONORABLE SANDIGANBAYAN
ERRED IN NOT HOLDING THAT THE SUBJECT MEMORANDUM WAS
NOT ATTENDED WITH MALICE TO THUS FREE PETITIONER OF
CRIMINAL LABILITY.

III

IN ANY EVENT. THE SUBJECT MEMORANDUM FALLS WITHIN THE

AMBIT OF THE PRIVILEGED COMMUNICATION RULE, HENCE, NOT
LIBELOUS.
 IV

THE PROSECUTION'S EVIDENCE TO PROVE THE COMMISSION OF

LIBEL FELL SHORT OF THE DEGREE OF PROOF, THAT IS, PROOF
BEYOND REASONABLE DOUBT, REQUIRED BY LAW TO BE
ESTABLISHED IN ORDER TO OVERCOME THE CONSTITUTIONALLY
ENSHRINED PRESUMPTION OF INNOCENCE IN FAVOR OF ACCUSED-
PETITIONER.

GRANTING WITHOUT ADMITTING THAT PETITIONER IS LIABLE I OR

Till-: CRIME OF LIBEL THE PENALTY IMPOSED UPON HIM IS NOT
COMMENSURATE TO THE ALLEGED OFFENSE; BEARING IN MIND
SEVERAL YEARS OF UNTARNISHED PUBLIC SERVICE AS DIRECTOR
GENERAL FOR PITAHC.[13]

Petitioner avers that the contents of the subject memorandum are not
defamatory. The memorandum was not only issued in good faith but also in
the performance of his official duty as Director General of PITAHC, that is,
to make certain that the members of the organization he heads would work
together for the accomplishment of the organization's mandate. In fact, he
merely quoted in the said memorandum the recommendation of their
consultant McGimpers. Petitioner also argues that the subject
memorandum falls within the ambit of privileged communication, hence,
not actionable. Lastly, assuming that he is liable, a fine instead of
imprisonment should be imposed following prevailing jurisprudence.

Private respondent and public respondent People of the Philippines, in

their respective comments, pray for the affirmance of the challenged
Decision of the Sandiganbayan and for the dismissal of the petition.

Our Ruling

The Court finds the petition partly impressed with merit.

All the requisites of the crime of libel

are obtaining in this case. 

A libel is defined as "a public and malicious imputation of a crime, or of a

vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is dead.
[14]
 "For an imputation to be libelous, the following requisites must concur:
a) it must be defamatory; b) it must be malicious; c) it must be given
publicity; and d) the victim must be identifiable." [15]

The Court finds the four aforementioned requisites to be present in this

case.

As to the first requisite, we find the subject memorandum defamatory. An

allegation is considered defamatory if it ascribes to a person the
commission of a crime, the possession of a vice or defect, real or imaginary,
or any act, omission, condition, status or circumstance which tends to
dishonor or discredit or put him in contempt or which tends to blacken the
memory of one who is dead. "In determining whether a statement is
defamatory, the words used are to be construed in their entirety and should
be taken in their plain, natural and ordinary meaning as they would
naturally be understood by persons reading them, unless it appears that
they were used and understood in another sense."[16]

In the present case, the subject memorandum dealt more on the supposedly
abnormal behavior of the private respondent which to an ordinary reader
automatically means a judgment of mental deficiency. As
the Sandiganbayan correctly ruled:

xxx To stress, the words used could not be interpreted to mean other than
what they intend to say - that Martinez has psychiatric problems and needs
psychological and/or psychiatric treatment: otherwise her mental and
emotional stability would further deteriorate. As the law does not make,
any distinction whether the imputed defect/condition is real or imaginary,
no other conclusion can be reached, except that accused Lagaya. in issuing
the Memorandum. ascribes unto Martinez a vice, defect, condition, or
circumstance which tends to dishonor, discredit, or put her in ridicule,
xxx[17]

The element of malice was also established. "Malice, which is the doing of
an act conceived in the spirit of mischief or criminal indifference to the
rights of others or which must partake of a criminal or wanton nature, is
presumed from any defamatory imputation, particularly when it injures the
reputation of the person defamed."[18] As early on, the Court had perused
the second paragraph contained in the subject memorandum and since the
same, on its face, shows the injurious nature of the imputations to the
private respondent, there is then a presumption that petitioner acted with
malice.   Under Article 354 of the RPC, every defamatory imputation is
presumed to be malicious, even if it be tme, if no good intention and
justifiable motive for making it is shown.

To buttress his defense of lack of malice, petitioner claimed that when he

issued the memorandum, he was motivated by good intention to help
private respondent and improve PITAHC. Such goodness, however, is not
sufficient justification considering the details of the entire contents of the
memorandum. Thus, in United States v. Prautch,[19] it was held that "[t]he
existence of justifiable motives is a question which has to be decided by
taking into consideration not only the intention of the author of the
publication but all the other circumstances of each particular case." [20] 
Certainly, the second paragraph in the memorandum was not encompassed
by the subject indicated therein (Disclosure and Misuse of Confidential and
Classified Information) and likewise was riot even germane to the
privatization of PITAHC. At this juncture, the observation of the Court of
Appeals (CA) in CA-G.R. SP No. 83622, an Administrative Case filed
against herein petitioner based on the same set of facts and circumstances,
is worth noting, viz:
x x x If. indeed, petitioner was merely disseminating information to the
Manager and Staff of HPP's under the administration of PITAHC, as he
claims, he could have just stated in plain terms the current status of HPP's
to counter the alleged misinformation such as what plans,
recommendations and steps are being considered by the PITAHC about the
HPP's, any developments regarding the decision-making process with the
assurance that the concerns of those employees involved or will be affected
by a possible abolition or reorganization are properly addressed, and
similar matters and just stopped there. Casting aspersion on the mental
state of private respondent who herself may just be needing plain and
simple clarification from a superior like petitioner who is no less the
Director of the PITAHC. is totally uncalled for and done in poor taste.

x x x Far from discharging his public duties "in good faith" petitioner
succeeded only in ruining beyond repair the reputation of private
respondent and attack her very person -- the condition of her mental
faculties and emotional being -- not only by circulating the memo in their
offices nationwide but even personally distributed and made sure that the
Manager and Staff of the HPP in Tuguegarao where private respondent
works, have all read the memo in his presence. It is unbelievable that a
public official would stoop so low and diminish his stature by such
unethical, inconsiderate, and unfair act against a co-worker in the public
service.

xxxx

We fully concur with the Ombudsman's declaration that short of using the
word "'insane," the statements- in the memo unmistakably imply that the
alleged unauthorized disclosure by private respondent of supposedly
classified information regarding the fate of the HPP's is simply an external
manifestation of her deteriorating mental and emotional condition.
Petitioner thereby announced to all the employees of the agency that such
alleged infraction by private respondent only confirms the findings of their
consultant that private respondent is suffering from mental and emotional
imbalance, even instructing them to report any information related to
private respondent's "psychiatric behavior."[21]

This CA ruling in the Administrative Case which had already attained its
finality on November 30, 2004"[22] has effectively and decisively determined
the issue of malice in the present petition. We see no cogent reason why
this Court should not be bound by it.  In Constantino v. Sandiganbayan
(First Division)[23] the Court ruled:

Although the instant case involves a criminal charge

whereas Constantino involved an administrative charge, still the findings in
the latter case are binding herein because the same set of facts are the
subject of both cases. What is decisive is that the issues already litigated in
a final and executory judgment preclude by the principle of bar by prior
judgment, an aspect of the doctrine of res judicata. and even under the
doctrine of "law of the case," the re-litigation of the same issue in another
action. It is well established that when a right or fact has been judicially
tried and determined by a court of competent jurisdiction, so long as it
remains unreversed. it should be conclusive upon the parties and those in
privity with them. The dictum therein laid down became the law of the case
and what was once irrevocably established as the controlling legal rule or
decision continues to be binding between the same parties as long as the
facts on which the decision was predicated continue to be the facts of the
case before the court. Hence, the binding effect and enforceability of that
dictum can no longer be resurrected anew since such issue had already
been resolved and finally laid to rest, if not by the principle of res
judicata. at least by conclusiveness of judgment. (Citations omitted.)

The element of publication was also proven. "Publication, in the law of libel,
means the making of the defamatory matter, after it has been written,
known to someone other than the person to whom it has been
written."[24] On the basis of the evidence on record and as found by
the Sandiganbayan, there is no dispute that copies of the memorandum
containing the defamatory remarks were circulated to all the regional
offices of the HPP. Evidence also shows that petitioner allowed the
distribution of the subject memorandum and even read the contents
thereof before a gathering at a meeting attended by more or less 24
participants thereat.

Anent the last element, that is, the identity of the offended party, there is no
doubt that the private respondent was the person referred to by the
defamatory remarks as she was in fact, particularly named therein.

Privileged Communication Rule

is not applicable in this case. 

Petitioner tenaciously argues that the disputed memorandum is not

libelous since it is covered by the privileged communication rule.  He avers
that memorandum is an official act done in good faith, an honest innocent
statement arising from a moral and legal obligation.

Petitioner's invocation of the rule on privileged communication is

misplaced.

Article 354 of the RPC provides:

Article 354; Requirement for publicity Every defamatory imputation is

presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:

1.  A private communication made by any person to another in the

performance of any legal, moral, or social duty; and

2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative, or other official proceedings which are
not of confidential nature, or of any statement, report, or speech delivered
in said proceedings, or of any other act performed by public officers in the
exercise of their functions.

Before a statement would come within the ambit of a privileged

communication under paragraph No, 1 of the abovequoted Article 354, it
must be established that: "1) the person who made the communication had
a legal, moral or social duty to make the communication, or at least, had an
interest to protect, which interest may either be his own or of the one to
whom it is made; 2) the communication is addressed to an officer or a
board, or superior, having some interest or duty in the matter, and who has
the power to furnish the protection sought: and 3) the statements in the
communication are made in good faith and without malice."[25] All these
requisites must concur.

In the instant case, petitioner addressed the memorandum not only to the
Plant Manager but also to the staff of HPP. Undoubtedly, the staff of HPP
were not petitioner's superiors vested' with the power of supervision over
the private respondent.  Neither were they the parties to whom die
information should be given for they have no authority to inquire into the
veracity of the charges. As aptly observed by the Sandiganbayan, the
memorandum is not simply addressed to an officer, a board or a superior.
Rather, the communication was addressed to all the staff of PITAHC who
obviously do not have the power to furnish the protection sought.
[26]
 Substantially, the Court finds no error in the foregoing findings. The
irresponsible act of furnishing the staff a copy of the memorandum is
enough circumstance which militates against the petitioner's pretension of
good faith and performance of a moral and social duty. As further held in
Brillante,[27] the law requires that for a defamatory imputation made out of
a legal, moral or social duty to be privileged, such statement must be
communicated only to the person or persons who have some interest or
duty in the matter alleged and who have the power to furnish the protection
sought by the author, of the statement. It may not be amiss to note at this
point too that petitioner very well knows that the recommendation of
PITAHC's consultant, McGimpers, is a sensitive matter that should be
treated with strictest confidentiality.[28]

Neither does the defamatory statement in the memorandum covered by

paragraph No. 2 of the Article 354. Though private respondent is a public
officer, certainly, the defamatory remarks are not related or relevant to the
discharge of her official duties but was purely an attack on her mental
condition which adversely reflect on her reputation and dignity.

Imposition of the penalty of fine instead

of imprisonment. 

Notwithstanding the guilt of the petitioner, still the Court finds favorable
consideration on his argument that instead of imprisonment a fine should
be imposed on him.

Following precedents[29] and considering that the records do not show that

petitioner has previously violated any provision of the penal laws, the
Court, in the exercise of its judicious discretion, imposes upon him a
penalty of fine instead of imprisonment.

WHEREFORE, premises considered, the petition is PARTLY

GRANTED. The Decision of the Sandiganbayan finding petitioner
Alfonso Lagaya y Tamondong guilty beyond reasonable doubt of the crime
of libel is AFFIRMED in all respects except that in lieu of imprisonment,
petitioner is sentenced to pay a fine of P6,000.00 with subsidiary
imprisonment in case of insolvency.

SO ORDERED.
G.R. No. 183623               June 25, 2012

LETICIA B. AGBAYANI, Petitioner,
vs.
COURT OF APPEALS, DEPARTMENT OF JUSTICE and LOIDA MARCELINA J.
GENABE, Respondents.

DECISION

REYES, J.:

On petition for review under Rule 45 of the 1997 Rules of Court is the Decision dated March 27,
1 

2008 of the Court of Appeals (CA) dismissing the petition for certiorari and the Resolution dated July
2 

3, 2008 denying the motion for reconsideration thereof in CA-G.R. SP No. 99626. Petitioner Leticia
B. Agbayani (Agbayani) assails the resolution of the Department of Justice (DOJ) which directed the
withdrawal of her complaint for grave oral defamation filed against respondent Loida Marcelina J.
Genabe (Genabe).

Antecedent Facts

Agbayani and Genabe were both employees of the Regional Trial Court (RTC), Branch 275 of Las
Piñas City, working as Court Stenographer and Legal Researcher II, respectively. On December 29,
2006, Agbayani filed a criminal complaint for grave oral defamation against Genabe before the
Office of the City Prosecutor of Las Piñas City, docketed as I.S. No. 07-0013, for allegedly uttering
against her, in the presence of their fellow court employees and while she was going about her usual
duties at work, the following statements, to wit:

"ANG GALING MO LETY, SINABI MO NA TINAPOS MO YUNG MARVILLA CASE, ANG GALING
MO. FEELING LAWYER KA KASI, BAKIT DI KA MAGDUTY NA LANG, STENOGRAPHER KA
MAGSTENO KA NA LANG, ANG GALING MO, FEELING LAWYER KA TALAGA. NAGBEBENTA
KA NG KASO, TIRADOR KA NG JUDGE. SIGE HIGH BLOOD DIN KA, MAMATAY KA SANA SA
HIGH BLOOD MO." 3

In a Resolution rendered on February 12, 2007, the Office of the City Prosecutor of Las Piñas
4 

City found probable cause for the filing of the Information for grave oral defamation against Genabe.
5 

However, upon a petition for review filed by Genabe, the DOJ Undersecretary Ernesto L. Pineda
(Pineda) found that:

After careful evaluation and consideration of the evidence on record, we find merit in the instant
petition.

Contrary to the findings in the assailed resolution, we find that the subject utterances of respondent
constitute only slight oral defamation.

As alleged by the [petitioner] in paragraphs 2, 3 and 4 of her complaint-affidavit, respondent uttered

the remarks subject matter of the instant case in the heat of anger. This was also the tenor of the
sworn statements of the witnesses for complainant. The Supreme Court, in the case of Cruz vs.
Court of Appeals, G.R. Nos. L-56224-26, November 25, 1982, x x x held that although abusive
remarks may ordinarily be considered as serious defamation, under the environmental
circumstances of the case, there having been provocation on complainant’s part, and the utterances
complained of having been made in the heat of unrestrained anger and obfuscation, such utterances
constitute only the crime of slight oral defamation.

Notwithstanding the foregoing, we believe that the instant case should nonetheless be dismissed for
non-compliance with the provisions of Book III, Title I, Chapter 7 (Katarungang Pambarangay), of
Republic Act No. 7160 (The Local Government Code of 1991). As shown by the records, the parties
herein are residents of Las Piñas City. x x x

The complaint-affidavit, however, failed to show that the instant case was previously referred to the
barangay for conciliation in compliance with Sections 408 and 409, paragraph (d), of the Local
Government Code, which provides:
Section 408. Subject Matter for Amicable Settlement; Exception Thereto. – The lupon of each
barangay shall have authority to bring together the parties actually residing in the same city or
municipality for amicable settlement of all disputes except: xxx

Section 409. Venue. x x x (d) Those arising at the workplace where the contending parties are
employed or xxx shall be brought in the barangay where such workplace or institution is located.

The records of the case likewise show that the instant case is not one of the exceptions enumerated
under Section 408 of the Local Government Code. Hence, the dismissal of the instant petition is
proper.

It is well-noted that the Supreme Court held that where the case is covered by P.D. 1508
(Katarungang Pambarangay Law), the compulsory process of arbitration required therein is a pre-
condition for filing a complaint in court. Where the complaint (a) did not state that it is one of the
excepted cases, or (b) it did not allege prior availment of said conciliation process, or (c) did not
have a certification that no conciliation or settlement had been reached by the parties, the case
should be dismissed x x x. While the foregoing doctrine is handed down in civil cases, it is submitted
that the same should apply to criminal cases covered by, but filed without complying with, the
provisions of P.D. 1508 x x x.6

Thus, in a Resolution dated May 17, 2007, the DOJ disposed, to wit:
7 

WHEREFORE, premises considered, the assailed resolution is hereby REVERSED and SET

ASIDE. Accordingly, the City Prosecutor of Las Piñas City is directed to move for the withdrawal of
the information for grave oral defamation filed against respondent Loida Marcelina J. Genabe, and
report the action taken thereon within ten (10) days from receipt hereof.

SO ORDERED. 8

The petitioner filed a motion for reconsideration, which was denied in a Resolution dated June 25,
9 

2007.

Consequently, Agbayani filed a petition for certiorari with the CA alleging that the DOJ committed
grave abuse of discretion in setting aside the Resolution dated February 12, 2007 of the City
Prosecutor of Las Piñas City in I.S. Case No. 07-0013. She averred that the respondent’s petition for
review filed with the DOJ did not comply with Sections 5 and 6 of DOJ Circular No. 70, or the "2000
National Prosecution Service (NPS) Rules on Appeal," and maintained that her evidence supported
a finding of probable cause for grave oral defamation against respondent Genabe.

On March 27, 2008, the CA dismissed the petition after finding no grave abuse of discretion on the
part of the DOJ. Citing Punzalan v. Dela Peña, the CA stated that for grave abuse of discretion to
10 

exist, the complained act must constitute a capricious and whimsical exercise of judgment as it is
equivalent to lack of jurisdiction, or when the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and it must be so patent and gross as to amount to an
evasion of positive duty enjoined or to act at all in contemplation of law. It is not sufficient that a
tribunal, in the exercise of its power, abused its discretion; such abuse must be grave.

On motion for reconsideration by the petitioner, the CA denied the same in its Resolution dated July
11 

3, 2008. Hence, the instant petition.

Assignment of Errors

Maintaining her stance, Agbayani raised the following, to wit:

I. RESPONDENT COURT GRAVELY ERRED IN HOLDING THAT THE RESPONDENT

DOJ DID NOT ABUSE ITS DISCRETION WHEN THE LATTER REVERSED AND SET
ASIDE THE RESOLUTION OF THE CITY PROSECUTOR OF LAS PIÑAS CITY.

II. RESPONDENT COURT GRAVELY ERRED IN AFFIRMING RESPONDENT DOJ'S

FINDING THAT WHAT PRIVATE RESPONDENT COMMITTED WAS ONLY SLIGHT ORAL
DEFAMATION.

III. RESPONDENT COURT GRAVELY ERRED IN AFFIRMING RESPONDENT DOJ'S

DISMISSAL OF THE COMPLAINT DUE TO NON-COMPLIANCE WITH THE PROVISIONS
OF THE LOCAL GOVERNMENT CODE OF 1991.
 IV. RESPONDENT COURT GRAVELY ERRED WHEN IT HELD THAT THE
REQUIREMENTS UNDER DOJ CIRCULAR NO. 70 (2000 NPS Rule on Appeal) ARE NOT
MANDATORY. 12

Ruling and Discussions

The petition is bereft of merit.

We shall first tackle Agbayani's arguments on the first two issues raised in the instant petition.

1. Petitioner Agbayani alleged that Undersecretary Pineda unfairly heeded only to the
arguments interposed by respondent Genabe in her comment; and the CA, in turn, took his
findings and reasoning as gospel truth. Agbayani’s comment was completely disregarded
and suppressed in the records of the DOJ. Agbayani discovered this when she went to the
DOJ to examine the records, as soon as she received a copy of the DOJ Resolution of her
motion for reconsideration.

2. Further, petitioner Agbayani maintained that respondent Genabe’s Petition for

Review should have been dismissed outright, since it failed to state the name and address
13 

of the petitioner, nor did it show proof of service to her, pursuant to Sections 5 and 6 of DOJ
Circular No. 70. Also, the petition was not accompanied with the required attachments, i.e.
certified copies of the complaint, affidavits of witnesses, petitioner's reply to respondent's
counter-affidavit, and documentary evidences of petitioner. Thus, a grave irregularity was
committed by the DOJ in allowing the surreptitious insertion of these and many other
documents in the records of the case, after the petition had been filed.

In particular, petitioner Agbayani alleged that when the petition was filed on March 22, 2007, only
five (5) documents were attached thereto, namely: (a) the Resolution of the City Prosecutor; (b) the
respondent's Counter-affidavit; (c) Letter of the staff dated January 2, 2005; (d) her Answer; and (e)
the Information filed against respondent Genabe with the Office of the City Prosecutor of Las Piñas
City. However, at the time the Resolution of the DOJ was issued, a total of forty-one (41)
documents formed part of the records of the petition. Besides, respondent Genabe's Motion to Defer
14 

Arraignment (Document No. 40) and the court order relative to the granting of the same (Document
No. 41) were both dated March 23, 2007, or a day after the petition was filed. Agbayani asserted that
these thirty-six (36) documents were surreptitiously and illegally attached to the records of the case,
an act constituting extrinsic fraud and grave misconduct. At the very least, the DOJ should have
15 

required respondent Genabe to formalize the "insertion" of the said documents.

Petitioner Agbayani reiterated that her version of the incident was corroborated by several witnesses
(officemates of Agbayani and Genabe), while that of Genabe was not. And since the crime
committed by respondent Genabe consisted of her exact utterances, the DOJ erred in downgrading
the same to slight oral defamation, completely disregarding the finding by the Investigating
Prosecutor of probable cause for the greater offense of grave oral defamation. She denied that she
gave provocation to respondent Genabe, insisting that the latter committed the offense with malice
aforethought and not in the heat of anger.

We find no merit in the above arguments.

It is well to be reminded, first of all, that the rules of procedure should be viewed as mere
instruments designed to facilitate the attainment of justice. They are not to be applied with severity
and rigidity when such application would clearly defeat the very rationale for their conception and
existence. Even the Rules of Court reflects this principle.16

Anent the charge of non-compliance with the rules on appeal, Sections 5 and 6 of the aforesaid DOJ
Circular provide:

SECTION 5. Contents of petition. - The petition shall contain or state: (a) the names and addresses
of the parties; (b) the Investigation Slip number (I.S. No.) and criminal case number, if any, and title
of the case, including the offense charged in the complaint; (c) the venue of the preliminary
investigation; (d) the specific material dates showing that it was filed on time; (e) a clear and concise
statement of the facts, the assignment of errors, and the reasons or arguments relied upon for the
allowance of the appeal; and (f) proof of service of a copy of the petition to the adverse party and the
Prosecution Office concerned.

The petition shall be accompanied by legible duplicate original or certified true copy of the resolution
appealed from together with legible true copies of the complaint, affidavits/sworn statements and
other evidence submitted by the parties during the preliminary investigation/ reinvestigation.
If an information has been filed in court pursuant to the appealed resolution, a copy of the motion to
defer proceedings filed in court must also accompany the petition.

The investigating/reviewing/approving prosecutor shall not be impleaded as party respondent in the

petition.  The party taking the appeal shall be referred to in the petition as either "Complainant-
1âwphi1

Appellant" or "Respondent-Appellant."

SECTION 6. Effect of failure to comply with the requirements. – The failure of petitioner to comply
WITH ANY of the foregoing requirements shall constitute sufficient ground for the dismissal of the
petition.

Contrary to petitioner Agbayani's claim, there was substantial compliance with the rules. Respondent
Genabe actually mentioned on page 2 of her petition for review to the DOJ the name of the petitioner
as the private complainant, as well as indicated the latter’s address on the last page thereof as "RTC
Branch 275, Las Piñas City." The CA also noted that there was proper service of the petition as
required by the rules since the petitioner was able to file her comment thereon. A copy thereof,
attached as Annex "L" in the instant petition, bears a mark that the comment was duly received by
the Prosecution Staff, Docket Section of the DOJ. Moreover, a computer verification requested by
the petitioner showed that the prosecutor assigned to the case had received a copy of the
petitioner’s comment. 17

As to the charge of extrinsic fraud, which consists of the alleged suppression of Agbayani's
Comment and the unauthorized insertion of documents in the records of the case with the DOJ, we
agree with the CA that this is a serious charge, especially if made against the Undersecretary of
Justice; and in order for it to prosper, it must be supported by clear and convincing evidence.
However, petitioner Agbayani's only proof is her bare claim that she personally checked the records
and found that her Comment was missing and 36 new documents had been inserted. This matter
was readily brought to the attention of Undersecretary Pineda by petitioner Agbayani in her motion
for reconsideration, who however must surely have found such contention without merit, and thus
denied the motion. 18

Section 5 of the 2000 NPS Rules on Appeal also provides that the petition for review must be
accompanied by a legible duplicate original or certified true copy of the resolution appealed from,
together with legible true copies of the complaint, affidavits or sworn statements and other evidence
submitted by the parties during the preliminary investigation or reinvestigation. Petitioner Agbayani
does not claim that she was never furnished, during the preliminary investigation, with copies of the
alleged inserted documents, or that any of these documents were fabricated. In fact, at least seven
(7) of these documents were copies of her own submissions to the investigating
prosecutor. Presumably, the DOJ required respondent Genabe to submit additional documents
19 

produced at the preliminary investigation, along with Document Nos. 40 and 41, for a fuller
consideration of her petition for review.

As for Document Nos. 40 and 41, which were dated a day after the filing of the petition, Section 5 of
the 2000 NPS Rules on Appeal provides that if an Information has been filed in court pursuant to the
appealed resolution, a copy of the Motion to Defer Proceedings must also accompany the petition.
Section 3 of the above Rules states that an appeal to the DOJ must be taken within fifteen (15) days
from receipt of the resolution or of the denial of the motion for reconsideration. While it may be
presumed that the motion to defer arraignment accompanying the petition should also be filed within
the appeal period, respondent Genabe can not actually be faulted if the resolution thereof was made
after the lapse of the period to appeal.

In Guy vs. Asia United Bank, a motion for reconsideration from the resolution of the Secretary of
20 

Justice, which was filed four (4) days beyond the "non-extendible period of ten (10) days", was
allowed under Section 13 of the 2000 NPS Rules on Appeal. The Supreme Court held that the
authority of the Secretary of Justice to review and order the withdrawal of an Information in instances
where he finds the absence of a prima facie case is not time-barred, albeit subject to the approval of
the court, if its jurisdiction over the accused has meanwhile attached. We further explained:
21 

[I]t is not prudent or even permissible for a court to compel the Secretary of Justice or the fiscal, as
the case may be, to prosecute a proceeding originally initiated by him on an information, if he finds
that the evidence relied upon by him is insufficient for conviction. Now, then, if the Secretary of
Justice possesses sufficient latitude of discretion in his determination of what constitutes probable
cause and can legally order a reinvestigation even in those extreme instances where an information
has already been filed in court, is it not just logical and valid to assume that he can take cognizance
of and competently act on a motion for reconsideration, belatedly filed it might have been, dealing
with probable cause? And is it not a grievous error on the part of the CA if it virtually orders the filing
of an information, as here, despite a categorical statement from the Secretary of Justice about the
lack of evidence to proceed with the prosecution of the petitioner? The answer to both posers should
be in the affirmative. As we said in Santos v. Go:
"[C]ourts cannot interfere with the discretion of the public prosecutor in evaluating the offense
charged. He may dismiss the complaint forthwith, if he finds the charge insufficient in form or
substance, or without any ground. Or, he may proceed with the investigation if the complaint in his
view is sufficient and in proper form. The decision whether to dismiss a complaint or not, is
dependent upon the sound discretion of the prosecuting fiscal and, ultimately, that of the Secretary
of Justice. Findings of the Secretary of Justice are not subject to review unless made with grave
abuse of discretion.

xxx

[T]o strike down the April 20, 2006 DOJ Secretary's Resolution as absolutely void and without effect
whatsoever, as the assailed CA decision did, for having been issued after the Secretary had
supposedly lost jurisdiction over the motion for reconsideration subject of the resolution may be
reading into the aforequoted provision a sense not intended. For, the irresistible thrust of the
assailed CA decision is that the DOJ Secretary is peremptorily barred from taking a second hard
look at his decision and, in appropriate cases, reverse or modify the same unless and until a motion
for reconsideration is timely interposed and pursued. The Court cannot accord cogency to the
posture assumed by the CA under the premises which, needless to stress, would deny the DOJ the
authority to motu proprio undertake a review of his own decision with the end in view of protecting, in
line with his oath of office, innocent persons from groundless, false or malicious prosecution. As the
Court pointed out in Torres, Jr. v. Aguinaldo, the Secretary of Justice would be committing a serious
dereliction of duty if he orders or sanctions the filing of an information based upon a complaint where
he is not convinced that the evidence warrants the filing of the action in court. (Citations omitted and
22 

underscoring supplied)

The Court further stated in Guy that when the DOJ Secretary took cognizance of the petitioner's
motion for reconsideration, he "effectively excepted such motion from the operation of the
aforequoted Section 13 of DOJ Circular No. 70, s. 2000. This show of liberality is, to us, within the
competence of the DOJ Secretary to make. The Court is not inclined to disturb the same absent
compelling proof, that he acted out of whim and that petitioner was out to delay the proceedings to
the prejudice of respondent in filing the motion for reconsideration."23

The case of First Women's Credit Corporation v. Perez, succinctly summarizes the general rules
24 

relative to criminal prosecution: that criminal prosecution may not be restrained or stayed by
injunction, preliminary or final, albeit in extreme cases, exceptional circumstances have been
recognized; that courts follow the policy of non-interference in the conduct of preliminary
investigations by the DOJ, and of leaving to the investigating prosecutor sufficient latitude of
discretion in the determination of what constitutes sufficient evidence as will establish probable
cause for the filing of an information against a supposed offender; and, that the court's duty in an
appropriate case is confined to a determination of whether the assailed executive or judicial
determination of probable cause was done without or in excess of jurisdiction or with grave abuse of
discretion amounting to want of jurisdiction.

But while prosecutors are given sufficient latitude of discretion in the determination of probable
cause, their findings are still subject to review by the Secretary of Justice. Surely, this power of the
Secretary of Justice to review includes the discretion to accept additional evidence from the
investigating prosecutor or from herein respondent Genabe, evidence which nonetheless appears to
have already been submitted to the investigating prosecutor but inadvertently omitted by her when
she filed her petition.

3. Coming now to the DOJ's finding that the complaint fails to state a cause of action, the CA held
that the DOJ committed no grave abuse of discretion in causing the dismissal thereof on the ground
of non-compliance with the provisions of the Local Government Code of 1991, on the Katarungang
Pambarangay conciliation procedure.

Undeniably, both petitioner Agbayani and respondent Genabe are residents of Las Piñas City and
both work at the RTC, and the incident which is the subject matter of the case happened in their
workplace. Agbayani’s complaint should have undergone the mandatory barangay conciliation for
25 

possible amicable settlement with respondent Genabe, pursuant to Sections 408 and 409 of
Republic Act No. 7160 or the Local Government Code of 1991 which provide:

Sec. 408. Subject Matter for Amicable Settlement; Exception thereto. – The lupon of each barangay
shall have authority to bring together the parties actually residing in the same city or municipality for
amicable settlement of all disputes, except: x x x

Sec. 409. Venue. x x x (d) Those arising at the workplace where the contending parties are
employed or x x x shall be brought in the barangay where such workplace or institution is located.

Administrative Circular No. 14-93, issued by the Supreme Court on July 15, 1993 states that:
26 
 xxx

I. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang
Pambarangay Law [formerly P.D. 1508, repealed and now replaced by Secs. 399-422, Chapter VII,
Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local Government
Code of 1991], and prior recourse thereto is a pre-condition before filing a complaint in court or any
government offices, except in the following disputes:

[1] Where one party is the government, or any subdivision or instrumentality thereof;

[2] Where one party is a public officer or employee and the dispute relates to the
performance of his official functions;

[3] Where the dispute involves real properties located in different cities and municipalities,
unless the parties thereto agree to submit their difference to amicable settlement by an
appropriate Lupon;

[4] Any complaint by or against corporations, partnerships or juridical entities, since only
individuals shall be parties to Barangay conciliation proceedings either as complainants or
respondents [Sec. 1, Rule VI, Katarungang Pambarangay Rules];

[5] Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an appropriate Lupon;

[6] Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one
[1] year or a fine of over five thousand pesos ([₱]5,000.00);

[7] Offenses where there is no private offended party;

[8] Disputes where urgent legal action is necessary to prevent injustice from being committed
or further continued, specifically the following:

[a] Criminal cases where accused is under police custody or detention [See Sec.
412(b)(1), Revised Katarungang Pambarangay Law];

[b] Petitions for habeas corpus by a person illegally deprived of his rightful custody
over another or a person illegally deprived of or on acting in his behalf;

[c] Actions coupled with provisional remedies such as preliminary injunction,

attachment, delivery of personal property and support during the pendency of the
action; and

[d] Actions which may be barred by the Statute of Limitations.

[9] Any class of disputes which the President may determine in the interest of justice or upon
the recommendation of the Secretary of Justice;

[10] Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) [Secs.
46 & 47, R. A. 6657];

[11] Labor disputes or controversies arising from employer-employee relations [Montoya vs.
Escayo, 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and
exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to
certain offices of the Department of Labor and Employment];

[12] Actions to annul judgment upon a compromise which may be filed directly in court [See
Sanchez vs. [Judge] Tupaz, 158 SCRA 459]."

xxx

The compulsory process of arbitration is a pre-condition for the filing of the complaint in court. Where
the complaint (a) did not state that it is one of excepted cases, or (b) it did not allege prior availment
of said conciliation process, or (c) did not have a certification that no conciliation had been reached
by the parties, the case should be dismissed. 27

Here, petitioner Agbayani failed to show that the instant case is not one of the exceptions
enumerated above. Neither has she shown that the oral defamation caused on her was so grave as
to merit a penalty of more than one year. Oral defamation under Article 358 of the Revised Penal
Code, as amended, is penalized as follows:

"Article 358. Slander. – Oral defamation shall be punished by arresto mayor in its maximum period
to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise, the
penalty shall be arresto menor or a fine not exceeding 200 pesos."

Apparently, the DOJ found probable cause only for slight oral defamation. As defined in Villanueva
v. People, oral defamation or slander is the speaking of base and defamatory words which tend to
28 

prejudice another in his reputation, office, trade, business or means of livelihood. It is grave slander
when it is of a serious and insulting nature. The gravity depends upon: (1) the expressions used; (2)
the personal relations of the accused and the offended party; and (3) the special circumstances of
the case, the antecedents or relationship between the offended party and the offender, which may
tend to prove the intention of the offender at the time. In particular, it is a rule that uttering
defamatory words in the heat of anger, with some provocation on the part of the offended party
constitutes only a light felony.
29

We recall that in the morning of December 27, 2006 when the alleged utterances were made,
Genabe was about to punch in her time in her card when she was informed that she had been
suspended for failing to meet her deadline in a case, and that it was Agbayani who informed the
presiding judge that she had missed her deadline when she left to attend a convention in Baguio
City, leaving Agbayani to finish the task herself. According to Undersecretary Pineda, the confluence
of these circumstances was the immediate cause of respondent Genabe's emotional and
psychological distress. We rule that his determination that the defamation was uttered while the
respondent was in extreme excitement or in a state of passion and obfuscation, rendering her
offense of lesser gravity than if it had been made with cold and calculating deliberation, is beyond
the ambit of our review. The CA concurred that the complained utterances constituted only slight
30 

oral defamation, having been said in the heat of anger and with perceived provocation from
Agbayani. Respondent Genabe was of a highly volatile personality prone to throw fits (sumpongs),
who thus shared a hostile working environment with her co-employees, particularly with her
superiors, Agbayani and Hon. Bonifacio Sanz Maceda, the Presiding Judge of Branch 275, whom
she claimed had committed against her "grievous acts that outrage moral and social conduct." That
there had been a long-standing animosity between Agbayani and Genabe is not denied.

4. Lastly, petitioner Agbayani insists that the DOJ should have dismissed respondent Genabe's
petition for review outright pursuant to Sections 5 and 6 of DOJ Circular No. 70. It is true that the
general rule in statutory construction is that the words "shall," "must," "ought," or "should" are words
of mandatory character in common parlance and in their in ordinary signification, yet, it is also well-
31 

recognized in law and equity as a not absolute and inflexible criterion. Moreover, it is well to be
32 

reminded that DOJ Circular No. 70 is a mere tool designed to facilitate, not obstruct, the attainment
of justice through appeals taken with the National Prosecution Service. Thus, technical rules of
procedure like those under Sections 5 and 6 thereof should be interpreted in such a way to promote,
not frustrate, justice.

Besides, Sections 7 and 10 of DOJ Circular No. 70 clearly give the Secretary of Justice, or the
Undersecretary in his place, wide latitude of discretion whether or not to dismiss a petition. Section 6
of DOJ Circular No. 70, invoked by petitioner Agbayani, is clearly encompassed within this authority,
as shown by a cursory reading of Sections 7 and 10, to wit:

SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he
finds the same to be patently without merit or manifestly intended for delay, or when the issues
raised therein are too unsubstantial to require consideration.

SECTION 12. Disposition of the appeal. The Secretary may reverse, affirm or modify the appealed
resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the
following grounds:

– That the petition was filed beyond the period prescribed in Section 3 hereof;

– That the procedure or any of the requirements herein provided has not been complied with;

– That there is no showing of any reversible error;

– That the appealed resolution is interlocutory in nature, except when it suspends the
proceedings based on the alleged existence of a prejudicial question;

– That the accused had already been arraigned when the appeal was taken;

– That the offense has already prescribed; and

 – That other legal or factual grounds exist to warrant a dismissal.

We reiterate what we have stated in Yao v. Court of Appeals that: 33 

In the interest of substantial justice, procedural rules of the most mandatory character in terms of
compliance, may be relaxed.  In other words, if strict adherence to the letter of the law would result
1âwphi1

in absurdity and manifest injustice, or where the merit of a party's cause is apparent and outweighs
consideration of non-compliance with certain formal requirements, procedural rules should definitely
be liberally construed. A party-litigant is to be given the fullest opportunity to establish the merits of
his complaint or defense rather than for him to lose life, liberty, honor or property on mere
technicalities. (Citations omitted)
34 

All told, we find that the CA did not commit reversible error in upholding the Resolution dated May
17, 2007 of the DOJ as we, likewise, find the same to be in accordance with law and jurisprudence.

WHEREFORE, premises considered, the petition for review is hereby DENIED. Accordingly, the

Decision dated March 27, 2008 and the Resolution dated July 3, 2008 of the Court of Appeals in CA-
G.R. SP No. 99626 are AFFIRMED in toto.

SO ORDERED.

[G.R. No. 192565 : February 28, 2012]

UNION BANK OF THE, PHILIPPINES AND DESI TOMAS, PETITIONERS, VS.

PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

BRION, J.:

We review in this Rule 45 petition, the decision[1] of the Regional Trial Court, Branch 65,
Makati City (RTC-Makati City) in Civil Case No. 09-1038. The petition seeks to reverse
and set aside the RTC-Makati City decision dismissing the petition for certiorari of
petitioners Union Bank of the Philippines (Union Bank) and Desi Tomas (collectively, the
petitioners).  The RTC found that the Metropolitan Trial Court, Branch 63, Makati City
(MeTC-Makati City) did not commit any grave abuse of discretion in denying the motion
to quash the information for perjury filed by Tomas. cralaw

The Antecedents

Tomas was charged in court for perjury under Article 183 of the Revised Penal Code
(RPC) for making a false narration in a Certificate against Forum Shopping. The
Information against her reads:

That on or about the 13th day of March 2000 in the City of Makati, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously make untruthful
statements under oath upon a material matter before a competent person authorized to
administer oath which the law requires to wit: said accused stated in the
Verification/Certification/Affidavit of merit of a complaint for sum of money with prayer
for a writ of replevin docketed as [Civil] Case No. 342-00 of the Metropolitan Trial
Court[,] Pasay City, that the Union Bank of the Philippines has not commenced any
other action or proceeding involving the same issues in another tribunal or agency,
accused knowing well that said material statement was false thereby making a willful
and deliberate assertion of falsehood.[2]

The accusation stemmed from petitioner Union Bank’s two (2) complaints for sum of
money with prayer for a writ of replevin against the spouses Eddie and Eliza
Tamondong and a John Doe. The first complaint, docketed as Civil Case No. 98-0717,
was filed before the RTC, Branch 109, Pasay City on April 13, 1998. The second
complaint, docketed as Civil Case No. 342-000, was filed on March 15, 2000 and
raffled to the MeTC, Branch 47, Pasay City.  Both complaints showed that Tomas
executed and signed the Certification against Forum Shopping. Accordingly, she was
charged of deliberately violating Article 183 of the RPC by falsely declaring under oath
in the Certificate against Forum Shopping in the second complaint that she did not
commence any other action or proceeding involving the same issue in another tribunal
or agency.
Tomas filed a Motion to Quash,[3]  citing two grounds. First, she argued that the venue
was improperly laid since it is the Pasay City court (where the Certificate against Forum
Shopping was submitted and used) and not the MeTC-Makati City (where the Certificate
against Forum Shopping was subscribed) that has jurisdiction over the perjury case.
Second, she argued that the facts charged do not constitute an offense because: (a) 
the  third element of perjury – the willful and deliberate assertion of falsehood – was
not alleged with particularity without specifying what the other action or proceeding
commenced involving the same issues in another tribunal or agency; (b) there was no
other action or proceeding pending in another court when the second complaint was
filed; and (c) she was charged with perjury by giving false testimony while the
allegations in the Information make out perjury by making a false affidavit.

The MeTC-Makati City denied the Motion to Quash, ruling that it has jurisdiction over
the case since the Certificate against Forum Shopping was notarized in Makati City.
[4]
 The MeTC-Makati City also ruled that the allegations in the Information sufficiently
charged Tomas with perjury.[5] The MeTC-Makati City subsequently denied Tomas’
motion for reconsideration.[6]

The petitioners filed a petition for certiorari before the RTC-Makati City to annul and set
aside the MeTC-Makati City orders on the ground of grave abuse of discretion. The
petitioners anchored their petition on the rulings in United States v. Canet[7] and
Ilusorio v. Bildner[8] which ruled that venue and jurisdiction should be in the place
where the false document was presented.

The Assailed RTC Decision

In dismissing the petition for certiorari, the RTC-Makati City held:

[I]nsofar as the petitioner’s stance is concerned[,] the more recent case of [Sy Tiong
Shiou v. Sy] (GR Nos. 174168 & 179438, March 30, 2009) however, reaffirms what has
been the long standing view on the venue with respect to perjury cases. In this
particular case[,] the high court reiterated the rule that the criminal action shall be
instituted and tried in the court of the municipality or territory where the offense was
committed, or where any of its essential ingredients occurred. It went on to declare
that since the subject document[,] the execution of which was the subject of the
charge[,] was subscribed and sworn to in Manila[,] then the court of the said territorial
jurisdiction was the proper venue of the criminal action[.]

xxxx

x x x Given the present state of jurisprudence on the matter, it is not amiss to state
that the city court of Makati City has jurisdiction to try and decide the case for perjury
inasmuch as the gist of the complaint itself which constitute[s] the charge against the
petitioner dwells solely on the act of subscribing to a false certification. On the
other hand, the charge against the accused in the case of Ilusorio v. Bildner, et al.,
based on the complaint-affidavits therein[,] was not simply the execution of the
questioned documents but rather the introduction of the false evidence through the
subject documents before the court of Makati City.[9] (emphasis ours)

The RTC-Makati City ruled that the MeTC-Makati City did not commit grave abuse of
discretion since the order denying the Motion to Quash was based on jurisprudence
later than Ilusorio. The RTC-Makati City also observed that the facts in Ilusorio are
different from the facts of the present case. Lastly, the RTC-Makati City ruled that the
Rule 65 petition was improper since the petitioners can later appeal the decision in the
principal case. The RTC-Makati City subsequently denied the petitioner’s motion for
reconsideration.[10]

The Petition

The petitioners pray that we reverse the RTC-Makati City decision and quash the
Information for perjury against Tomas. The petitioners contend that the Ilusorio ruling
is more applicable to the present facts than our ruling in Sy Tiong Shiou v. Sy Chim.[11] 
They argued that the facts in Ilusorio showed that the filing of the petitions in court
containing the false statements was the essential ingredient  that consummated the
perjury.  In Sy Tiong, the perjurious statements were made in a General Information
Sheet (GIS) that was submitted to the Securities and Exchange Commission (SEC).
Interestingly, Solicitor General Jose Anselmo I. Cadiz shared the petitioners’ view. In
his Manifestation and Motion in lieu of Comment (which we hereby treat as the
Comment to the petition), the Solicitor General also relied on Ilusorio and opined that
the lis mota in the crime of perjury is the deliberate or intentional giving of false
evidence in the court where the evidence is material. The Solicitor General observed
that the criminal intent to assert a falsehood under oath only became manifest before
the MeTC-Pasay City.

The Issue

The case presents to us the issue of what the proper venue of perjury under Article 183
of the RPC should be – Makati City, where the Certificate against Forum Shopping was
notarized, or Pasay City, where the Certification was presented to the trial court.

The Court’s Ruling

We deny the petition and hold that the MeTC-Makati City is the proper venue
and the proper court to take cognizance of the perjury case against the
petitioners.

Venue of Action and Criminal Jurisdiction

Venue is an essential element of jurisdiction in criminal cases. It determines not only

the place where the criminal action is to be instituted, but also the court that has the
jurisdiction to try and hear the case.  The reason for this rule is two-fold. First, the
jurisdiction of trial courts is limited to well-defined territories such that a trial court can
only hear and try cases involving crimes committed within its territorial jurisdiction.
[12]
 Second, laying the venue in the locus criminis is grounded on the necessity and
justice of having an accused on trial in the municipality of province where witnesses
and other facilities for his defense are available.[13]

Unlike in civil cases, a finding of improper venue in criminal cases carries

jurisdictional consequences. In determining the venue where the criminal action is
to be instituted and the court which has jurisdiction over it, Section 15(a), Rule 110 of
the 2000 Revised Rules of Criminal Procedure provides:

(a)    Subject to existing laws, the criminal action shall be instituted and tried in the
court or municipality or territory where the offense was committed or where any
of its essential ingredients occurred. [emphasis ours]

The above provision should be read in light of Section 10, Rule 110 of the 2000 Revised
Rules of Criminal Procedure which states:

Place of commission of the offense. – The complaint or information is sufficient if it can

be understood from its allegations that the offense was committed or some of its
essential ingredients occurred at some place within the jurisdiction of the court, unless
the particular place where it was committed constitutes an essential element of the
offense charged or is necessary for its identification.

Both provisions categorically place the venue and jurisdiction over criminal cases not
only in the court where the offense was committed, but also where any of its essential
ingredients took place.  In other words, the venue of action  and  of  jurisdiction  are 
deemed sufficiently alleged where the Information states that the offense was
committed or some of its essential ingredients occurred at a place within the territorial
jurisdiction of the court.

Information Charging Perjury

Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended, contains the
requirement for a Certificate against Forum Shopping. The Certificate against Forum
Shopping can be made either by a statement under oath in the complaint or initiatory
pleading asserting a claim or relief; it may also be in a sworn certification annexed to
the complaint or initiatory pleading. In both instances, the affiant is required to execute
a statement under oath before a duly commissioned notary public or any competent
person authorized to administer oath that: (a) he or she has not theretofore
commenced any action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his or her knowledge, no such other
action or claim is pending therein;  (b) if there is such other pending action or claim, a
complete statement of the present status thereof; and (c) if he or she should thereafter
learn that the same or similar action or claim has been filed or is pending, he or she
shall report that fact within five days therefrom to the court wherein his or her
aforesaid complaint or initiatory pleading has been filed. In relation to the crime of
perjury, the material matter in a Certificate against Forum Shopping is the truth of the
required declarations which is designed to guard against litigants pursuing simultaneous
remedies in different fora.[14]

In this case, Tomas is charged with the crime of perjury under Article 183 of the RPC
for making a false Certificate against Forum Shopping. The elements of perjury under
Article 183 are:

(a)  That the accused made a statement under oath or executed an affidavit upon
a material matter.

(b)  That the statement or affidavit was made before a competent officer, authorized to

receive and administer oath.

(c)   That in the statement or affidavit, the accused made a willful and deliberate
assertion of a falsehood.

(d)  That the sworn statement or affidavit containing the falsity is required by law or
made for a legal purpose.[15]  (emphasis ours)

Where the jurisdiction of the court is being assailed in a criminal case on the ground of
improper venue, the allegations in the complaint and information must be examined
together with Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure.
On this basis, we find that the allegations in the Information sufficiently support a
finding that the crime of perjury was committed by Tomas within the territorial
jurisdiction of the MeTC-Makati City.

The first element of the crime of perjury, the execution of the subject Certificate
against Forum Shopping was alleged in the Information to have been committed in
Makati City. Likewise, the second and fourth elements, requiring the Certificate against
Forum Shopping to be under oath before a notary public, were also sufficiently alleged
in the Information to have been made in Makati City:

That on or about the 13th day of March 2000 in the City of Makati, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously make untruthful
statements under oath upon a material matter before a competent person authorized to
administer oath which the law requires to wit: said accused stated in the
Verification/Certification/Affidavit x x x.[16]

We also find that the third element of willful and deliberate falsehood was also
sufficiently alleged to have been committed in Makati City, not Pasay City, as indicated
in the last portion of the Information:

[S]aid accused stated in the Verification/Certification/Affidavit of merit of a complaint

for sum of money with prayer for a writ of replevin docketed as [Civil] Case No. 342-00
of the Metropolitan Trial Court[,] Pasay City, that the Union Bank of the Philippines has
not commenced any other action or proceeding involving the same issues in another
tribunal or agency, accused knowing well that said material statement was
false thereby making a willful and deliberate assertion of falsehood.[17] (underscoring
ours)

Tomas’ deliberate and intentional assertion of falsehood was allegedly shown when she
made the false declarations in the Certificate against Forum Shopping before a notary
public in Makati City, despite her knowledge that the material statements she
subscribed and swore to were not true.   Thus, Makati City is the proper venue and
MeTC-Makati City is the proper court to try the perjury case against Tomas, pursuant to
Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure as all the
essential elements constituting the crime of perjury were committed within the
territorial jurisdiction of Makati City, not Pasay City.
Referral to the En Banc

The present case was referred to the En Banc primarily to address the seeming conflict
between the division rulings of the Court in the Ilusorio case that is cited as basis of
this petition, and the Sy Tiong case that was the basis of the assailed RTC-Makati City
ruling.

The Cited Ilusorio and Sy Tiong Cases

The subject matter of the perjury charge in Ilusorio involved false statements

contained in verified petitions filed with the court for the issuance of a new owner’s
duplicate copies of certificates of title. The verified petitions containing the false
statements were subscribed and sworn to in Pasig City, but were filed in Makati City
and Tagaytay City. The question posed was: which court (Pasig City, Makati City and/or
Tagaytay City) had jurisdiction to try and hear the perjury cases?

We ruled that the venues of the action were in Makati City and Tagaytay City, the
places where the verified petitions were filed.  The Court reasoned out that it was only
upon filing that the intent to assert an alleged falsehood became manifest and where
the alleged untruthful statement found relevance or materiality. We cited as
jurisprudential authority the case of United States. v. Cañet[18] which ruled:

It is immaterial where the affidavit was subscribed and sworn, so long as it appears
from the information that the defendant, by means of such affidavit, "swore to" and
knowingly submitted false evidence, material to a point at issue in a judicial proceeding
pending in the Court of First Instance of Iloilo Province. The gist of the offense charged
is not the making of the affidavit in Manila, but the intentional giving of false evidence
in the Court of First Instance of Iloilo Province by means of such affidavit. [emphasis
and underscoring deleted]

In Sy Tiong, the perjured statements were made in a GIS which was subscribed and
sworn to in Manila. We ruled that the proper venue for the perjury charges was in
Manila where the GIS was subscribed and sworn to. We held that the perjury was
consummated in Manila where the false statement was made. As supporting
jurisprudence, we cited the case of Villanueva v. Secretary of Justice[19] that, in turn,
cited an American case entitled U.S. v. Norris.[20]  We ruled in Villanueva that –

Perjury is an obstruction of justice; its perpetration well may affect the dearest
concerns of the parties before a tribunal. Deliberate material falsification under oath
constitutes the crime of perjury, and the crime is complete when a witness' statement
has once been made.

The Crime of Perjury: A Background 

To have a better appreciation of the issue facing the Court, a look at the historical
background of how the crime of perjury (specifically, Article 183 of the RPC) evolved in
our jurisdiction.

The RPC penalizes three forms of false testimonies.  The first is false testimony for and
against the defendant in a criminal case (Articles 180 and 181, RPC); the second is
false testimony in a civil case (Article 182, RPC); and the third is false testimony in
other cases (Article 183, RPC).  Based on the Information filed, the present case
involves the making of an untruthful statement in an affidavit on a material matter.

These RPC provisions, however, are not really the bases of the rulings cited by the
parties in their respective arguments.  The cited Ilusorio ruling, although issued by this
Court in 2008, harked back to the case of Cañet which was decided in 1915, i.e., before
the present RPC took effect.[21] Sy Tiong, on the other hand, is a 2009 ruling that
cited Villanueva, a 2005 case that in turn cited United States v. Norris, a 1937
American case.  Significantly, unlike Canet, Sy Tiong is entirely based on rulings
rendered after the present RPC took effect.[22]

The perjurious act in Cañet consisted of an information charging perjury through

the presentation in court of a motion accompanied by a false sworn affidavit. At the
time the Cañet ruling was rendered, the prevailing law on perjury and the rules on
prosecution of criminal offenses were found in Section 3, Act No. 1697 of the Philippine
Commission, and in Subsection 4, Section 6 of General Order No. 58[23] for the
procedural aspect.

Section 3 of Act No. 1697 reads:

Sec. 3. Any person who, having taken oath before a competent tribunal, officer, or
person, in any case in which a law of the Philippine Islands authorizes an oath to be
administered, that he will testify, declare, depose, or certify truly, or that any written
testimony, declaration, disposition, or certificate by him subscribed is true, willfully and
contrary to such oath states or subscribes any material matter which he does not
believe to be true, is guilty of perjury, and shall be punished by a fine of not more than
two thousand pesos and by imprisonment for not more than five years; and shall
moreover, thereafter be incapable of holding any public office or of giving testimony in
any court of the Philippine Islands until such time as    the judgment against him is
reversed.

This law was copied, with the necessary changes, from Sections 5392[24] and 5393[25] of
the Revised Statutes of the United States.[26]  Act No. 1697 was intended to make the
mere execution of a false affidavit punishable in our jurisdiction.[27]

In turn, Subsection 4, Section 6 of General Order No. 58 provided that the venue shall
be the court of the place where the crime was committed.

As applied and interpreted by the Court in Cañet, perjury was committed by the act
of representing a false document in a judicial proceeding.[28] The venue of action was
held by the Court to be at the place where the false document was presented since the
presentation was the act that consummated the crime.

The annotation of Justices Aquino and Griño-Aquino in their textbook on the

RPC[29] interestingly explains the history of the perjury provisions of the present RPC
and traces as well the linkage between Act No. 1697 and the present Code.  To quote
these authors:[30]

Art. 180 was taken from art. 318 of the Old Penal Code and art. 154 of Del Pan’s
Proposed Correctional Code, while art. 181 was taken from art. 319 of the old Penal
Code and Art. 157 of Del Pan’s Proposed Correctional Code.  Said arts. 318 and 319,
together with art. 321 of the old Penal Code, were impliedly repealed by Act 1697, the
Perjury Law, passed on August 23, 1907, which in turn was expressly repealed by the
Administrative Code of 1916, Act 2657.  In view of the express repeal of Act 1697, arts.
318 and 321 of the old Penal Code were deemed revived.  However, Act 2718 expressly
revived secs. 3 and 4 of the Perjury Law.  Art. 367 of the Revised Penal Code repealed
Act Nos. 1697 and 2718.

It should be noted that perjury under Acts 1697 and 2718 includes false testimony,
whereas, under the Revised Penal Code, false testimony includes perjury.  Our law on
false testimony is of Spanish origin, but our law on perjury (art. 183 taken from sec. 3
of Act 1697) is derived from American statutes.  The provisions of the old Penal Code
on false testimony embrace perjury committed in court or in some contentious
proceeding, while perjury as defined in Act 1697 includes the making of a false
affidavit.  The provisions of the Revised Penal Code on false testimony “are more severe
and strict than those of Act 1697” on perjury. [italics ours]

With this background, it can be appreciated that Article 183 of the RPC which provides:

The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period shall be imposed upon any person, who knowingly makes untruthful
statements and not being included in the provisions of the next preceding articles,
shall testify under oath, or make an affidavit, upon any material matter before a
competent person authorized to administer an oath in cases in which the law so
requires. [emphasis supplied; emphases ours]

in fact refers to either of two punishable acts – (1) falsely testifying under oath in a
proceeding other than a criminal or civil case; and (2) making a false affidavit before a
person authorized to administer an oath on any material matter where the law requires
an oath.
As above discussed, Sy Tiong – decided under Article 183 of the RPC – essentially
involved perjured statements made in a GIS that was subscribed and sworn to in Manila
and submitted to the SEC in Mandaluyong City.  Thus, the case involved the making of
an affidavit, not an actual testimony in a proceeding that is neither criminal nor civil.
From this perspective, the situs of the oath, i.e., the place where the oath was taken, is
the place where the offense was committed.  By implication, the proper venue would
have been the City of Mandaluyong – the site of the SEC – had the charge involved an
actual testimony made before the SEC.

In contrast, Cañet involved the presentation in court of a motion supported and

accompanied by an affidavit that contained a falsity. With  Section 3 of Act No. 1697 as
basis, the issue related to the submission of the affidavit in a judicial proceeding.  This
came at a time when Act No. 1697 was the perjury law, and made no distinction
between judicial and other proceedings, and at the same time separately penalized the
making of false statements under oath (unlike the present RPC which separately deals
with false testimony in criminal, civil and other proceedings, while at the same time
also penalizing the making of false affidavits).  Understandably, the venue should be
the place where the submission was made to the court or the situs of the court; it could
not have been the place where the affidavit was sworn to simply because this was not
the offense charged in the Information.

The case of Ilusorio cited the Cañet case as its authority, in a situation where the sworn
petitions filed in court for the issuance of duplicate certificates of title (that were
allegedly lost) were the cited sworn statements to support the charge of perjury for the
falsities stated in the sworn petitions.  The Court ruled that the proper venue should be
the Cities of Makati and Tagaytay because it was in the courts of these cities “where the
intent to assert an alleged falsehood became manifest and where the alleged untruthful
statement finds relevance or materiality in deciding the issue of whether new owner’s
duplicate copies of the [Certificate of Condominium Title] and [Transfer Certificates of
Title] may issue.”[31] To the Court, “whether the perjurious statements contained in the
four petitions were subscribed and sworn in Pasig is immaterial, the gist of the offense
of perjury being the intentional giving of false statement,”[32] citing Cañet as authority
for its statement.

The statement in Ilusorio may have partly led to the present confusion on venue
because of its very categorical tenor in pointing to the considerations to be made in the
determination of venue; it leaves the impression that the place where the oath was
taken is not at all a material consideration, forgetting that Article 183 of the RPC clearly
speaks of two situations while Article 182 of the RPC likewise applies to false testimony
in civil cases.

The Ilusorio statement would have made perfect sense had the basis for the charge
been Article 182 of the RPC, on the assumption that the petition itself constitutes a
false testimony in a civil case.  The Cañet ruling would then have been completely
applicable as the sworn statement is used in a civil case, although no such distinction
was made under Cañet because the applicable law at the time (Act No. 1697) did not
make any distinction.

If Article 183 of the RPC were to be used, as what in fact appears in the Ilusorio ruling,
then only that portion of the article, referring to the making of an affidavit, would have
been applicable as the other portion refers to false testimony in other
proceedings which a judicial petition for the issuance of a new owner’s duplicate copy of
a Certificate of Condominium Title is not because it is a civil proceeding in court.  As a
perjury based on the making of a false affidavit, what assumes materiality is the site
where the oath was taken as this is the place where the oath was made, in this case,
Pasig City.

Procedurally, the rule on venue of criminal cases has been subject to various changes
from the time General Order No. 58 was replaced by Rules 106 to 122 of the Rules of
Court on July 1, 1940. Section 14, Rule 106 of the Rules of Court provided for the rule
on venue of criminal actions and it expressly included, as proper venue, the place
where any one of the essential ingredients of the crime took place.  This change was
followed by the passage of the 1964 Rules of Criminal Procedure,[33] the 1985 Rules of
Criminal Procedure,[34] and the 2000 Revised Rules of Criminal Procedure which all
adopted the 1940 Rules of Criminal Procedure’s expanded venue of criminal actions. 
Thus, the venue of criminal cases is not only in the place where the offense was
committed, but also where any of its essential ingredients took place.
In the present case, the Certification against Forum Shopping was made integral parts
of two complaints for sum of money with prayer for a writ of replevin against the
respondent spouses Eddie Tamondong and Eliza B. Tamondong, who, in turn, filed a
complaint-affidavit against Tomas for violation of Article 183 of the RPC.  As alleged in
the Information that followed, the criminal act charged was for the execution by
Tomas of an affidavit that contained a falsity.

Under the circumstances, Article 183 of the RPC is indeed the applicable provision;
thus, jurisdiction and venue should be determined on the basis of this article which
penalizes one who “make[s] an affidavit, upon any material matter before a competent
person authorized to administer an oath in cases in which the law so requires.” The
constitutive act of the offense is the making of an affidavit; thus, the criminal act
is consummated when the statement containing a falsity is subscribed and sworn before
a duly authorized person.

Based on these considerations, we hold that our ruling in Sy Tiong is more in accord
with Article 183 of the RPC and Section 15(a), Rule 110 of the 2000 Revised Rules of
Criminal Procedure. To reiterate for the guidance of the Bar and the Bench, the crime of
perjury committed through the making of a false affidavit under Article 183 of the RPC
is committed at the time the affiant subscribes and swears to his or her affidavit since it
is at that time that all the elements of the crime of perjury are executed.  When the
crime is committed through false testimony under oath in a proceeding that is neither
criminal nor civil, venue is at the place where the testimony under oath is given.  If in
lieu of or as supplement to the actual testimony made in a proceeding that is neither
criminal nor civil, a written sworn statement is submitted, venue may either be at the
place where the sworn statement is submitted or where the oath was taken as the
taking of the oath and the submission are both material ingredients of the crime
committed. In all cases, determination of venue shall be based on the acts alleged in
the Information to be constitutive of the crime committed. cralaw

WHEREFORE, premises considered, we hereby DENY the petition for lack of merit. 

Costs against the petitioners.

SO ORDERED.

G.R. No. 190293               March 20, 2012

PHILIP SIGFRID A. FORTUN and ALBERT LEE G. ANGELES, Petitioners,

vs.
GLORIA MACAPAGAL-ARROYO, as Commander-in-Chief and President of the Republic of
the Philippines, EDUARDO ERMITA, Executive Secretary, ARMED FORCES OF THE
PHILIPPINES (AFP), or any of their units, PHILIPPINE NATIONAL POLICE (PNP), or any of
their units, JOHN DOES and JANE DOES acting under their direction and
control, Respondents.

x-----------------------x

G.R. No. 190294

DIDAGEN P. DILANGALEN, Petitioner,
vs.
EDUARDO R. ERMITA in his capacity as Executive Secretary, NORBERTO GONZALES in his
capacity as Secretary of National Defense, RONALDO PUNO in his capacity as Secretary of
Interior and Local Government, Respondents.

x-----------------------x

G.R. No. 190301

NATIONAL UNION OF PEOPLES' LAWYERS (NUPL) SECRETARY GENERAL NERI JAVIER

COLMENARES, BAYAN MUNA REPRESENTATIVE SATUR C. OCAMPO, GABRIELA WOMEN'S
PARTY REPRESENTATIVE LIZA L. MAZA, ATTY. JULIUS GARCIA MATIBAG, ATTY. EPHRAIM
B. CORTEZ, ATTY. JOBERT ILARDE PAHILGA, ATTY. VOLTAIRE B. AFRICA, BAGONG
ALYANSANG MAKABAYAN (BAYAN) SECRETARY GENERAL RENATO M. REYES, JR. and
ANTHONY IAN CRUZ, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, EXECUTIVE SECRETARY EDUARDO R.
ERMITA, ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL VICTOR S.
IBRADO, PHILIPPINE NATIONAL POLICE DIRECTOR GENERAL JESUS A. VERZOSA,
DEPARTMENT OF JUSTICE SECRETARY AGNES VST DEVANADERA, ARMED FORCES OF
THE PHILIPPINES EASTERN MINDANAO COMMAND CHIEF LIEUTENANT GENERAL
RAYMUNDO B. FERRER, Respondents.

x-----------------------x

G.R. No. 190302

JOSEPH NELSON Q. LOYOLA, Petitioner,

vs.
HER EXCELLENCY PRESIDENT GLORIA MACAPAGAL-ARROYO, ARMED FORCES CHIEF OF
STAFF GENERAL VICTOR IBRADO, PHILIPPINE NATIONAL POLICE (PNP), DIRECTOR
GENERAL JESUS VERZOSA, EXECUTIVE SECRETARY EDUARDO ERMITA, Respondents.

x-----------------------x

G.R. No. 190307

JOVITO R. SALONGA, RAUL C. PANGALANGAN, H. HARRY L. ROQUE, JR., JOEL R.

BUTUYAN, EMILIO CAPULONG, FLORIN T. HILBAY, ROMEL R. BAGARES, DEXTER DONNE
B. DIZON, ALLAN JONES F. LARDIZABAL and GILBERT T. ANDRES, suing as taxpayers and
as CONCERNED Filipino citizens, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in his (sic) capacity as President of the Republic of the
Philippines, HON. EDUARDO ERMITA, JR., in his capacity as Executive Secretary, and HON.
ROLANDO ANDAYA in his capacity as Secretary of the Department of Budget and
Management, GENERAL VICTOR IBRADO, in his capacity as Armed Forces of the Philippines
Chief of Staff, DIRECTOR JESUS VERZOSA, in his capacity as Chief of the Philippine National
Police, Respondents.

x-----------------------x

G.R. No. 190356

BAILENG S. MANTAWIL, DENGCO SABAN, Engr. OCTOBER CHIO, AKBAYAN PARTY LIST
REPRESENTATIVES WALDEN F. BELLO and ANA THERESIA HONTIVEROS-BARAQUEL,
LORETTA ANN P. ROSALES, MARVIC M.V.F. LEONEN, THEODORE O. TE and IBARRA M.
GUTIERREZ III, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY
OF BUDGET AND MANAGEMENT, and THE CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL
POLICE, Respondents.

x-----------------------x

G.R. No. 190380

CHRISTIAN MONSOD and CARLOS P. MEDINA, JR., Petitioners,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

DECISION

ABAD, J.:

These cases concern the constitutionality of a presidential proclamation of martial law and
suspension of the privilege of habeas corpus in 2009 in a province in Mindanao which were
withdrawn after just eight days.

The Facts and the Case

The essential background facts are not in dispute. On November 23, 2009 heavily armed men,
believed led by the ruling Ampatuan family, gunned down and buried under shoveled dirt 57
innocent civilians on a highway in Maguindanao. In response to this carnage, on November 24
President Arroyo issued Presidential Proclamation 1946, declaring a state of emergency in
Maguindanao, Sultan Kudarat, and Cotabato City to prevent and suppress similar lawless violence in
Central Mindanao.

Believing that she needed greater authority to put order in Maguindanao and secure it from large
groups of persons that have taken up arms against the constituted authorities in the province, on
December 4, 2009 President Arroyo issued Presidential Proclamation 1959 declaring martial law
and suspending the privilege of the writ of habeas corpus in that province except for identified areas
of the Moro Islamic Liberation Front.

Two days later or on December 6, 2009 President Arroyo submitted her report to Congress in
accordance with Section 18, Article VII of the 1987 Constitution which required her, within 48 hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
to submit to that body a report in person or in writing of her action.

In her report, President Arroyo said that she acted based on her finding that lawless men have taken
up arms in Maguindanao and risen against the government. The President described the scope of
the uprising, the nature, quantity, and quality of the rebels’ weaponry, the movement of their heavily
armed units in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan
Municipal Hall, Datu Unsay Municipal Hall, and 14 other municipal halls, and the use of armored
vehicles, tanks, and patrol cars with unauthorized "PNP/Police" markings.

On December 9, 2009 Congress, in joint session, convened pursuant to Section 18, Article VII of the
1987 Constitution to review the validity of the President’s action. But, two days later or on December
12 before Congress could act, the President issued Presidential Proclamation 1963, lifting martial
law and restoring the privilege of the writ of habeas corpus in Maguindanao.

Petitioners Philip Sigfrid A. Fortun and the other petitioners in G.R. 190293, 190294,
190301,190302, 190307, 190356, and 190380 brought the present actions to challenge the
constitutionality of President Arroyo’s Proclamation 1959 affecting Maguindanao. But, given the
prompt lifting of that proclamation before Congress could review it and before any serious question
affecting the rights and liberties of Maguindanao’s inhabitants could arise, the Court deems any
review of its constitutionality the equivalent of beating a dead horse.

Prudence and respect for the co-equal departments of the government dictate that the Court should
be cautious in entertaining actions that assail the constitutionality of the acts of the Executive or the
Legislative department. The issue of constitutionality, said the Court in Biraogo v. Philippine Truth
Commission of 2010, must be the very issue of the case, that the resolution of such issue is
1 

unavoidable.

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of
the writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty to
review and validate or invalidate the same. The pertinent provisions of Section 18, Article VII of the
1987 Constitution state:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without any need of a call.

xxxx

Although the above vests in the President the power to proclaim martial law or suspend the privilege
of the writ of habeas corpus, he shares such power with the Congress. Thus:

1. The President’s proclamation or suspension is temporary, good for only 60 days;

 2. He must, within 48 hours of the proclamation or suspension, report his action in person or
in writing to Congress;

3. Both houses of Congress, if not in session must jointly convene within 24 hours of the
proclamation or suspension for the purpose of reviewing its validity; and

4. The Congress, voting jointly, may revoke or affirm the President’s proclamation or
suspension, allow their limited effectivity to lapse, or extend the same if Congress deems
warranted.

It is evident that under the 1987 Constitution the President and the Congress act in tandem in
exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus.
They exercise the power, not only sequentially, but in a sense jointly since, after the President has
initiated the proclamation or the suspension, only the Congress can maintain the same based on its
own evaluation of the situation on the ground, a power that the President does not have.

Consequently, although the Constitution reserves to the Supreme Court the power to review the
sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the
Court must allow Congress to exercise its own review powers, which is automatic rather than
initiated. Only when Congress defaults in its express duty to defend the Constitution through such
review should the Supreme Court step in as its final rampart. The constitutional validity of the
President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political
question in the hands of Congress before it becomes a justiciable one in the hands of the Court.

Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had
in fact convened, could act on the same. Consequently, the petitions in these cases have become
moot and the Court has nothing to review. The lifting of martial law and restoration of the privilege of
the writ of habeas corpus in Maguindanao was a supervening event that obliterated any justiciable
controversy. 2

Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the
privilege of the writ of habeas corpus in just eight days, they have not been meaningfully
implemented. The military did not take over the operation and control of local government units in
Maguindanao. The President did not issue any law or decree affecting Maguindanao that should
ordinarily be enacted by Congress. No indiscriminate mass arrest had been reported. Those who
were arrested during the period were either released or promptly charged in court. Indeed, no
petition for habeas corpus had been filed with the Court respecting arrests made in those eight days.
The point is that the President intended by her action to address an uprising in a relatively small and
sparsely populated province. In her judgment, the rebellion was localized and swiftly disintegrated in
the face of a determined and amply armed government presence.

In Lansang v. Garcia, the Court received evidence in executive session to determine if President
3 

Marcos’ suspension of the privilege of the writ of habeas corpus in 1971 had sufficient factual basis.
In Aquino, Jr. v. Enrile, while the Court took judicial notice of the factual bases for President Marcos’
4 

proclamation of martial law in 1972, it still held hearings on the petitions for habeas corpus to
determine the constitutionality of the arrest and detention of the petitioners. Here, however, the
Court has not bothered to examine the evidence upon which President Arroyo acted in issuing
Proclamation 1959, precisely because it felt no need to, the proclamation having been withdrawn
within a few days of its issuance.

Justice Antonio T. Carpio points out in his dissenting opinion the finding of the Regional Trial Court
(RTC) of Quezon City that no probable cause exist that the accused before it committed rebellion in
Maguindanao since the prosecution failed to establish the elements of the crime. But the Court
cannot use such finding as basis for striking down the President’s proclamation and suspension.
For, firstly, the Court did not delegate and could not delegate to the RTC of Quezon City its power to
determine the factual basis for the presidential proclamation and suspension. Secondly, there is no
showing that the RTC of Quezon City passed upon the same evidence that the President, as
Commander-in-Chief of the Armed Forces, had in her possession when she issued the proclamation
and suspension.

The Court does not resolve purely academic questions to satisfy scholarly interest, however
intellectually challenging these are. This is especially true, said the Court in Philippine Association of
5 

Colleges and Universities v. Secretary of Education, where the issues "reach constitutional
6 

dimensions, for then there comes into play regard for the court’s duty to avoid decision of
constitutional issues unless avoidance becomes evasion." The Court’s duty is to steer clear of
declaring unconstitutional the acts of the Executive or the Legislative department, given the
assumption that it carefully studied those acts and found them consistent with the fundamental law
before taking them. "To doubt is to sustain." 7
Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only 30 days from the
filing of an appropriate proceeding to review the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus. Thus –

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days
from its filing. (Emphasis supplied)

More than two years have passed since petitioners filed the present actions to annul Proclamation
1959.  When the Court did not decide it then, it actually opted for a default as was its duty, the
1âwphi1

question having become moot and academic.

Justice Carpio of course points out that should the Court regard the powers of the President and
Congress respecting the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus as sequential or joint, it would be impossible for the Court to exercise its power of
review within the 30 days given it.

But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without
pre-empting congressional action. Section 18, Article VII, requires the President to report his actions
to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the
Congress is required to convene without need of a call within 24 hours following the President’s
proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the
Congress. Whatever form that action takes, therefore, should give the Court sufficient time to fulfill
its own mandate to review the factual basis of the proclamation or suspension within 30 days of its
issuance.

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or
suspension within the short time expected of it, then the Court can step in, hear the petitions
challenging the President’s action, and ascertain if it has a factual basis. If the Court finds none, then
it can annul the proclamation or the suspension. But what if the 30 days given it by the Constitution
proves inadequate? Justice Carpio himself offers the answer in his dissent: that 30-day period does
not operate to divest this Court of its jurisdiction over the case. The settled rule is that jurisdiction
once acquired is not lost until the case has been terminated.

The problem in this case is that the President aborted the proclamation of martial law and the
suspension of the privilege of the writ of habeas corpus in Maguindanao in just eight days. In a real
sense, the proclamation and the suspension never took off. The Congress itself adjourned without
touching the matter, it having become moot and academic.

Of course, the Court has in exceptional cases passed upon issues that ordinarily would have been
regarded as moot. But the present cases do not present sufficient basis for the exercise of the power
of judicial review. The proclamation of martial law and the suspension of the privilege of the writ of
habeas corpus in this case, unlike similar Presidential acts in the late 60s and early 70s, appear
more like saber-rattling than an actual deployment and arbitrary use of political power.

WHEREFORE, the Court DISMISSES the consolidated petitions on the ground that the same have
become moot and academic.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice
 MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 147-148.
1 

See Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308, 319.
2 

149 Phil. 547 (1971).

3 

158-A Phil. 1 (1974).

4 

Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426 (1998).
5 

97 Phil. 806, 811 (1955), citing Rice v. Sioux City, U.S. Sup. Ct. Adv. Rep., May 23, 1955,
6 

Law Ed., Vol. 99, p. 511.

Board of Optometry v. Colet, 328 Phil. 1187, 1207 (1996), citing Drilon v. Lim, G.R. No.
7 

112497, August 4, 1994, 235 SCRA 135, 140.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

I dissent.

The Cases

These are consolidated petitions for the writs of certiorari and prohibition challenging the
constitutionality of Presidential Proclamation No. 1959, which declared a state of martial law and
suspended the privilege of the writ of habeas corpus in the Province of Maguindanao, except for
identified areas of the Moro Islamic Liberation Front.

The Antecedents

In the morning of 23 November 2009, fifty-seven (57) innocent civilians met their tragic and untimely
death in a gruesome massacre unequaled in recent history,1 considered to be the Philippines’ worst
case of election-related violence. Brutally killed were female family members of then Buluan Vice
Mayor Esmael "Toto" Mangudadatu (Mangudadatu), including his wife and sisters, and members of
the press who were part of a convoy on the way to Shariff Aguak in Maguindanao. Mangudadatu’s
wife was bringing with her Mangudadatu’s certificate of candidacy for Governor of Maguindanao for
filing with the Provincial Office of the Commission on Elections in Shariff Aguak. Five of the victims
were not part of the convoy but happened to be traveling on the same highway.2

In its Consolidated Comment dated 14 December 2009, the Office of the Solicitor General (OSG),
representing public respondents, narrated the harrowing events which unfolded on that fateful day of
23 November 2009, to wit:

xxxx

3. Vice Mayor Mangudadatu confirmed having received reports that his political rivals
(Ampatuans) were planning to kill him upon his filing of a certificate of candidacy (COC) for
the gubernatorial seat in Maguindanao. Believing that the presence of women and media
personalities would deter any violent assault, he asked his wife and female relatives to file
his COC and invited several media reporters to cover the event.

4. At around 10 a.m., the convoy stopped at a designated PNP checkpoint along the
highway of Ampatuan, Maguindanao manned by the Maguindanao 1508th Provincial Mobile
Group, particularly, Eshmail Canapia and Takpan Dilon. While at a stop, they were
approached by about one hundred (100) armed men. The armed men pointed their weapons
at the members of the 1508th Provincial Mobile Group manning the check point, and
threatened them to refrain from interfering. The members of the convoy were then ordered to
alight from their vehicles and to lie face down on the ground, as the armed men forcibly took
their personal belongings. Subsequently, all members of the convoy were ordered to board
their vehicles. They were eventually brought by the armed men to the hills in Barangay
Masalay, Ampatuan, about 2.5 kilometers from the checkpoint.

5. At about the same time, Vice Mayor Mangudadatu received a call from his wife Genelyn
who, in a trembling voice, told him that a group of more or less 100 armed men stopped their
convoy, and that Datu Unsay Mayor Andal Ampatuan, Jr. was walking towards her, and was
about to slap her face. After those last words were uttered, the phone line went dead and her
cellphone could not be contacted any longer. Alarmed that his wife and relatives, as well as
the media personalities were in grave danger, Vice Mayor Mangudadatu immediately
reported the incident to the Armed Forces of the Philippines.

6. In the afternoon of the same day, soldiers – aboard two army trucks led by Lt. Col.
Rolando Nerona, Head of the Philippine Army’s 64th Infantry Battalion – went to the town of
Ampatuan to confirm the report. At around 3 p.m., they passed by the checkpoint along the
highway in Ampatuan manned by the 1508th Provincial Mobile Group and asked whether
they were aware of the reported abduction. Members of the 1508th Provincial Mobile Group
denied having knowledge of what they have witnessed at around 10 in the morning
purportedly out of fear of retaliation from the powerful Ampatuan clan. Nevertheless, P/CI
Sukarno Adil Dicay, the head of the Mobile Group, instructed P/INSP Diongon to accompany
the military on foot patrol as they conduct their operation relative to the reported abduction.

7. Upon reaching Barangay Masalay, Ampatuan, the soldiers on foot patrol found dead
bodies, bloodied and scattered on the ground and inside the four (4) vehicles used by the
convoy. Three (3) newly covered graves and a back hoe belonging to the Maguindanao
Provincial Government parked nearby with its engine still running were found at the site.
When the graves were dug up by the soldiers, twenty four (24) dead bodies were found in
the first grave; six (6) dead bodies with three (3) vehicles, particularly a Toyota Vios with the
seal of the Tacurong City Government, a Tamaraw FX and an L300 owned by the media
outfit UNTV were found in the second grave; and five (5) more dead bodies were recovered
from the third grave, yielding 35 buried dead bodies and, together with other cadavers,
resulted in a total of fifty seven (57) fatalities.

8. x x x

9. Examination of the bodies revealed that most, if not all, of the female victims’ pants were
found unzipped, and their sexual organs mutilated and mangled. Five (5) of them were
tested positive for traces of semen, indicative of sexual abuse while some of the victims were
shot in the genital area. The genitalia of Genelyn Mangudadatu was lacerated four (4) times,
and blown off by a gun fire, and her body horrifyingly mutilated. Two of the women killed
were pregnant, while another two were lawyers. Twenty-nine (29) of the casualties were
media personnel. Almost all gun shot injuries were on the heads of the victims, rendering
them unrecognizable albeit two (2) bodies remain unidentified. Those found in the graves
 were coarsely lumped like trash, and some of the victims were found hogtied. All the dead
bodies bear marks of despicable torture, contempt and outrageous torment.3

A day after the carnage, on 24 November 2009, former President Gloria Macapagal-Arroyo
(President Arroyo) issued Proclamation No. 1946, declaring a state of emergency in the provinces of
Maguindanao and Sultan Kudarat, and in the City of Cotabato, "to prevent and suppress the
occurrence of similar other incidents of lawless violence in Central Mindanao." The full text of
Proclamation No. 1946 reads:

DECLARING A STATE OF EMERGENCY IN CENTRAL MINDANAO

WHEREAS, on November 23, 2009, several persons, including women and members of media were
killed in a violent incident which took place in Central Mindanao;

WHEREAS, there is an urgent need to prevent and suppress the occurrence of similar other
incidents of lawless violence in Central Mindanao;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim,
as follows:

SECTION 1. The Provinces of Maguindanao and Sultan Kudarat and the City of
Cotabato are hereby placed under a state of emergency for the purpose of
preventing and suppressing lawless violence in the aforesaid jurisdiction.

SECTION 2. The Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP) are hereby ordered to undertake such measures as may be allowed by
the Constitution and by law to prevent and suppress all incidents of lawless violence
in the said jurisdiction.

SECTION 3. The state of emergency covering the Provinces of Maguindanao and

Sultan Kudarat and the City of Cotabato shall remain in force and effect until lifted or
withdrawn by the President.4

On 4 December 2009, President Arroyo issued Proclamation No. 1959, declaring martial law and
suspending the privilege of the writ of habeas corpus (writ) in the Province of Maguindanao, except
for the identified areas of the Moro Islamic Liberation Front (MILF). The full text of Proclamation No.
1959, signed by President Arroyo and attested by Executive Secretary Eduardo Ermita, reads:

PROCLAMATION NO. 1959

PROCLAIMING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE

WRIT OF HABEAS CORPUS IN THE PROVINCE OF MAGUINDANAO, EXCEPT FOR CERTAIN
AREAS

WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring a state of
emergency in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the
purpose of preventing and suppressing lawless violence in the aforesaid areas;

WHEREAS, Section 18, Art.VII of the Constitution provides that "x x x In case of invasion or
rebellion, when the public safety requires it, (the President) may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof
under martial law. x x x"

WHEREAS, R.A. No. 69865 provides that the crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose of x x x depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives."

WHEREAS, heavily armed groups in the province of Maguindanao have established positions to
resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce
the laws of the land and to maintain public order and safety;

WHEREAS, the condition of peace and order in the province of Maguindanao has deteriorated to the
extent that the local judicial system and other government mechanisms in the province are not
functioning, thus endangering public safety;

WHEREAS, the Implementing Operational Guidelines of the GRP-MILF Agreement on the General
Cessation of Hostilities dated 14 November 1997 provides that the following is considered a
prohibited hostile act: "x x x establishment of checkpoints except those necessary for the GRP’s
enforcement and maintenance of peace and order; and, for the defense and security of the MILF in
their identified areas, as jointly determined by the GRP and MILF. x x x"

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim,
as follows:

SECTION 1. There is hereby declared a state of martial law in the province of

Maguindanao, except for the identified areas of the Moro Islamic Liberation Front as
referred to in the Implementing Operational Guidelines of the GRP-MILF Agreement
on the General Cessation of Hostilities.

SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended
in the aforesaid area for the duration of the state of martial law.6

On 6 December 2009, President Arroyo submitted her Report to Congress in accordance with the
provision in Section 18, Article VII of the 1987 Constitution, which states that "within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to the Congress." In her Report, President
Arroyo presented the following justifications for imposing martial law and suspending the writ in
Maguindanao, to wit:

Pursuant to the provision of Section 18, Article VII of the 1987 Constitution, the President of the
Republic of the Philippines is submitting the hereunder Report relative to Proclamation No. 1959
"Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in
the Province of Maguindanao, except for Certain Areas," which she issued on 04 December 2009,
as required by public safety, after finding that lawless elements have taken up arms and
committed public uprising against the duly constituted government and against the people of
Maguindanao, for the purpose of removing from the allegiance to the Government or its laws,
the Province of Maguindanao, and likewise depriving the Chief Executive of her powers and
prerogatives to enforce the laws of the land and to maintain public order and safety, to the
great damage, prejudice and detriment of the people in Maguindanao and the nation as a
whole.

xxx

The capture of identified leader Mayor Andal Ampatuan, Jr. would have resulted in the expeditious
apprehension and prosecution of all others involved in the gruesome massacre, but the situation
proved the contrary. The Ampatuan group backed by formidable group of armed followers, have
since used their strength and political position to deprive the Chief Executive of her power to enforce
the law and to maintain public order and safety. More importantly, a separatist group based in
Maguindanao has joined forces with the Ampatuans for this purpose. These are the facts:

1. Local government offices in the province of Maguindanao were closed and ranking local
government officials refused to discharge their functions, which hindered the investigation
and prosecution team from performing their tasks;

2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death
certificates of the victims purportedly upon the orders of Andal Ampatuan Sr.;

3. The local judicial system has been crippled by the absence or non-appearance of judges
of local courts, thereby depriving the government of legal remedies in their prosecutorial
responsibilities (i.e. issuance of warrants of searches, seizure and arrest). While the
Supreme Court has designated an Acting Presiding Judge from another province, the normal
judicial proceedings could not be carried out in view of threats to their lives or safety,
prompting government to seek a change of venue of the criminal cases after informations
have been filed.

Duly verified information disclosed that the Ampatuan group is behind the closing down of
government offices, the refusal of local officials to discharge their functions and the simultaneous
absence or non-appearance of judges in local courts.

Detailed accounts pertaining to the rebel armed groups and their active movements in Maguindanao
have been confirmed:

I. As of November 29, 2009, it is estimated that there are about 2,413 armed combatants
coming from the municipalities of Shariff Aguak, Datu Unsay, Datu Salibo, Mamasapano,
 Datu Saudi Ampatuan (Dikalungan), Sultan Sa Barungis, Datu Piang, Guindulungan, and
Talayan, who are in possession of around 2,000 firearms/armaments.

II. The Ampatuan group has consolidated a group of rebels consisting of 2,413 heavily
armed men, with 1,160 of them having been strategically deployed in Maguindanao.
Validated information on the deployment of rebels are as follows:

I. Around five hundred (500) armed rebels with 2 "Sanguko" armored vehicles are in
offensive position in the vicinity of Kakal, Ampatuan, Dimampao, Mamasapano and
Sampao Ampatuan.

II. A group with more or less 200 armed rebels has moved from Old Maganoy into an
offensive position.

III. More or less 80 fully armed rebels remain in Tuka, Mamasapano.

IV. More or less 50 fully armed rebels led by a former MNLF Commander are in
offensive position in Barangay Baital, Rajah Buayan.

V. More or less 70 fully armed rebels with two (2) M60 LMG remain in offensive
position in the vicinity of Barangay Kagwaran, Barangay Iginampong, Datu Unsay
(right side of Salvo-General Santos City national highway).

VI. More or less 60 fully armed rebels with four (4) M60 LMG remain in offensive
position in the vicinity of Kinugitan, the upper portion of Barangay Maitumaig, Datu
Unsay.

VII. Kagui Akmad Ampatuan was sighted in Sultan Sa Barongis with 400 armed
rebels. Locals heard him uttered "PATAYAN NA KUNG PATAYAN."

VIII. More or less 100 armed rebels led by one of the identified leaders in the
massacre have been sighted at the quarry of Barangay Lagpan, boundary of Rajah
Buayan and Sultan Sa Barongis. The group is armed with one (1) 90RR, one (1) cal
50 LMG, two (2) cal 30 LMG, two (2) 60 mm mortar and assorted rifles.

The strength of the rebels is itself estimated to be around 800 with about 2,000 firearms (Fas).
These forces are concentrated in the following areas in Maguindanao which are apparently also their
political stronghold:

xxx

The existence of this armed rebellion is further highlighted by the recent recovery of high powered
firearms and ammunitions from the 400 security escorts of Datu Andal Ampatuan Sr.

xxx

Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed
rebels in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan
Municipal Hall, Datu Unsay Municipal Hall, and fourteen other municipal halls, and the use of
armored vehicles, tanks and patrol cars with unauthorized "PNP/Police" markings, all
together confirm the existence of armed public uprising for the political purpose of:

1. removing allegiance from the national government of the Province of Maguindanao; and,

2. depriving the Chief Executive of her powers and prerogatives to enforce the laws of the
land and to maintain public order and safety.

While the government is at present conducting legitimate operations to address the on-going
rebellion, public safety still requires the continued implementation of martial law and the
suspension of the privilege of the writ of habeas corpus in the Province of Maguindanao until
the time that such rebellion is completely quelled.7 (Emphasis supplied)

In the meantime, the present petitions were filed impugning the constitutionality of Proclamation No.
1959.

1. G.R. No. 190293 is a petition "for the issuance of a temporary restraining order and writs
of prohibition and preliminary prohibitory injunction (1) to declare Proclamation No. 1959 or
 any act, directive or order arising from or connected to it as unconstitutional, and (2) to enjoin
public respondents from further enforcing the same."

2. G.R. No. 190294 is a petition for certiorari assailing the constitutionality of Proclamation
No. 1959 "for gross insufficiency of the factual basis in proclaiming a state of martial law and
suspending the [writ] in the Province of Maguindanao." It prayed for the issuance of a writ of
prohibition under Section 2 of Rule 65 to enjoin and prohibit respondents from enforcing
Proclamation No. 1959.

3. G.R. No. 190301 is a petition seeking "the nullification of Proclamation No. 1959,
proclaiming a state of martial law and suspending the [writ] in the province of Maguindanao,
except for certain areas, as it is patently illegal and unconstitutional for lack of any factual
basis."

4. G.R. No. 190302 is a petition for certiorari to declare Proclamation No. 1959 as null and
void for being unconstitutional, and for prohibition to enjoin respondents from further actions
or proceedings in enforcing or implementing Proclamation No. 1959.

5. G.R. No. 190307 is a petition for certiorari, prohibition, and mandamus with a prayer for a
preliminary prohibitory injunction and/or a temporary restraining order, and/or a petition for
review pursuant to Article VII, Section 18, paragraph 3 of the 1987 Constitution, asking the
Court to declare that then Executive Secretary Eduardo Ermita committed grave abuse of
discretion amounting to lack or excess of jurisdiction when he signed, in the name of
President Arroyo, Proclamation No. 1959. The petition also prayed for the issuance of a
Temporary Restraining Order and/or preliminary prohibitory injunction, prohibiting
respondents, and anyone acting under their authority, stead, or behalf, from implementing
Proclamation No. 1959 during the pendency of the case.

6. G.R. No. 190356 is a petition for prohibition, with an application for the issuance of a
temporary restraining order and/or a writ of preliminary injunction, assailing the
constitutionality and the sufficiency of the factual basis of Proclamation No. 1959, declaring a
state of martial law in the province of Maguindanao (except for identified areas of the MILF)
and suspending the writ in the same area.

7. G.R. No. 190380 is a petition for certiorari assailing the validity of Proclamation No. 1959,
declaring a state of martial law in the province of Maguindanao, except for the identified
areas of the MILF, and suspending the writ in the same area.

On 9 December 2009, Congress convened in joint session pursuant to Section 18, Article VII of the
1987 Constitution, which provides, "The Congress, if not in session, shall, within twenty-four hours
following such proclamation [of martial law] or suspension [of the writ], convene in accordance with
its rules without need of a call."

Meanwhile, eight days after the declaration of martial law, on 12 December 2009, President Arroyo
issued Proclamation No. 1963 lifting martial law and restoring the writ in Maguindanao. The full text
of Proclamation No. 1963, signed by President Arroyo and attested by Executive Secretary Eduardo
Ermita, reads:

PROCLAMATION NO. 1963

PROCLAIMING THE TERMINATION OF THE STATE OF MARTIAL LAW AND THE

RESTORATION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE PROVINCE
OF MAGUINDANAO

WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring a state of
emergency in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the
purpose of preventing and suppressing lawless violence in the aforesaid areas;

WHEREAS, by virtue of the powers granted under Section 18, Article VII of the Constitution, the
President of the Philippines promulgated Proclamation No. 1959 on December 4, 2009, proclaiming
a state of martial law and suspending the privilege of the writ of Habeas Corpus in the province of
Maguindanao, except for certain areas;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported
that over six hundred (600) persons who allegedly rose publicly and took up arms against the
Government have surrendered or have been arrested or detained;
WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported
that the areas where heavily armed groups in the province of Maguindanao established positions to
resist government troops have been cleared;

WHEREAS, the court and prosecutors’ offices of Cotabato City have resumed normal working hours,
paving the way for the criminal justice system in Maguindanao to be restored to normalcy;

WHEREAS, the Vice-Governor of the Autonomous Region of Muslim Mindanao has assumed as
Acting Governor, paving the way for the restoration of the functioning of government mechanisms in
the province of Maguindanao;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby revoke
Proclamation No. 1959 and proclaim the termination of the state of martial law and the restoration of
the privilege of the writ of habeas corpus in the province of Maguindanao; provided that
Proclamation No. 1946 shall continue to be in force and effect.8

In the Resolutions dated 8 and 15 December 2009,9 the Court consolidated the petitions and
required the Office of the Solicitor General and the respondents to comment on the petitions.

In a Resolution dated 12 January 2010, the Court resolved "to appoint as amici curiae Justice
Vicente Mendoza, Senator Joker Arroyo, and Father Joaquin Bernas, [S.J.] and request them to
submit their respective Amicus Brief on the questions to be addressed by the parties."10

Meanwhile, on 9 December 2009, an Information for rebellion was filed before the Regional Trial
Court, Branch 15, Cotabato City (RTC-Cotabato), against Ampatuan, et al.11 The information reads:

That on or about 27th day of November, 2009, and continuously thereafter, until the present time, in
Maguindanao Province and within the jurisdiction of this Honorable Court, accused Datu Andal
Ampatuan, Sr., Datu Zaldy Uy Ampatuan, Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan and
Datu Sajid Islam Uy Ampatuan as heads of the rebellion, conspiring, confederating and cooperating
with each other, as well as with the other accused as participants or executing the commands of
others in the rebellion and also with other John Does whose whereabouts and identities are still
unknown, the said accused, who are heads of the rebellion, did then and there willfully, unlawfully
and feloniously help, support, promote, maintain, cause, direct and/or command their co-accused
who are their followers to rise publicly and take arms against the Republic of the Philippines, or
otherwise participate in such armed public uprising, for the purpose of removing allegiance to the
government or its laws, the territory of the Republic of the Philippines or any part thereof or depriving
the Chief Executive of any of her powers or prerogatives as in fact they have been massing up
armed men and organizing assemblies, as a necessary means to commit the crime of rebellion, and
in furtherance thereof, have then and there committed acts preventing public prosecutors from being
available to conduct inquest and preliminary investigations. There were massive formations of
numerous armed civilians supported by armored vehicles and under the command of the Ampatuans
who have formed a private army to resist government troops; that the local provincial government of
Maguindanao could not function with their employees going on mass leave and their respective
offices were closed and not functioning. The Regional Trial Courts of the area are not functioning,
refused to accept the application for search warrants for violation of PD 1866 to authorize the search
of the properties of the heads of the rebellion; and that there was undue delay in the issuance of
court processes despite the exigency of the situation.

CONTRARY TO LAW.12

On the next day, 10 December 2009, accused Ampatuan, et al. filed an Urgent Omnibus Motion,
which included a motion for judicial determination of probable cause for the offense charged. On the
same day, the Acting Presiding Judge of RTC-Cotabato issued an Order, stating that "the Court
needs time to go over the resolution finding probable cause against the accused Datu Andal
Ampatuan, Sr., [et al.]."

On 1 February 2010, the Regional Trial Court of Quezon City received the records of the case,
pursuant to the Supreme Court’s En Banc Resolution, dated 12 January 2010, which ordered the
transfer of venue of the rebellion case to Quezon City. The case, docketed as Criminal Case No. Q-
10-162667 and entitled People of the Philippines v. Datu Andal Ampatuan, Sr., et al., was raffled to
Branch 77 of the Regional Trial Court of Quezon City (RTC-Quezon City) on 2 February 2010.

On 3 February 2010, the accused filed an Urgent Motion praying for the issuance of an order
suspending the transfer of custody of all the accused pending the resolution of their motion for
judicial determination of probable cause.
On 26 March 2010, the RTC-Quezon City dismissed the charge of rebellion for lack of probable
cause, to wit:

After a careful and judicious scrutiny of the evidence forming part of the records and those adduced
by the prosecution during the hearing on the motion for judicial determination of probable cause, the
Court is convinced that there exist[s] no probable cause to hold under detention and to indict the
accused for rebellion.

xxxx

Rebellion under Article 134 of the Revised Penal Code is committed –

[B]y rising publicly and taking arms against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either –

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives.

xxxx

The essential element of public armed uprising against the government is lacking. There were no
masses or multitudes involving crowd action done in furtherance of a political end. So, even
assuming that there was uprising, there is no showing that the purpose of the uprising is political,
that is, to overthrow the duly constituted government in order to establish another form of
government. In other words, the second element is also absent.

xxxx

x x x It is quite interesting that the prosecution failed to present any particular instance where the
accused had directly or indirectly prevented government prosecutors from performing their job
relative to the prosecution of the suspects in the infamous Maguindanao massacre.

On the contrary, documentary evidence on record shows that the alleged principal suspect in the
mass killings, Datu Andal Ampatuan, Jr., was made to undergo inquest proceedings at General
Santos City, immediately after he was taken into custody by law enforcement authorities. This alone
belies the prosecution’s theory that the prosecutors were not available to conduct inquest and
preliminary investigations relative to the mass killings in the Municipality of Ampatuan, Province of
Maguindanao.

xxxx

x x x [T]he intelligence reports presented by the military and police are unfounded. The reports do
not suggest that the alleged armed groups loyal to the accused are initiating violent and hostile
actions, whether directly or indirectly, against government security forces. Even the discovery and
confiscation of large cache of firearm and ammunitions, allegedly belonging to the Ampatuans,
cannot be considered as an act of rebellion. In fact, the firearms and ammunitions were
subsequently unearthed, recovered and confiscated from different places. The government security
forces should have been able to engage and neutralize the reported armed groups on the basis of its
intelligence reports confirming their size, strength and whereabouts.

xxxx

The statements of prosecution witnesses Mangacop and Dingcong are general allegations. Their
statements do not show that the accused were responsible for the mass leave of officials and
employees of the local government units. There is no evidence to show that the accused actually
prevented the local officials and employees from reporting to their offices.

The evidence will show that the Department of Interior and Local Government and the Philippine
National Police closed down these offices, without any justifiable reasons. In fact, there were news
footages which showed that many employees were caught by surprise on the unexpected closure of
their offices.

xxxx

It is alleged in the Information that the courts were no longer functioning in Cotabato City and in
Maguindanao province, which have jurisdiction over the place of the commission of the massacre.
The factual circumstances, however, belie said allegation. This Court takes judicial notice of the fact
that no less than the Supreme Court of the Republic of the Philippines had denied the allegation that
civilian courts were or are no longer functioning in Maguindanao.

xxxx

WHEREFORE, premises considered, the Court finds that there exists no probable cause to indict
and hold under detention the accused for rebellion. Accordingly, the instant case is hereby
dismissed and the accused-movants are hereby ordered released from further detention, unless they
are held by a court of law for other lawful cause/s.

Let this Order be served personally upon the accused-movants, through the responsible officers of
the law having custody over them, who are hereby directed to release the accused from detention
immediately upon receipt hereof.

SO ORDERED.13

In an Order dated 28 May 2010, the RTC-Quezon City denied the prosecution’s motion for
reconsideration of the Order dated 26 March 2010.

The DOJ filed a petition for certiorari14 before the Court of Appeals assailing the dismissal of the
rebellion charges against accused Ampatuan, et al.

In a Decision promulgated on 15 December 2011,15 the Court of Appeals denied the petition for
certiorari. Quoting the findings of the RTC-Quezon City, the Court of Appeals held that there is no
probable cause as there is no showing that all the elements of the crime of rebellion are present.
The Court of Appeals stated that "a review of its own narration of events only lends to the belief that
the rebellion existed only in the minds of the complainants." The Court of Appeals ruled that there
was no armed public uprising, finding "no proof that armed groups were massing up and were
planning to instigate civil disobedience and to challenge the government authorities for political
ends."

The Issues

The crux of the present controversy is the constitutionality of Proclamation No. 1959, declaring
martial law and suspending the writ in Maguindanao. The threshold issue before this Court is
whether there is sufficient factual basis for the issuance of Proclamation No. 1959 based on the
stringent requirements set forth in Section 18, Article VII of the 1987 Constitution.

In its 15 December 2009 Resolution, the Court additionally posed the following questions for
resolution:

1. Whether the issuance of Proclamation No. 1963, lifting martial law and restoring the writ in
Maguindanao, rendered the issues raised in the present petitions moot and academic;

2. Whether the term "rebellion" in Section 18, Article VII of the 1987 Constitution has the
same meaning as the term "rebellion" that is defined in Article 134 of the Revised Penal
Code;

3. Whether the declaration of martial law or the suspension of the writ authorizes warrantless
arrests, searches and seizures;

4. Whether the declaration of martial law or the suspension of the writ is a joint and
sequential function of the President and Congress such that, without Congressional action
on the proclamation either affirming or revoking it, the President having in the meantime lifted
the declaration and restored the writ, this Court has nothing to review;
 5. If the constitutional power of this Court to review the factual basis of the declaration of
martial law or suspension of the writ can be exercised simultaneously with the constitutional
power of Congress to revoke the declaration or suspension, and the decision of this Court
conflicts with the decision of Congress, which decision shall prevail; and

6. Whether this Court’s determination of the sufficiency of the factual basis of the declaration
of martial law or suspension of the writ, which in the meantime has been lifted and restored,
respectively, would be essential to the resolution of issues concerning the validity of related
acts that the government committed during the time martial law was in force.

In its Comment Re: Resolution dated 15 December 2009, the OSG raised the issue of whether
petitioners possess legal standing to challenge the constitutionality of Proclamation No. 1959.

Discussion

I dissent from the majority's dismissal of the petitions as moot. I find Proclamation No. 1959
unconstitutional for lack of factual basis as required in Section 18, Article VII of the 1987 Constitution
for the declaration of martial law and suspension of the writ. The majority in effect refuses to
exercise this Court’s constitutional power in Section 18 of Article VII, to "review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law
or the suspension of the privilege of the writ or the extension thereof."

Before proceeding to the substantive issues, I shall first discuss the issue on locus standi.

In its Comment Re: Resolution dated 15 December 2009, the OSG questioned the legal standing of
petitioners in challenging the constitutionality of Proclamation No. 1959. The OSG argued that the
phrase "any citizen" in Section 18, Article VII of the 1987 Constitution must be read in conjunction
with the phrase "appropriate proceeding." Since petitioners deemed the original actions for certiorari
and prohibition as the appropriate proceeding referred to in Section 18, Article VII of the Constitution,
petitioners must satisfy the requirements under Rule 65 of the Rules of Court, one of which is the
institution of the action by the aggrieved party. The OSG pointed out that none of the petitioners
qualify as an aggrieved party.

This is error.

"Legal standing" or locus standi has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged.16 In case of a suit questioning the sufficiency of the factual basis of the
proclamation of martial law or suspension of the writ, such as here, Section 18, Article VII of the
Constitution expressly provides:

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty
days from its filing. (Emphasis supplied)

It is clear that the Constitution explicitly clothes "any citizen" with the legal standing to challenge the
constitutionality of the declaration of martial law or suspension of the writ. The Constitution does not
make any distinction as to who can bring such an action. As discussed in the deliberations of the
Constitutional Commission, the "citizen" who can challenge the declaration of martial law or
suspension of the writ need not even be a taxpayer.17 This was deliberately designed to arrest,
without further delay, the grave effects of an illegal declaration of martial law or suspension of the
writ, and to provide immediate relief to those aggrieved by the same. Accordingly, petitioners, being
Filipino citizens, possess legal standing to file the present petitions assailing the sufficiency of the
factual basis of Proclamation No. 1959.

Moreover, given the transcendental importance of the issues raised in the present petitions, the
Court may relax the standing requirement and allow a suit to prosper even where there is no direct
injury to the party claiming the right of judicial review.18 The Court has held:

Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:

‘x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they [involved] only an indirect and general
interest shared in common with the public. The Court dismissed the objection that they were not
proper parties and ruled that ‘transcendental importance to the public of these cases demands
that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.’ We have since then applied the exception in many other cases.19 (Emphasis supplied)

I.

Whether the issuance of Proclamation No. 1963,

lifting martial law and restoring the writ in the province of Maguindanao,
rendered the issues raised in the petitions moot and academic.

The majority dismisses the petitions on mootness, agreeing with respondents' contention that the
issuance of Proclamation No. 1963, lifting martial law and restoring the writ in the province of
Maguindanao, rendered the issues raised in the present petitions moot and academic. Respondents
maintain that the petitions have ceased to present an "actual case or controversy" with the lifting of
martial law and the restoration of the writ, the sufficiency of the factual basis of which is the subject
of these petitions. Proclamation No. 1963 is allegedly a "supervening event" that rendered of no
practical use or value the consolidated petitions.

As a rule, courts may exercise their review power only when there is an actual case or controversy,
which involves a conflict of legal claims susceptible of judicial resolution. Such a case must be
"definite and concrete, touching the legal relations of parties having conflicting legal interests;" a
real, as opposed to an imagined, controversy calling for a specific relief.20

Corollarily, courts generally decline jurisdiction over a moot and academic case or outrightly dismiss
it on the ground of mootness. A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that assuming jurisdiction over the same, and
eventually deciding it, would be of no practical use or value.21

In David v. Arroyo,22 this Court held that the "moot and academic" principle is not a magical formula
that automatically dissuades courts in resolving a case. Courts are not prevented from deciding
cases, otherwise moot and academic, if (1) there is a grave violation of the Constitution;23 (2) the
situation is of exceptional character and of paramount public interest;24 (3) the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public;25 and
(4) the case is capable of repetition yet evading review.26

In Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP),27 the Court ruled that once a suit is filed, the Court cannot automatically be
deprived of its jurisdiction over a case by the mere expedient of the doer voluntarily ceasing to
perform the challenged conduct. Otherwise, the doer would be dictating when this Court should
relinquish its jurisdiction over a case. Further, a case is not mooted when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the violation.28

Contrary to the majority opinion, the present petitions fall squarely under these exceptions, justifying
this Court’s exercise of its review power.

First, whether Proclamation No. 1959 complied with the requirements under Section 18,
Article VII of the Constitution is without doubt an extremely serious constitutional question. In
order to forestall any form of abuse in the exercise of the President’s extraordinary
emergency powers, as what happened during the Martial Law regime under former
President Ferdinand Marcos (President Marcos), the 1987 Constitution has carefully put in
place specific safeguards, which the President must strictly observe. Any declaration of
martial law or suspension of the writ falling short of the constitutional requirements must be
stricken down as a matter of constitutional duty by this Court.

Second, whether the President exercised her Commander-in-Chief powers in accordance

with the Constitution indisputably presents a transcendental issue fully imbued with public
interest. I agree with amicus curiae Father Joaquin Bernas’ opinion: "The practice of martial
rule can have a profoundly disturbing effect on the life, liberty and fortunes of people.
Likewise, the actions taken by the police and military during the period when martial law is in
effect can have serious consequences on fundamental rights."29

Third, the issue on the constitutionality of Proclamation No. 1959 unquestionably requires
formulation of controlling principles to guide the Executive, Legislature, and the public.

The President’s issuance of Proclamation No. 1959 generated strong reactions from various sectors
of society. This, of course, is an expected response from a nation whose painful memory of the dark
past remains fresh. The nation remembers that martial law was the vehicle of President Marcos to
seize unlimited State power, which resulted in gross and wanton violations of fundamental human
rights of the people. That era saw the collapse of the rule of law and what reigned supreme was a
one man-rule for the dictator’s own personal benefit.
The present controversy, being the first case under the 1987 Constitution involving the President’s
exercise of the power to declare martial law and suspend the writ, provides this Court with a rare
opportunity,30 which it must forthwith seize, to formulate controlling principles for the guidance of all
sectors concerned, most specially the Executive which is in charge of enforcing the emergency
measures. Dismissing the petitions on the ground of mootness will most certainly deprive the entire
nation of instructive and valuable principles on this extremely crucial national issue.

Fourth, the present case is capable of repetition yet evading review. I agree with Father Bernas’
view: "[H]istory clearly attests that the events that can lead to martial law, as well as the imposition of
martial law itself, and the suspension of the privilege together with actions taken by military and
police during a period of martial law are capable of repetition and are too important to allow to
escape review through the simple expedient of the President lifting a challenged proclamation."31

Fifth, the respondent’s or doer’s voluntary cessation of the questioned act does not by itself deprive
the Court of its jurisdiction once the suit is filed. In this case, President Arroyo, after eight days from
the issuance of Proclamation No. 1959, issued Proclamation No. 1963 revoking Proclamation No.
1959. President Arroyo’s lifting of martial law and restoration of the writ translate to a voluntary
cessation of the very acts complained of in the present petitions. However, the present petitions
were filed with this Court while Proclamation No. 1959 was still in effect and before Proclamation No.
1963 was issued, thus foreclosing any legal strategy to divest this Court of its jurisdiction by the
mere cessation or withdrawal of the challenged act.

Moreover, the fact that every declaration of martial law or suspension of the writ will involve its own
set of circumstances peculiar to the necessity of time, events or participants should not preclude this
Court from reviewing the President’s use of such emergency powers. Whatever are the
circumstances surrounding each declaration of martial law or suspension of the writ, the declaration
or suspension will always be governed by the same safeguards and limitations prescribed in the
same provisions of the Constitution. Failing to determine the constitutionality of Proclamation No.
1959 by dismissing the cases on the ground of mootness sets a very dangerous precedent to the
leaders of this country that they could easily impose martial law or suspend the writ without any
factual or legal basis at all, and before this Court could review such declaration, they would simply lift
the same and escape possible judicial rebuke.

II.

Whether the term "rebellion" in Section 18, Article VII of the 1987 Constitution has the same
meaning as the term "rebellion" that is
defined in Article 134 of the Revised Penal Code.

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968,32 defines the crime of
rebellion, thus:

Art. 134. Rebellion or insurrection; How committed. — The crime of rebellion or insurrection is

committed by rising publicly and taking arms against the Government for the purpose of removing
from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.

The Constitution, however, does not provide any definition of the term "rebellion." Portions of the first
paragraph of Section 18, Article VII of the Constitution, where the term "rebellion" appears, read:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law.

Respondents submit that the term "rebellion" must, "for constitutional law purposes, be applied in
such manner as to be amply responsive to the call of the times." Respondents point out that the
deliberations of the 1986 Constitutional Commission reveal that the concept of the term "rebellion"
depends much on its magnitude and scope, as determined by the President based on prevailing
circumstances.33

I disagree. The term "rebellion" in Section 18, Article VII of the 1987 Constitution must be
understood as having the same meaning as the crime of "rebellion" that is defined in Article 134 of
the Revised Penal Code, as amended.

First, this is the clear import of the last two paragraphs of Section 18, Article VII of the Constitution,
which explicitly state:
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially
charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis
supplied)

For a person to be judicially charged for rebellion, there must necessarily be a statute defining
rebellion. There is no statute defining rebellion other than the Revised Penal Code. Hence, "one can
be ‘judicially charged’ with rebellion only if one is suspected of having committed acts defined as
rebellion in Article 134 of the Revised Penal Code."34

Second, the Revised Penal Code definition of rebellion is the only legal definition of rebellion known
and understood by the Filipino people when they ratified the 1987 Constitution. Indisputably, the
Filipino people recognize and are familiar with only one meaning of rebellion, that is, the definition
provided in Article 134 of the Revised Penal Code. To depart from such meaning is to betray the
Filipino people’s understanding of the term "rebellion" when they ratified the Constitution. There can
be no question that "the Constitution does not derive its force from the convention which framed it,
but from the people who ratified it."35

Third, one of the Whereas clauses of Proclamation No. 1959 expressly cites the Revised Penal
Code definition of rebellion, belying the government’s claim that the Revised Penal Code definition of
rebellion merely guided the President in issuing Proclamation No. 1959.

In SANLAKAS v. Executive Secretary,36 where the Court regarded President Arroyo’s declaration of

a state of rebellion in Proclamation No. 427 a superfluity,37 the term "rebellion" in said proclamation
referred to the crime of rebellion as defined in Article 134 of the Revised Penal Code. Proclamation
No. 427 pertinently reads:

DECLARING A STATE OF REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue to
rise publicly and show open hostility, for the purpose of removing allegiance to the Government
certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and
depriving the President of the Republic of the Philippines, wholly or partially, of her powers
and prerogatives which constitute the crime of rebellion punishable under Article 134 of the
Revised Penal Code, as amended; x x x (Emphasis supplied)

In issuing Proclamation No. 427, President Arroyo relied on the Revised Penal Code definition of
rebellion in declaring a state of rebellion. In other words, President Arroyo understood that, for
purposes of declaring a state of rebellion, the term "rebellion" found in the Constitution refers to the
crime of rebellion defined in Article 134 of the Revised Penal Code.

In exercising the Commander-in-Chief powers under the Constitution, every President must insure
the existence of the elements of the crime of rebellion, which are: (1) there is a (a) public uprising
and (b) taking arms against the Government; and (2) the purpose of the uprising or movement is
either (a) to remove from the allegiance to the Government or its laws: (1) the territory of the
Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive
the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.38

To repeat, the term "rebellion" in Section 18, Article VII of the Constitution must be understood to
have the same meaning as the crime of rebellion defined in Article 134 of the Revised Penal Code.
Ascribing another meaning to the term "rebellion" for constitutional law purposes, more specifically in
imposing martial law and suspending the writ, different from the definition in Article 134 of the
Revised Penal Code, overstretches its definition without any standards, invites unnecessary
confusion, and undeniably defeats the intention of the Constitution to restrain the extraordinary
Commander-in-Chief powers of the President.

Since the term "rebellion" in Section 18, Article VII of the Constitution pertains to the crime of
rebellion as defined in Article 134 of the Revised Penal Code, the next question turns on the kind of
proof required for a valid declaration of martial law and suspension of the writ.

While the Constitution expressly provides strict safeguards against any potential abuse of the
President’s emergency powers, the Constitution does not compel the President to produce such
amount of proof as to unduly burden and effectively incapacitate her from exercising such powers.
Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of
proof required for convicting an accused charged with a criminal offense. Section 2, Rule 133 of the
Rules of Court defines proof beyond reasonable doubt as follows:

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind.

Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to
establish the existence of rebellion or invasion with such amount of proof before declaring martial
law or suspending the writ amounts to an excessive restriction on "the President’s power to act as to
practically tie her hands and disable her from effectively protecting the nation against threats to
public safety."39

Neither clear and convincing evidence, which is employed in either criminal or civil cases, is
indispensable for a lawful declaration of martial law or suspension of the writ. This amount of proof
likewise unduly restrains the President in exercising her emergency powers, as it requires proof
greater than preponderance of evidence although not beyond reasonable doubt.40

Not even preponderance of evidence,41 which is the degree of proof necessary in civil cases, is
demanded for a lawful declaration of martial law.

By preponderance of evidence is meant that the evidence as a whole adduced by one side is
superior to that of the other. It refers to the weight, credit and value of the aggregate evidence on
either side and is usually considered to be synonymous with the term "greater weight of evidence" or
"greater weight of the credible evidence". It is evidence which is more convincing to the court as
worthy of belief than that which is offered in opposition thereto.42

Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can
act and impose martial law or suspend the writ unreasonably curtails the President’s emergency
powers.

Similarly, substantial evidence constitutes an unnecessary restriction on the President’s use of her
emergency powers. Substantial evidence is the amount of proof required in administrative or quasi-
judicial cases, or that amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.43

I am of the view that probable cause of the existence of either invasion or rebellion suffices and
satisfies the standard of proof for a valid declaration of martial law and suspension of the writ.

Probable cause is the same amount of proof required for the filing of a criminal information by the
prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been defined
as a "set of facts and circumstances as would lead a reasonably discreet and prudent man to believe
that the offense charged in the Information or any offense included therein has been committed by
the person sought to be arrested."44

In determining probable cause, the average man weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been committed and that it was committed
by the accused. Probable cause demands more than suspicion; it requires less than evidence that
would justify conviction.45 (Emphasis supplied)

Probable cause, basically premised on common sense, is the most reasonable, most practical, and
most expedient standard by which the President can fully ascertain the existence or non-existence of
rebellion, necessary for a declaration of martial law or suspension of the writ. Therefore, lacking
probable cause of the existence of rebellion, a declaration of martial law or suspension of the writ is
without any basis and thus, unconstitutional.

The requirement of probable cause for the declaration of martial law or suspension of the writ is
consistent with Section 18, Article VII of the Constitution. It is only upon the existence of probable
cause that a person can be "judicially charged" under the last two paragraphs of Section 18, Article
VII, to wit:

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially
charged for rebellion or offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis
supplied)

III.

Whether the declaration of martial law or the suspension

of the writ authorizes warrantless arrests, searches and seizures.

Section 18, Article VII of the Constitution partially states:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially
charged for rebellion or offenses inherent in, or directly connected with, invasion.

The 1935 and 1973 Constitutions did not contain a similar provision. Obviously, this new provision in
the 1987 Constitution was envisioned by the framers of the Constitution to serve as an essential
safeguard against potential abuses in the exercise of the President’s emergency powers.

The Constitution now expressly declares, "A state of martial law does not suspend the operation of
the Constitution." Neither does a state of martial law supplant the functioning of the civil courts or
legislative assemblies. Nor does it authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, or automatically suspend the writ.
There is therefore no dispute that the constitutional guarantees under the Bill of Rights remain fully
operative and continue to accord the people its mantle of protection during a state of martial law. In
case the writ is also suspended, the suspension applies only to those judicially charged for rebellion
or offenses directly connected with invasion.

Considering the non-suspension of the operation of the Constitution during a state of martial law, a
declaration of martial law does not authorize warrantless arrests, searches and seizures, in
derogation of Section 2, Article III of the Constitution, which provides:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

Warrantless arrests, search and seizure are valid only in instances where such acts are
justified, i.e., those enumerated in Section 5, Rule 113 of the Rules of Court.46

In Pequet v. Tangonan,47 decided during the Martial Law regime under former President Marcos, the
Court stressed that military personnel, in effecting arrests, must strictly observe the applicable Rules
of Court and settled jurisprudence, thus:

Martial law has precisely been provided in both the 1935 Charter and the present Constitution to
assure that the State is not powerless to cope with invasion, insurrection or rebellion or any
imminent danger of its occurrence. When resort to it is therefore justified, it is precisely in
accordance with and not in defiance of the fundamental law. There is all the more reason then for
the rule of law to be followed. For as was so eloquently proclaimed in Ex parte Milligan: "The
Constitution is a "law for rulers and for people equally in war and in peace and covers with the shield
of its protection all classes of men at all times and under all circumstances." It is true, of course, as
admitted by Willoughby, who would limit the scope of martial law power, that the military personnel
are called upon to assist in the maintenance of peace and order and the enforcement of legal norms.
They can therefore act like ordinary peace officers. In effecting arrests, however, they are not
free to ignore, but are precisely bound by, the applicable Rules of Court and doctrinal
pronouncements. (Emphasis supplied)

In Aberca v. Ver,48 the Court emphasized that the suspension of the writ does not give imprimatur to
warrantless arrests in violation of the Constitution. In that case, which involved the issue of whether
the suspension of the writ bars a civil action for damages for illegal searches and for other human
rights violations committed by the military, the Court held:

At the heart of petitioners’ complaint is Article 32 of the Civil Code which provides:
xxxx

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply
cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek
to violate those sacred rights with impunity. In times of great upheaval or of social and political
stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio
Teehankee — to the law of force rather than the force of law, it is necessary to remind ourselves that
certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or
imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. x x x

xxxx

It may be that the respondents, as members of the Armed Forces of the Philippines, were merely
responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection,
rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite
the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre-
emptive strikes against alleged communist terrorist underground houses. But this cannot be
construed as a blanket license or a roving commission untramelled by any constitutional
restraint, to disregard or transgress upon the rights and liberties of the individual citizen
enshrined in and protected by the Constitution. The Constitution remains the supreme law of
the land to which all officials, high or low, civilian or military, owe obedience and allegiance
at all times.

xxxx

This is not to say that military authorities are restrained from pursuing their assigned task or carrying
out their mission with vigor. We have no quarrel with their duty to protect the Republic from its
enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert
our democratic institutions and imperil their very existence. What we are merely trying to say is
that in carrying out this task and mission, constitutional and legal safeguards must be
observed, otherwise, the very fabric of our faith will start to unravel. x x x

We do not agree. We find merit in petitioners’ contention that the suspension of the privilege of
the writ of habeas corpus does not destroy petitioners’ right and cause of action for damages
for illegal arrest and detention and other violations of their constitutional rights. The
suspension does not render valid an otherwise illegal arrest or detention. What is suspended
is merely the right of the individual to seek release from detention through the writ of habeas
corpus as a speedy means of obtaining his liberty. 49 (Emphasis supplied)

IV.

Whether the declaration of martial law or suspension of

the writ is a joint and sequential function of the
President and Congress such that, without Congressional action
on the proclamation or suspension either affirming or revoking it,
the President having in the meantime lifted the same,
this Court has nothing to review.

Section 18, Article VII of the 1987 Constitution provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty
days from its filing.

The Constitution vests exclusively in the President, as Commander-in-Chief, the emergency powers
to declare martial law or suspend the writ in cases of rebellion or invasion, when the public safety
requires it. The imposition of martial law or suspension of the writ takes effect the moment it is
declared by the President. No other act is needed for the perfection of the declaration of martial law
or the suspension of the writ. As amicus curiae retired Justice Mendoza states:

A declaration of martial law by the President alone is complete by itself and does not require for its
validity the approval or concurrence of Congress. It is a power placed solely in the keeping of the
President to enable him to secure the people from harm and restore the public order so that they can
enjoy their freedoms. Because it is liable to abuse, it is made subject to check by Congress and/or
the [Supreme Court].

The power of Congress is to revoke – not to confirm or ratify, much less to approve, – the
President’s action declaring martial law or suspending the privilege of the writ of habeas corpus. It is
a veto power, just as the power of the judiciary to review the President’s action is a veto power on
the Executive’s action.

It is clear, therefore, that the President’s power to declare martial law or suspend the writ is
independent, separate, and distinct from any constitutionally mandated act to be performed by either
the Legislature or the Judiciary. It is neither joint nor sequential with Congress’ power to revoke the
declaration or suspension or to extend it upon the initiative of the President. Accordingly, even if
Congress has not acted upon the President’s declaration or suspension, the Court may review the
declaration or suspension in an appropriate proceeding filed by any citizen. Otherwise stated,
Congress’ inaction on the declaration or suspension is not determinative of the Court’s exercise of its
review power under Section 18, Article VII of the Constitution.

To hold that the power of this Court to review the President’s declaration of martial law or
suspension of the writ is sequential, or joint, with the review power of Congress is to make it
impossible for this Court to decide a case challenging the declaration or suspension "within thirty
days from its filing," as mandated by the Constitution. Congress has no deadline when to revoke
the President’s declaration or suspension. Congress may not even do anything with the President’s
declaration or suspension and merely allow it to lapse after 60 days. On the other hand, the
Constitution mandates that this Court "must promulgate its decision thereon within thirty days
from [the] filing" of the case. Clearly, the Court’s review power is neither sequential nor joint with
the review power of Congress.

Moreover, the President’s lifting of the declaration or suspension before this Court could decide the
case within the 30-day period does not operate to divest this Court of its jurisdiction over the case. A
party cannot simply oust the Court’s jurisdiction, already acquired, by a party’s own unilateral act.
The President’s lifting of the declaration or suspension merely means that this Court does not have
to decide the case within the 30-day period, as the urgency of deciding has ceased. Certainly, the
Court is not divested of its jurisdiction simply because the urgency of deciding a case has ceased.

V.

If the constitutional power of this Court to review the factual basis

of the declaration of martial law or suspension of the writ can be exercised simultaneously with the
constitutional power of Congress to revoke the declaration or suspension, and the decision of this
Court conflicts with the decision of Congress, which decision shall prevail.

The President has the sole and exclusive power to declare martial law or suspend the writ. This
power of the President is subject to review separately by Congress and the Supreme Court. Justice
Mendoza stresses, "Thus, Congress and this Court have separate spheres of competence. They do
not act ‘jointly and sequentially’ but independently of each other."50 Father Bernas points out, "Since
the powers of Congress and the Court are independent of each other, there is nothing to prevent
Congress and the Court from simultaneously exercising their separate powers."51

In the exercise by the Court and Congress of their separate "review powers" under Section 18,
Article VII of the Constitution, three possible scenarios may arise.

First, the President’s martial law declaration or suspension of the writ is questioned in the
Supreme Court without Congress acting on the same. Such a situation generates no conflict
between the Supreme Court and Congress. There is no question that the Supreme Court
can annul such declaration or suspension if it lacks factual basis. Congress, whose only
power under Section 18, Article VII of the Constitution is to revoke the declaration or
 suspension on any ground, is left with nothing to revoke if the Court has already annulled the
declaration or suspension.

Second, Congress decides first to revoke the martial law declaration or suspension of the
writ. Since the Constitution does not limit the grounds for congressional revocation,
Congress can revoke the declaration or suspension for policy reasons, or plainly for being
insignificant, as for instance it involves only one barangay rebelling, or if it finds no actual
rebellion. In this case, the Supreme Court is left with nothing to act on as the revocation by
Congress takes effect immediately. The Supreme Court must respect the revocation by
Congress even if the Court believes a rebellion exists because Congress has the unlimited
power to revoke the declaration or suspension.

Third, the Supreme Court decides first and rules that there is factual basis for the declaration
of martial law or suspension of the writ. In such a situation, Congress can still revoke the
declaration or suspension as its power under the Constitution is broader insofar as the
declaration or suspension is concerned. "Congress cannot be prevented by the Court from
revoking the President’s decision because it is not for the Court to determine what to do with
an existing factual situation. x x x Congress has been given unlimited power to revoke the
President’s decision."52 In short, even if there is an actual rebellion, whether affirmed or not
by the Supreme Court, Congress has the power to revoke the President’s declaration or
suspension.

In the present controversy, Congress failed to act on Proclamation No. 1959 when it commenced its
Joint Session on 9 December 2009 until the lifting of the martial law declaration and restoration of
the writ on 12 December 2009. Congress’ non-revocation of Proclamation No. 1959 categorizes the
present case under the first scenario. In such a situation, where no conflict ensues, Congress’
inaction on Proclamation No. 1959 does not preclude this Court from ruling on the sufficiency of the
factual basis of the declaration of martial law and suspension of the writ.

VI.

Whether this Court’s determination of the sufficiency of the factual basis

of the declaration of martial law and suspension of the writ,
which in the meantime have been lifted, would be essential
to the resolution of issues concerning the validity of related acts
that the government committed during the time
that martial law and the suspension of the writ were in force.

Indisputably, unlawful acts may be committed during martial law or suspension of the writ, not only
by the rebels, but also by government forces who are duty bound to enforce the declaration or
suspension and immediately put an end to the root cause of the emergency. Various acts carried out
by government forces during martial law or suspension of the writ in the guise of protecting public
safety may in reality amount to serious abuses of power and authority. Whatever the Court’s
decision will be on the sufficiency of the factual basis of the President’s declaration or suspension
does not preclude those aggrieved by such illegal acts from pursuing any course of legal action
available to them. Therefore, the determination by this Court of the sufficiency of the factual basis of
the declaration or suspension is not essential to the resolution of issues concerning the validity of
related acts that government forces may have committed during the emergency.

VII.

Whether Proclamation No. 1959 has sufficient factual basis.

The full text of Section 18, Article VII of the 1987 Constitution reads:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty
days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially
charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.

The Commander-in-Chief provisions of the 1935 and 1973 Constitutions, on the other hand,
respectively state:

Section 10(2), Article VII of the 1935 Constitution

2. The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger
thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas
corpus, or place the Philippines or any part thereof under Martial Law.

Section 12, Article IX of the 1973 Constitution

SEC. 12. The Prime Minister shall be commander-in-chief of all armed forces of the Philippines, and,
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion, insurrection, or rebellion or imminent danger thereof, when the public safety
requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any
part thereof under Martial Law.

Notably, the 1935 and 1973 Constitutions only specify the instances when martial law may be
declared or when the writ may be suspended.

The 1987 Constitution, on the other hand, not only explicitly includes the specific grounds for the
activation of such emergency powers, but also imposes express limitations on the exercise of such
powers. Upon the President’s declaration of martial law or suspension of the writ, the following
safeguards are automatically set into motion: (1) the duration of martial law or suspension of the writ
is limited to a period not exceeding sixty days; (2) the President is mandated to submit a report to
Congress within forty-eight hours from the declaration or suspension; and (3) the declaration or
suspension is subject to review by Congress, which may revoke such declaration or suspension. If
Congress is not in session, it shall convene within 24 hours without need for call.53 In addition, the
sufficiency of the factual basis of the declaration, suspension, or their extension is subject to review
by the Supreme Court in an appropriate proceeding.

The mechanism and limitations laid down in Section 18, Article VII of the Constitution in declaring
martial law or suspending the writ were introduced precisely to preclude a repetition of the kind of
martial law imposed by President Marcos, which ushered in a permanent authoritarian regime. As
Father Bernas wrote in his book:

The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand
Marcos to impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions
during that period upholding the actions taken by Mr. Marcos made authoritarian rule part of
Philippine constitutional jurisprudence. The members of the Constitutional Commission, very much
aware of these facts, went about reformulating the Commander-in-Chief powers with a view to
dismantling what had been constructed during the authoritarian years. The new formula included
revised grounds for the activation of emergency powers, the manner of activating them, the scope of
the powers, and review of presidential action.54

Consistent with the framers’ intent to reformulate the Commander-in-Chief powers of the President,
the 1987 Constitution requires the concurrence of two conditions in declaring martial law or
suspending the writ, namely, (1) an actual invasion or rebellion, and (2) public safety requires the
exercise of such power.55 The Constitution no longer allows imminent danger of rebellion or invasion
as a ground for the declaration or suspension, which the 1935 and 1973 Constitutions expressly
permitted.

In the present case, President Arroyo grounded the declaration of martial law and suspension of the
writ on the existence of rebellion in Maguindanao. In her Report submitted to Congress, President
Arroyo cited the following instances as constitutive of rebellion:

1. Local government offices in the province of Maguindanao were closed and ranking local
government officials refused to discharge their functions, which hindered the investigation
and prosecution team from performing their tasks;

2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death
certificates of the victims purportedly upon the orders of Andal Ampatuan Sr.;

3. The local judicial system has been crippled by the absence or non-appearance of judges
of local courts, thereby depriving the government of legal remedies in their prosecutorial
responsibilities (i.e. issuance of warrants of searches, seizure and arrest). While the
Supreme Court has designated an Acting Presiding Judge from another province, the normal
judicial proceedings could not be carried out in view of threats to their lives or safety,
prompting government to seek a change of venue of the criminal cases after informations
have been filed.

xxxx

Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed
rebels in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan
Municipal Hall, Datu Unsay Municipal Hall, and fourteen other municipal halls, and the use of
armored vehicles, tanks and patrol cars with unauthorized "PNP/Police" markings, all
together confirm the existence of armed public uprising for the political purpose of:

(1) removing allegiance from the national government of the Province of

Maguindanao; and,

(2) depriving the Chief Executive of her powers and prerogatives to enforce the laws
of the land and to maintain public order and safety.

While the government is at present conducting legitimate operations to address the on-going
rebellion, public safety still requires the continued implementation of martial law and the
suspension of the privilege of the writ of habeas corpus in the Province of Maguindanao until
the time that such rebellion is completely quelled.56 (Emphasis supplied)

The question now is whether there was probable cause, which is the required quantum of proof, to
declare the existence of rebellion justifying the President’s declaration of martial law and suspension
of the writ.

The answer is in the negative.

The contemporaneous public statements made by the President’s alter egos explaining the grounds
for the issuance of Proclamation No. 1959 negate rather than establish the existence of an actual
rebellion in Maguindanao.

During the interpellations in the Joint Session of Congress, convened pursuant to the provisions of
Section 18, Article VII of the Constitution, then Executive Secretary Eduardo Ermita admitted the
absence of an actual rebellion in Maguindanao, to wit:

REP. LAGMAN. Mr. Speaker, Mr. President, a perusal of the text of Proclamation No. 1959 would
show the absence of a clear and categorical finding or determination that actual rebellion is
occurring in Maguindanao. Would that be an accurate observation of a reading of the text of
Proclamation No. 1959?

MR. ERMITA. Your Honor, you may be correct that there was no actual rebellion going
on. However, all the indicators that rebellion is, indeed, being committed and happening on the
ground is because of the presence of the armed groups that prevent authorities from being able to
do its duty of even effecting the arrest of those who should be arrested in spite of the testimonies of
witnesses.
REP. LAGMAN. Well, we are happy to note that there is an admission that there was no actual
rebellion in Maguindanao. But the presence of armed groups would be indicative of lawless
violence which is not synonymous to rebellion. As a matter of fact, the Maguindanao situationer
which was made by Police Director Andres Caro was premised on a statement that this was the
worst election-related violence – an act of gross lawlessness but definitely not related to rebellion.

x x x x57 (Emphasis supplied)

Also, during the Joint Session, then Senator (now President) Benigno S. Aquino III pointed out the
public statements made by former Department of Interior and Local Government Secretary Ronaldo
V. Puno, then Armed Forces of the Philippines spokesperson Lt. Col. Romeo Brawner, and former
Defense Secretary Norberto Gonzales admitting there was no need for martial law:

THE SENATE PRESIDENT. With the indulgence of the Chamber and the Speaker, may we request
now to allow the distinguished Gentleman from Tarlac, Senator Benigno "Noynoy" Aquino III the
floor.

SEN. AQUINO. Thank you, Mr. President. May I direct my first question to Secretary Puno. And this
is to lay the proper predicate for our first question. The newspaper has been quoting Secretary Puno
as not having recommended the imposition of martial law prior to its imposition in Maguindanao. May
we know if this was a correct attribution to the Honorable Secretary.

MR. PUNO. Until, Your Honor, Mr. Speaker, Mr. Senate President, until the situation developed
where police officers went absent on leave and joined the rebel forces, and a significant segment of
the civilian armed volunteers of the local governments constituted themselves into a rebel group,
until that time I did not believe that it was necessary that martial law be declared. But upon receipt of
a report from the Armed Forces of the Philippines and the briefing conducted with the National
Security Council, where it was made clear that a separate rebel armed group had already been
organized, we concurred, Your Honor, with the recommendation on martial law.

SEN. AQUINO. For the record, Mr. Senate President and Mr. Speaker, the AFP, we understand,
through the spokesperson, Lt. Col. Romeo Brawner, declared on 13 November 2009 that there is no
need for the declaration of martial law in Maguindanao or elsewhere in the country because the AFP
and PNP are on top of the situation. He was quoted as saying, and we quote: "We now have a level
of normalcy in the Province of Maguindanao, primarily because of the occupation by our government
forces and our law enforcement agencies of the seats of government." Secretary Norberto Gonzales,
who unfortunately is not present, declared on December 1, 2009 that the government’s effort to
contain the tension in the province is holding ground. We also have now the admission by the
honorable Secretary Puno that prior to the undated national security briefing, he was also of the
opinion that martial law was not necessary in Maguindanao. x x x58

Even before the interpellations in Congress, then Executive Secretary Ermita publicly confirmed the
inadequacies of Proclamation No. 1959:

We’ll have to get the report from the field from the AFP and PNP that the conditions that prompted
the President to issue the proclamation, have improved, and therefore, the threat of further
lawlessness and probability of rebellion is already down.59 (Emphasis supplied)

Significantly, at a press conference, then Secretary of Justice Agnes Devanadera declared, "We
noticed and observed there was a rebellion in the offing." In another press briefing, Devanadera
stated that "rebellion which does not necessarily involve a physical takeover by armed elements as
argued by some critics of the President’s order, was "looming in Maguindanao."60 In short, the
Department of Justice Secretary, who is the principal legal officer of the Arroyo administration,
publicly admitted that there was only a "looming" rebellion, a "rebellion in the offing," in
Maguindanao.

Likewise, in a press conference, "the AFP Chief of Staff claimed that armed groups, numbering
between 40 to 400 men and spread out in the province, planned to prevent the arrest of members of
the Ampatuan family, the prime suspects in the Maguindanao massacre. He stated, "Based on the
reports we received, there were a lot of groupings of armed groups in different places. We also
received reports that they have plans to undertake hostile action if ever government officials, the
Ampatuans particularly, were taken in custody. We felt this was very imminent threat, that’s why
we recommended this proclamation."61

Then Defense Secretary Norberto Gonzales was quoted as stating that the "recommendation to
declare martial law in Maguindanao is a sensitive matter that needs to be studied."62 In an interview,
Gonzales said, "titingnan natin (we will see) how the situation develops there."63 He further stated,
"As of now, I think whatever the government is doing so far is really effective. We will wait for the
results of the work of Secretary Devanadera of Justice and also Secretary Puno of DILG. So, so far
maganda naman yun takbo ng ating operation doon."64 Gonzales added, "Yung tungkol sa martial
law, alam mo sensitive na bagay yan kaya pag-aaralan natin."65

The admissions and public statements made by members of the Cabinet, who are the President’s
alter egos, as well as the public assessments made by the highest ranking military officials, clearly
demonstrate that instead of being anchored on the existence of an actual rebellion, Proclamation
No. 1959 was based on a mere threat, or at best an imminent threat of rebellion, or a rebellion "in
the offing."66 This undeniably runs counter to the letter and intent of the Constitution. A looming
rebellion is analogous to imminent danger of rebellion, which was deliberately eliminated by the
framers of the 1987 Constitution as a ground for the declaration of martial law precisely to avoid a
repetition of the misguided and oppressive martial law imposed by former President Marcos.

There is absolutely nothing which shows that the Ampatuans and their armed followers, at any
point in time, intended to overthrow the government. On the contrary, the Ampatuans were publicly
known as very close political allies of President Arroyo. There is not a single instance where the
Ampatuans denounced, expressly or impliedly, the government, or attempted to remove allegiance
to the government or its laws or to deprive the President or Congress of any of their powers. Based
on the records, what the government clearly established, among others, were (1) the existence of
the Ampatuans’ private army; and (2) the Ampatuans’ vast collection of high powered firearms and
ammunitions.

These shocking discoveries, however, do not amount to rebellion as defined in Article 134 of the
Revised Penal Code. Based on the statements made by ranking government and military officials,
and as clearly found by the RTC-Quezon City in Criminal Case No. Q-10-162667 and affirmed by
the Court of Appeals, there was no public uprising and taking arms against the government for
the purpose of removing from the allegiance to the government or its laws the territory of the
Philippines or any part thereof, or depriving the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives. The Ampatuans’ amassing of weaponry,
including their collection of armored cars, tanks and patrol cars, merely highlights this political clan’s
unbelievably excessive power and influence under the Arroyo administration.

To repeat, only in case of actual invasion or rebellion, when public safety requires it, may the
President declare martial law or suspend the writ. In declaring martial law and suspending the writ in
Maguindanao in the absence of an actual rebellion, President Arroyo indisputably violated the
explicit provisions of Section 18, Article VII of the Constitution.

Conclusion

Thirty-seven years after President Marcos’ Proclamation No. 1081, President Arroyo issued
Proclamation No. 1959 declaring martial law and suspending the privilege of the writ of habeas
corpus in the province of Maguindanao, except in MILF identified areas. President Marcos’ martial
law, justified to counteract the Communist insurgency in the country,67 turned out to be a vehicle to
establish a one-man authoritarian rule in the country. Expectedly, President Arroyo’s Proclamation
No. 1959 refreshed the nation’s bitter memories of the tyranny during the Martial Law regime of
President Marcos, and sparked the public’s vigilance to prevent a possible recurrence of that horrible
past.

In issuing Proclamation No. 1959, President Arroyo exercised the most awesome and powerful
among her graduated Commander-in-Chief powers to suppress a supposed rebellion in
Maguindanao, following the massacre of 57 civilians in the worst election-related violence in the
country’s history. Since then, the government branded the Ampatuans, the alleged masterminds of
the massacre, as rebels orchestrating the overthrow of the Arroyo administration. However, the
events before, during, and after the massacre negate the existence of an armed uprising aimed at
bringing down the government, but rather point to a surfeit of impunity and abuse of power of a
political clan closely allied with the Arroyo administration. In short, Proclamation No. 1959 was
issued without an actual rebellion justifying the same.

Apparently, President Arroyo resorted to martial law and suspension of the writ, not to quell a
purported rebellion because there was absolutely none, but to show her indignation over the
gruesome massacre and her swift response in addressing the difficult situation involving her close
political allies. She was reported to be "under pressure to deliver, amid rising public outrage and
international condemnation of the massacre."68 However, mounting pressure to bring the murderers
to justice, without any invasion or rebellion in Maguindanao, does not warrant the imposition of
martial law or suspension of the writ. Rather, what the nation expects, and what the victims and their
families truly deserve, is the speedy and credible investigation and prosecution, and eventually the
conviction, of the merciless killers.

In sum, Proclamation No. 1959 was anchored on a non-existent rebellion. Based on the events
before, during and after the Maguindanao massacre, there was obviously no rebellion justifying the
declaration of martial law and suspension of the writ. The discovery of the Ampatuans’ private army
and massive weaponry does not establish an armed public uprising aimed at overthrowing the
government. Neither do the closure of government offices and the reluctance of the local
government officials and employees to report for work indicate a rebellion.

The Constitution is clear. Only in case of actual invasion or rebellion, when public safety requires it,
can a state of martial law be declared or the privilege of the writ of habeas corpus be suspended.
Proclamation No. 1959 cannot be justified on the basis of a threatened, imminent, or looming
rebellion, which ground was intentionally deleted by the framers of the 1987 Constitution.
Considering the non-existence of an actual rebellion in Maguindanao, Proclamation No. 1959 is
unconstitutional for lack of factual basis as required under Section 18, Article VII of the Constitution
for the declaration of martial law and suspension of the privilege of the writ of habeas corpus.

Accordingly, I vote to GRANT the petitions and DECLARE Proclamation No.

1959 UNCONSTITUTIONAL for failure to comply with Section 18, Article VII of the Constitution.

G.R. No. 188225 : November 28, 2012

SHIRLEY F. TORRES, Petitioner, v. IMELDA PEREZ and RODRIGO

PEREZ, Respondents.

G.R. No. 198728

SHIRLEY F. TORRES, Petitioner, v. IMELDA PEREZ and RODRIGO

PEREZ, Respondents.

DECISION

SERENO, C.J.:

These are Petitions for Review on Certiorari under Rule 45 of the Rules of Court. The
petition docketed as G.R. No. 188225 assails the Decision1  of the Court of Appeals (CA) Ï‚rνll

in CA-G.R. SP No. 103846 dated 11 March 2009. The CA Decision nullified the Orders
dated 12 February 20082  and 11 April 20083  of the Regional Trial Court (RTC) of
ςrνll ςrνll

Makati, Branch 149. The RTC Orders had denied the Motion to Dismiss and/or Withdraw
Information filed against respondents for unfair competition (violation of Section 168 in
relation to Section 170)4  under Republic Act No. (R.A.) 8293 (Intellectual Property
ςrνll

Code of the Philippines).

On the other hand, the petition docketed as G.R. No. 198728 assails the Decision5  in Ï‚rνll

CA-G.R. SP No. 111903 dated 29 September 2011, which affirmed the RTC Orders
dated 29 July 20096  and 19 October 2009,7  this time quashing the Information against
ςrνll ςrνll

respondents.

Respondents Imelda and Rodrigo are spouses who own RGP Footwear Manufacturing
(RGP), which supplies ladies shoes to Shoe Mart (SM).8  They met petitioner when she Ï‚rνll

sold them business-class plane tickets to the United States in 2002.9  She was also Ï‚rνll

interested in doing business with SM, and they suggested that she form a partnership
with their daughter Sunshine, nicknamed Sasay.10 ςrνll

Petitioner and Sunshine formed Sasays Closet Co. (SCC), a partnership registered with
the Securities and Exchange Commission on 17 October 2002. SCC was engaged in the
supply, trading, retailing of garments such as underwear, childrens wear, womens and
mens wear, and other incidental activities related thereto.11 ςrνll

For its products, SCC used the trademark "Naturals with Design," which it filed with the
Intellectual Property Office on 24 August 2005 and registered on 26 February
2007.12  These products were primarily supplied to SM,13  which assigned to them the
ςrνll ςrνll

vendor code "190501" for purposes of identification.14 ςrνll

SCC used the facilities and equipment owned by RGP, as well as the latters business
address (No. 72 Victoria Subdivision, Barangay Dela Paz, Bin, Laguna), which was also
the residential address of respondents.15 ςrνll
In August 2003, Sunshine pulled out of the partnership, because she was hired to work
in an international school.16 Respondent Imelda took over Sunshines responsibilities in
ςrνll

the partnership.17 ςrνll

On 14 December 2005, petitioner sent an email to respondent Imelda asking to be

reimbursed for expenses incurred in the formers travel to China.18 Respondent Imelda Ï‚rνll

replied the following day, stating that the partnership could not reimburse petitioner,
because the trip was personal and not business-related.19  In the same email, Ï‚rνll

respondent Imelda vented her frustration over the fact that she, together with
respondent Rodrigo, had been doing all the work for SCC and incurring expenses that
they did not charge to the partnership.20 Respondent Imelda then informed petitioner of Ï‚rνll

the formers decision to dissolve the partnership.21  Despite the objections of petitioner Ï‚rνll

to the dissolution of SCC, various amounts were paid to her by respondents from
January to April 2006 representing her share in the partnership assets.22 ςrνll

Meanwhile, on 27 March 2006, petitioner established Tezares Enterprise, a sole

proprietorship engaged in supplying and trading of clothing and accessories except
footwear.23  Also in March 2006, she discovered that underwear products bearing the
ςrνll

brand "Naturals" were being sold in SM with vendor code "180195."24  This code was Ï‚rνll

registered to RGP,25  a fact confirmed by test buys conducted by her lawyers on 13 and
ςrνll

14 May 2006.26 ςrνll

On 5 June 2006, a search warrant for unfair competition under Section 168 in relation
to Section 170 of R.A. 8293 was issued by the RTC of Manila, Branch 24, against
respondents at their address.27  The search warrant called for the seizure of womens Ï‚rνll

undergarments bearing the brand "Naturals," as well as equipment and papers having
the vendor code "180195" or the inscription "RGP." The search warrant was
implemented on the same day. However, it was quashed by the same court on 20
October 2006 upon motion of respondents. The trial court ruled that respondents did
not pass off "Naturals" as the brand of another manufacturer. On the contrary, they
used the brand in the honest belief that they owned SCC, the owner of the brand.

On 9 June 2006, petitioner filed a criminal complaint for unfair competition against
respondents and Sunshine before the City Prosecution Office of Makati City.28  Assistant Ï‚rνll

City Prosecutor Imelda P. Saulog found probable cause to indict respondents for unfair
competition.29  She ruled that they had clearly passed off the "Naturals" brand as RGPs
ςrνll

even if the brand was owned by SCC. According to the prosecutor, SCC was indeed
dissolved when respondent Imelda manifested her intention to cease from the
partnership in an email sent to petitioner on 15 December 2005.30  The prosecutor said, Ï‚rνll

however, that it remained operational, since the process of winding up its business had
not been completed. Thus, SCC remained the owner of the "Naturals" brand, and
petitioner being a legitimate partner thereof had a right to file the complaint against
respondents. The prosecutor found no probable cause against Sunshine, as it was
established that she had withdrawn from SCC as of August 2003.

The indictment was raffled to RTC Makati City, Branch 149. On 23 October 2006, it
issued an Order finding probable cause for the issuance of a warrant of arrest against
respondents.31 ςrνll

Respondents filed a petition for review of the prosecutors resolution before the
Department of Justice (DOJ), which on 13 December 2006 issued its own
Resolution32  reversing the finding of existence of probable cause against them.
ςrνll

Contrary to the prosecutors finding, the DOJ found that SCC had effectively wound up
the latters partnership affairs on 24 April 2006 when petitioner was reimbursed for her
trip to China. That was the last of the payments made to her to cover her share in the
partnership affairs, which started after respondent Imelda manifested her intention to
cease from the partnership business on 15 December 2005. Thus, when the criminal
complaint for unfair competition was filed on 9 June 2006, there was "no longer any
competition, unfair or otherwise, involving the partnership."33 ςrνll

Furthermore, the DOJ ruled that even if SCC had not yet terminated its business and
therefore still existed, respondents had the right to use the "Naturals" brand, as they
were already the exclusive owners of SCC following the completion of payments of
petitioners share in the partnership affairs. Also, the establishment by petitioner of
Tezares Enterprise which directly competed with SCC in terms of products and its
subsequent accreditation as supplier of intimate apparel for SM in April 2006 were
regarded by the DOJ as apparent indications that she no longer had any share in SCC.
Thus, the petition for review was granted, and the city prosecutor of Makati was
ordered to withdraw the Information against respondents for unfair competition.

The DOJ denied the motion for reconsideration filed by petitioner on 28 March
2007.34  Hence, she filed a petition for certiorari before the CA, where it was docketed
ςrνll

as CA-G.R. SP No. 98861. In her petition, she questioned the DOJ Resolution, but later
withdrew the same on 6 December 2007 for an unknown reason.35 ςrνll

Following the directive of the DOJ, the prosecutor filed before the RTC of Makati City,
Branch 149, a Motion to Dismiss and/or Withdraw Information on 3 April 2007.36  The Ï‚rνll

trial court denied the motion in an Order37  dated 12 February 2008. It maintained the
ςrνll

correctness of its finding of existence of probable cause in the case and ruled that the
findings of the DOJ would be better appreciated and evaluated in the course of the trial.

Respondents moved for reconsideration,38  but their motion was denied39  by the RTC.
ςrνll ςrνll

Aggrieved, they filed a Petition for Certiorari (with Prayer for the Issuance of a
Temporary Restraining Order and thereafter a Preliminary Injunction)40  before the CA. Ï‚rνll

They argued that probable cause for the issuance of a warrant of arrest is different from
probable cause for holding a person for trial. The first is the function of the judge, while
the second is the prosecutors.41  Thus, respondents claimed that it was wrong for
ςrνll

Presiding Judge Cesar O. Untalan to deny the prosecutors motion to dismiss for lack of
probable cause on the basis of the judges own finding that there was probable cause to
issue a warrant of arrest against respondents. Furthermore, the Judge Untalan based
his finding solely on the evidence submitted by petitioner without evaluating the
evidence of respondents.

In the first assailed Decision in CA-G.R. SP No. 10384642  dated 11 March 2009, the CA Ï‚rνll

granted the petition. It found that the trial judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he denied the prosecutors motion to
dismiss for lack of probable cause. The CA sustained the position of respondents that
the finding of probable cause for the filing of an information is an executive function
lodged with the prosecutor. It also found that the trial judge did not make an
independent assessment of the evidence on record in determining the existence of
probable cause for the offense of unfair competition, as opposed to the exhaustive
study made by the DOJ before arriving at its finding of lack of probable cause.

The CA also ruled that in determining probable cause, the essential elements of the
crime charged must be considered, for their absence would mean that there is no
criminal offense. In determining probable cause for unfair competition, the question is
"whether or not the offenders by the use of deceit or any other means contrary to good
faith passes off the goods manufactured by him or in which he deals, or his business, or
services for those of the one having established such goodwill, or who shall commit any
acts calculated to produce said result."43  The CA affirmed the findings of the DOJ and
ςrνll

the RTC of Manila, Branch 24 that respondents used the "Naturals" brand because they
believed that they were the owners of SCC, which owned the brand. Furthermore, the
partnership had been terminated as of April 2006; hence, the filing of the criminal
complaint on 9 June 2006 could no longer prosper. Even if SCC had not yet terminated
its business, respondents, having bought petitioner out of SCC, were already its
exclusive owners and, as such, had the right to use the "Naturals" brand.

According to the CA, the filing of the criminal complaint for unfair competition was
nothing but an offshoot of the misunderstanding and quarrel that arose when
respondents initially refused to reimburse the expenses incurred by petitioner in her trip
to China and further escalated when respondent Imelda decided to dissolve SCC.

Petitioner moved for reconsideration44  of the CA Decision, but the motion was denied
ςrνll

on 1 June 2009.45  She then brought the matter before this Court via a Petition for
ςrνll

Review on Certiorari filed under Rule 45 of the Rules of Court and docketed as G.R. No.
188225.46  Without giving due course to the petition, the Court required47  respondents
ςrνll ςrνll

to comment thereon. Upon their compliance,48  petitioner was required49  to file a Ï‚rνll Ï‚rνll

reply,50  which was later received on 11 December 2009. On 19 May 2011, she filed her
ςrνll

Memorandum.51 ςrνll

Meanwhile, following the promulgation of the Decision in CA-G.R. SP No. 103846,

respondents filed an Urgent Motion to Dismiss the criminal complaint for unfair
competition before the RTC on 1 April 2009.52  The motion was duly opposed by Ï‚rνll
petitioner, arguing that the CA Decision had not yet attained finality in view of her
pending petition before this Court; thus, the motion was premature.53  The RTC denied Ï‚rνll

the motion to dismiss for lack of merit.54  However, upon motion for Ï‚rνll

reconsideration55  filed by respondents, it issued the Order dated 29 July

ςrνll

200956  ordering the quashal of the Information against them. The trial court issued
ςrνll

another Order on 19 October 200957  denying petitioners Motion for Reconsideration.58 Ï‚rνll Ï‚rνll

Petitioner filed a Petition for Certiorari59  before the CA on the ground that the trial Ï‚rνll

judge committed grave abuse of discretion amounting to lack or excess of jurisdiction

when he quashed the Information against respondents based on a CA Decision that was
not yet final and executory, being the subject of a petition still pending before this
Court.

On 29 September 2011, the CA issued the second assailed Decision in CA-G.R. SP No.
111903 affirming the RTC Orders dated 29 July 2009 and 19 October 2009. The
appellate court ruled that while its Decision in CA-G.R. SP No. 103846 was still under
review before this Court, neithercourt had issued a restraining order or injunction that
would prevent the RTC from implementing the said Decision ordering the dismissal of
the information against respondents. Furthermore, the CA ruled that since petitioner
had withdrawn her petition in CA-G.R. SP No. 98861 questioning the DOJ Resolution,
the issue of whether there was probable cause had "already been resolved with finality
in the negative."60  Thus, the trial court cannot be faulted for following the CA directive
ςrνll

to dismiss the Information against respondents.

Opting not to file a motion for reconsideration,61  petitioner again comes before us on a Ï‚rνll

Petition for Review on Certiorari questioning the Decision in CA-G.R. SP No.

111903.62  In her petition docketed as G.R. No. 198728, she argues that Presiding
ςrνll

Judge Cesar O. Untalan committed grave abuse of discretion amounting to lack or

excess of jurisdiction when he dismissed the criminal case against respondents for
unfair competition based on CA findings that were not yet final. The trial judge was fully
aware that those findings were still subject to a pending petition before this Court.

On 23 November 2011, the Court consolidated G.R. Nos. 198728 and 188225.63 ςrνll

ISSUE

Despite the extensive legal battle that petitioner and respondents have waged
heretofore, these petitions will be settled simply through a ruling on whether there
exists probable cause to indict respondents for unfair competition (violation of Section
168 in relation to Section 170) under R.A. 8293.

OUR RULING

No probable cause to indict respondents

At the outset, it is worth noting that Judge Untalan acted well within the exercise of his
judicial discretion when he denied the Motion to Dismiss and/or Withdraw Information
filed by the prosecution. His finding that there was probable cause to indict respondents
for unfair competition, and that the findings of the DOJ would be better appreciated in
the course of a trial, was based on his own evaluation of the evidence brought before
him. It was an evaluation that was required of him as a judge.

Thus, in Yambot v. Armovit,64  this Court reiterated the mandate of judges to make a Ï‚rνll

personal evaluation of records submitted in support of criminal complaints filed before

their respective salas: chanroblesvirtuallawlibrary

Crespo v. Mogul instructs in a very clear manner that once a complaint or information is
filed in court, any disposition of the case as to its dismissal, or the conviction or
acquittal of the accused, rests on the sound discretion of the said court, as it is the best
and sole judge of what to do with the case before it. While the resolution of the
prosecutorial arm is persuasive, it is not binding on the court. It may therefore grant or
deny at its option a motion to dismiss or to withdraw the information based on its own
assessment of the records of the preliminary investigation submitted to it, in the faithful
exercise of judicial discretion and prerogative, and not out of subservience to the
prosecutor.65  x x x. (Emphasis supplied)
ςrνll
Judge Untalan stood firm on this finding in his denial of the motion for reconsideration
and even initially after the CA had made a ruling on the matter. He only performed a
task he was called upon to do, and his judgment on the matter although erroneous
cannot be regarded as capricious and whimsical. Thus, he did not commit grave abuse
of discretion amounting to lack or excess of jurisdiction.

However, while we recognize that Judge Untalan did not commit grave abuse of
discretion, we take note of his apparent loss of steam when he issued the Order dated
29 July 2009 granting respondents motion for reconsideration of his earlier ruling
denying the Urgent Motion to Dismiss. The good judge yielded, even though he was
well aware that the CA Decision had not yet attained finality pending review by this
Court.

We now rule on the issue of probable cause.

Probable cause, for purposes of filing a criminal information, is described as "such facts
as are sufficient to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial."66 ςrνll

Thus, the determination of the existence of probable cause necessitates the prior
determination of whether a crime or an offense was committed in the first place. Here,
we find that there was no probable cause to indict respondents, because the crime of
unfair competition was not committed.

In positing that respondents were guilty of unfair competition, petitioner makes a lot of
the fact that they used the vendor code of RGP in marketing the "Naturals" products.
She argues that they passed off the "Naturals" products, which they marketed under
RGP, as those of SCC; thus, they allegedly prejudiced the rights of SCC as owner of the
trademark. She also claims that she has the personality to prosecute respondents for
unfair competition on behalf of SCC.

When Judge Untalan denied the Motion to Dismiss and/or Withdraw Information filed by
the prosecution and thereby sustained the position of petitioner, his error lay in the fact
that his focus on the crime of unfair competition was unwarranted. In this case, much
more important than the issue of protection of intellectual property is the change of
ownership of SCC. The arguments of petitioner have no basis, because respondents are
the exclusive owners of SCC, of which she is no longer a partner.

Based on the findings of fact of the CA and the DOJ, respondents have completed the
payments of the share of petitioner in the partnership affairs. Having bought her out of
SCC, respondents were already its exclusive owners who, as such, had the right to use
the "Naturals" brand.

The use of the vendor code of RGP was resorted to only for the practical purpose of
ensuring that SMs payments for the "Naturals" products would go to respondents, who
were the actual suppliers.

Furthermore, even if we were to assume that the issue of protection of intellectual

property is paramount in this case, the criminal complaint for unfair competition against
respondents cannot prosper, for the elements of the crime were not present. We have
enunciated in CCBPI v. Gomez67  that the key elements of unfair competition are
ςrνll

"deception, passing off and fraud upon the public."68  No deception can be imagined to Ï‚rνll

have been foisted on the public through different vendor codes, which are used by SM
only for the identification of suppliers products.ςηαοblενιrυαllαωlιbrαr

WHEREFORE, the Decisions dated 11 March 2009 in CA-G.R. SP No. 103846 and 29
September 2011 in CA-G.R. SP No. 111903, finding lack of probable cause for
respondents alleged violation of Section 168 in relation to Section 170 of Republic Act
No. 8293 (unfair competition), are AFFIRMED. The Information against respondents for
unfair competition is

DISMISSED. ςrαlαωlιbrαr

SO ORDERED.

G.R. No. 203335               February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY

S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE
OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY

L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL
POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.

x-----------------------x

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,
National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of
Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and
Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.

x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the
Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA
DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the
Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT,
THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.

x-----------------------x

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official
capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police, Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA

in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS
IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE

COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG
MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY,
THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL
POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.
 DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a system that links him to other computers and
enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings from
them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing
his bank account or credit card or defrauding him through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate right to regulate the
use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent these tomfooleries
from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law
until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties for their commission as well as provisions that
would enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

 b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the
RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional
construct,  useful in determining the constitutionality of laws that tend to target a class of things or
1

persons. According to this standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.  Later, the strict scrutiny standard was used to assess the validity of laws dealing with
2
the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its
earlier applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct. 4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target system’s security and report back
to the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify
its bookkeeping records. 5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."  Since the ethical hacker does his job with prior permission from the client,
6

such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.  But Section 4(a)(3) does not encroach on these freedoms
7

at all. It simply punishes what essentially is a form of vandalism,  the act of willfully destroying
8

without right the things that belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect  or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
9

beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.  Here, the chilling effect that results in paralysis is an illusion since Section
10

4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.  Petitioner has failed to discharge this burden.
11

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx
(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from registering the same, if such a domain
name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause  in that,
12

not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it
to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on
ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a
facet of the right protected by the guarantee against unreasonable searches and seizures.  But the
13

Court acknowledged its existence as early as 1968 in Morfe v. Mutuc,  it ruled that the right to
14

privacy exists independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy."
The Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon"  the relevance of these zones to the right to privacy:
15

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches  and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
16

communication and correspondence.  In assessing the challenge that the State has impermissibly
17

intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion. 18

The usual identifying information regarding a person includes his name, his citizenship, his
residence address, his contact number, his place and date of birth, the name of his spouse if any,
his occupation, and similar data.  The law punishes those who acquire or use such identifying
19

information without right, implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and correspondence as well
as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly,
what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the
law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt
acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator.  As 20

such, the press, whether in quest of news reporting or social investigation, has nothing to fear since
a special circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.  They 21

express fear that private communications of sexual character between husband and wife or
consenting adults, which are not regarded as crimes under the penal code, would now be regarded
as crimes when done "for favor" in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."  This meaning given to the term "favor" embraces socially
22

tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may
be a form of obscenity to some."  The understanding of those who drew up the cybercrime law is
23

that the element of "engaging in a business" is necessary to constitute the illegal cybersex.  The Act
24

actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam. 25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not
novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows."
The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."  The law defines prostitution as any act, transaction,
26
scheme, or design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration. 27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that
serve no other purpose than satisfy the market for violence, lust, or pornography.  The Court
29

weighed the property rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately
through internet connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds
of obscenity.  The Court will not declare Section 4(c)(1) unconstitutional where it stands a
30

construction that makes it apply only to persons engaged in the business of maintaining, controlling,
or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act
No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of
2009  (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government
31

from invoking the ACPA when prosecuting persons who commit child pornography using a computer
system. Actually, ACPA’s definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this
ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty.  The potential for uncontrolled
32

proliferation of a particular piece of child pornography when uploaded in the cyberspace is

incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"  clearly relates to the prosecution of
33

persons who aid and abet the core offenses that ACPA seeks to punish.  Petitioners are wary that a
34

person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx
(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic

communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and

(cc) The commercial electronic communication does not purposely include

misleading information in any part of the message in order to induce the recipients to
read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu. 35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters the recipient’s domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients always have the option
to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.  The State cannot rob him of this right
36

without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements

are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:

1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods
or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be
brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means which may be
devised in the future.

Petitioners lament that libel provisions of the penal code  and, in effect, the libel provisions of the
37

cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.  Petitioners argue that inferring "presumed malice" from the accused’s defamatory
38

statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be
overturned as the Court has done in Fermin v. People  even where the offended parties happened
39

to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice. 40

There is "actual malice" or malice in fact  when the offender makes the defamatory statement with
41

the knowledge that it is false or with reckless disregard of whether it was false or not.  The reckless
42

disregard standard used here requires a high degree of awareness of probable falsity. There must
be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as
to the truth of the statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion
of public affairs.
44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice
in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious
in itself, but there was also malice in fact, as there was motive to talk ill against complainants during
the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of
the assailed statement.  For his defense, the accused must show that he has a justifiable reason for
45

the defamatory statement even if it was in fact true. 46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the Philippines,  the United Nations Human Rights Committee
47

(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute
an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be
admitted, unless the imputation shall have been made against Government employees with respect
to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle
freedom of expression.  Indeed, the ICCPR states that although everyone should enjoy freedom of
48

expression, its exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law. 49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and
that the government has an obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from
that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.  In a

50

sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply options offered by the networking site
as well as by the speed with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
 (a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.  The legislature is not required to define every single
51

word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a
person aids or abets another in destroying a forest,  smuggling merchandise into the country,  or
52 53

interfering in the peaceful picketing of laborers,  his action is essentially physical and so is
54

susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.  Based on a recent survey, the
55

Philippines ranks 6th in the top 10 most engaged countries for social networking.  Social networking
56

sites build social relations among people who, for example, share interests, activities, backgrounds,
or real-life connections.
57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.  Users register at this site, create a personal
58

profile or an open book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.  A user can post a statement, a
59

photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s
privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone
on Facebook can react to the posting, clicking any of several buttons of preferences on the
program’s screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views about the same, such as
"This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his
own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in
the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of
copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or
Sun; d) the internet café that may have provided the computer used for posting the blog; e) the
person who makes a favorable comment on the blog; and f) the person who posts a link to the blog
site.  Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider).
60

She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).
One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and
the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link
to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and
making Comments on the assailed posting. A lot of them even press the Share button, resulting in
the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world,
if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions
of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of
their response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties
Union,  a case involving the constitutionality of the Communications Decency Act of 1996. The law
61

prohibited (1) the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing
use of an interactive computer service to send to a specific person or persons under 18 years of age
or to display in a manner available to a person under 18 years of age communications that, in
context, depict or describe, in terms "patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of
freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter
of special concern for two reasons. First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two
years in prison for each act of violation. The severity of criminal sanctions may well cause speakers
to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for insisting that the statute
not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided
by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and
friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a person’s reputation and
peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of
protected freedoms. 62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement.  The terms "aiding or
63

abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.  Hence, Section 5 of the cybercrime law
64

that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,  "we must view these statements of the Court on the inapplicability of the overbreadth and
65

vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to
mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing. 66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes
from statutes violating free speech. A person who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence. 67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes
child pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?  Byars highlights a feature in the American law on child pornography that the
68

Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally protected. 69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent
to Facebook to access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on the basis of this
information.  As the source of this information, is the user aiding the distribution of this
70

communication? The legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable
unless consummated.  In the absence of legislation tracing the interaction of netizens and their level
71

of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on
Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to
use these because the system supervisor is alerted.  If Section 5 that punishes any person who
72

willfully attempts to commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.  While
73

this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be
identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar crimes
committed using other means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set
of acts may be prosecuted and penalized simultaneously under two laws, a special law and the
Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.  With the exception of the crimes
74

of online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4)
is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.  Charging the offender under both laws
75

would be a blatant violation of the proscription against double jeopardy. 76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the
ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the constitutional prohibition against double
jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections
4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to
maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(Ph₱50,000.00) but not exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand
pesos (Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission
of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at some prior time the act
or omission was but an element of another offense or might just have been connected with another
crime.  Judges and magistrates can only interpret and apply them and have no authority to modify or
77

revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection
or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data
in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim
that data showing where digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from government
snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,  that there is a compelling State
79

interest behind the law, and that the provision itself is narrowly drawn.  In assessing regulations
80

affecting privacy rights, courts should balance the legitimate concerns of the State against
constitutional guarantees. 81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good.  To do this, it is within the
82

realm of reason that the government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."  And this is precisely what Section 12 does. It
83

empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,  transmitting viruses,  lasciviously exhibiting sexual organs or sexual activity for favor or
84 85

consideration;  and producing child pornography  could easily evade detection and prosecution by
86 87

simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued search and
seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc  that certain
88

constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to be
left alone has been regarded as the beginning of all freedoms. 89

But that right is not unqualified. In Whalen v. Roe,  the United States Supreme Court classified
90

privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves
the right to independence in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or recording of traffic data in real-time seek
to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.  In determining whether or not a matter is
91

entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable. 92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general public’s point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his cellphone number and the
cellphone number of his recipient, accompanying the message sent. It is this information that creates
the traffic data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post letters have
no expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may
be likened to parcels of letters or things that are sent through the posts. When data is sent from any
one source, the content is broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email,
online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.  The difference is that traffic data sent through the internet at times across the ocean do not
93

disclose the actual names and addresses (residential or office) of the sender and the recipient, only
their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to
the caller in the same way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,  cited by the Solicitor General, the United States Supreme Court reasoned that
94

telephone users in the ‘70s must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that even if there is an expectation
that phone numbers one dials should remain private, such expectation is not one that society is
prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with
one another over cyberspace except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace communication. The conveyance of
this data takes them out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under surveillance. With enough traffic
data, analysts may be able to determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the public may expect to
be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure
that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion
of the police. Replying to this, the Solicitor General asserts that Congress is not required to define
the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of
a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be
removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn
to preclude abuses. 95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently
held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical
or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy
and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."  The Court must
96

ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence
in a case, the mere furnishing to such service provider of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to preserve the computer data until the termination of
the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 203391  claim that Section 13 constitutes an undue deprivation of the right to
97

property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from receipt of the order
for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance
of such orders. The process of preserving data will not unduly hamper the normal transmission or
use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for the purpose of
investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power
to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers. 98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement authorities shall likewise have the following powers
and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of
the computer data storage medium and to make a return thereon but in no case for a period longer
than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures. On its face, however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection, preservation, and use of computer
system or data that have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken. Section 15 does not
appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination,
destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user’s right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it.
He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie
found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.

Computer data  may refer to entire programs or lines of code, including malware, as well as files that
99

contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the
service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The Department of Justice order
cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates
as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so
would make him judge, jury, and executioner all rolled into one. 100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule.  Section 19, however, merely
101

requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically
the orders from law enforcement authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,  Section 20 necessarily incorporates elements of the offense which are defined therein. If
102

Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty
(30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.  The second test mandates adequate
1avvphi1

guidelines or limitations in the law to determine the boundaries of the delegate’s authority and
prevent the delegation from running riot. 103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement
a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and user’s assets.  This definition serves as the parameters within which CICC
104

should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at
both the domestic and international levels, and by providing arrangements for fast and reliable
international cooperation."  This policy is clearly adopted in the interest of law and order, which has
105

been considered as sufficient standard.  Hence, Sections 24 and 26(a) are likewise valid.
106

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited

commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time;

and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual

organs or sexual activity for favor or consideration;
 f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for
six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center

(CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect
to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others
who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4)
on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)
(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section
7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of
2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID
and UNCONSTITUTIONAL.

SO ORDERED.

G.R. No. 202692               November 12, 2014

EDMUND SYDECO y SIONZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
 DECISION

VELASCO, JR., J.:

Assailed and sought to be set aside in this petition for review under Rule 45 are the December 28,
2011 Decision  and July 18, 2012 Resolution  of the Court of Appeals (CA) in CA-G.R. CR No.
1 2

33567. The assailed issuances affirmed the decision  of the Regional Trial Court (RTC) of Manila,
3

Branch 12, in Criminal Case Nos. 09-270107-08 which, in turn, affirmed that of the Metropolitan Trial
Court (MeTC) in Manila adjudging petitioner Edmund Sydeco (Sydeco) guilty of drunk driving and
resisting arrest. 4

The factual backdrop:

On July 20, 2006, separate Informations, one for Violation of Section 56(f) of Republic Act No. (RA)
4136  and another, for Violation of Article 151 of the Revised Penal Code (RPC)  were filed against
5 6

petitioner Sydeco with the MeTC in Manila and eventually raffled to Branch 14 of that court. The
accusatory portions of the interrelated informations, docketed as Crim. Case No. 052527-CN for the
first offense and Crim. Case No. 052528-CN for the second, respectively read:

1. Crim. Case No. 052527-CN

That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, being then the
driver and owner of a car, did then and there willfully and unlawfully, drive, manage and operate the
same along Roxas Blvd. cor. Quirino Avenue, Malate, in said city, while under the influence of liquor,
in violation of Section 56(f) of Republic Act 4136.

Contrary to law.

2. Crim. Case No. 052528-CN

That on or about June 11, 2006, in the City of Manila, Philippines, the said accused, did then and
there willfully and unlawfully resist and disobey P/INSP Manuel Aguilar, SPO2 Virgilio Paulino, SPO4
Efren Bodino and PO3 Benedict Cruz III, bonafide member of the Philippine National Police, Malate
Police Station-9, duly qualified and appointed, and while in the actual performance of their official
duties as such police officers, by then and there resisting, shoving and pushing, the hands of said
officers while the latter was placing him under arrest for violation of Article 151 of the Revised Penal
Code.

Contrary to law.

By Order of September 19, 2006, the MeTC classified the cases as falling under, thus to be
governed by, the Rule on Summary Procedure.

When arraigned, petitioner, as accused, pleaded "Not Guilty" to both charges.

During the trial of the two consolidated cases, the prosecution presented in evidence the oral
testimonies of SPO4 Efren Bodino (Bodino),  PO2 Emanuelle Parungao  and Ms. Laura Delos
7 8

Santos,  plus the documents each identified while in the witness box, among which was Exh. "A",
9

with sub-markings, the Joint Affidavit of Arrest  executed by SPO2 Bodino and two other police
10

officers. The defense’s witnesses, on the other hand, consisted of Sydeco himself, his wife, Mildred,
and Joenilo Pano.

The prosecution’s version of the incident, as summarized in and/or as may be deduced from, the CA
decision now on appeal is as follows:

On or about June 11, 2006, P/Insp. Manuel Aguilar (Aguilar), SPO4 Bodino, PO3 Benedict Cruz III
and another officer were manning a checkpoint established along Roxas Boulevard corner Quirino
Ave., Malate, Manila when, from about twenty (20) meters away, they spotted a swerving red Ford
Ranger pick up with plate number XAE-988. Petitioner was behind the wheel. The team members,
all inuniform, flagged the vehicle down and asked the petitioner to alightfrom the vehicle so he could
take a rest at the police station situated nearby,before he resumes driving.  Petitioner, who the
11

policemen claimed was smelling of liquor, denied being drunk and insisted he could manage to
drive. Then in a raised voice, petitioner started talking rudely to the policemen and in fact yelled at
P/Insp. Aguilar blurting: "P…g ina mo, bakit mo ako hinuhuli." Atthat remark, P/Insp. Aguilar, who
earlier pointed out to petitioner that his team had seen him swerving and driving under the influence
of liquor, proceeded to arrestpetitioner who put up resistance. Despite petitioner’s efforts to parry the
hold on him, the police eventually succeeded in subduing him who was then brought to the Ospital
ng Maynila where he was examined and found to be positive of alcoholic breath per the Medical
Certificate issuedby that hospital, marked as Exh. "F". Petitioner was then turned over to the Malate
Police Station for disposition.  Petitioner, on the other hand, claimed tobe a victim in the incident in
12

question, adding in this regard that he has in fact filed criminal charges for physical injuries, robbery
and arbitrary detention against P/Insp. Aguilar et al. In his Counter-Affidavit  and his Complaint-
13

Affidavit  appended thereto, petitioner averred that, in the early morning of June 12, 2006, he
14

together with Joenilo Pano and Josie Villanueva, cook and waitress, respectively, in his restaurant
located along Macapagal Ave., Pasay City, were on the way home from on board his pick-up when
signaled to stop by police officers at the area immediately referred to above. Their flashlights trained
on the inside of the vehicle and its occupants, the policemen then asked the petitioner to open the
vehicle’s door and alight for a body and vehicle search, a directive he refused to heed owing to a
previous extortion experience. Instead, he opened the vehicle window, uttering, "plain view lang
boss, plain view lang." Obviously irked by this remark, one of the policemen, P/Insp. Aguilar, as it
turnedout, then told the petitioner that he was drunk, pointing to three cases of empty beer bottles in
the trunk of the vehicle. Petitioner’s explanation about being sober and that the empty bottles
adverted to came from his restaurant was ignored as P/Insp. Aguilar suddenly boxed him (petitioner)
on the mouth and poked a gun at his head, at the same time blurting, "P…g ina mo gusto mo tapusin
na kita dito marami ka pang sinasabi." The officers then pulled the petitioner out of the driver’s seat
and pushed him into the police mobile car, whereupon he, petitioner, asked his companions to call
up his wife. The policemen then brought petitioner to the Ospital ng Maynila where they succeeded
in securing a medical certificate under the signature of one Dr. Harvey Balucating depicting
petitioner as positive of alcoholic breath, although he refused to be examined and no alcohol breath
examination was conducted. He was thereafter detained from 3:00 a.m.of June 12, 2006 and
released in the afternoon of June 13, 2006. Before his release, however, he was allowed to undergo
actual medical examination where the resulting medical certificate indicated that he has sustained
physical injuries but negative for alcohol breath. Ten days later, petitioner filed his Complaint-
Affidavit against Dr. Balucating, P/Insp. Aguilar and the other police officers.

Petitioner also stated in his counter-affidavit that, under Sec. 29 of R.A. 4136, or the Land
Transportation and Traffic Code, the procedure for dealing with a traffic violation is not to place the
erring driver under arrest, but to confiscate his driver’s license.

On June 26, 2009, the MeTC rendered judgment finding petitioner guilty as charged, disposing as
follows:

WHEREFORE, premises considered, the prosecution having established the guilt of the accused
beyond reasonable doubt, his conviction of the offenses charges is hereby pronounced. Accordingly,
he is sentenced to:

1. Pay a fine of two hundred fifty pesos (₱250.00) for Criminal Case No. 052527-CN; and

2. Suffer imprisonment of straight penalty of three (3) months and pay a fine of two hundred
fifty pesos (₱250.00) for Criminal Case No. 052528-CN.

For lack of basis, no civil liability is adjudged.

The Branch Clerk of Court is directed to certify to the Land Transportation Office the result of this
case, stating further the data required under Section 58  of Republic Act 4136.
15

Therefrom, petitioner appealed to the RTC on the main submissions that the MeTC erred in: 1)
according credit to the medical certificate issued by Dr. Balucating, although the records custodian of
Ospital ng Maynila was presented to testify thereon instead of the issuing physician, and 2)
upholding the veracity of the joint affidavit of arrest of P/INSP Manuel Aguilar, SPO4 Efren Bodino,
and PO3 Benedict Cruz III, considering that only SPO4 Bodino appeared in court to testify.

By Decision  dated February 22, 2010, the RTC affirmed the conviction of the petitioner, addressing
16

the first issue thus raised in the appeal in the following wise: Dr. Balucating’s failure to testify relative
to petitioner’s alcoholic breath, as indicatedin the medical certificate, is not fatal as such testimony
would only serve to corroborate the testimony on the matter of SPO4 Bodino, noting thatunder the
Rules of Court,  observations of the police officers regarding the petitioner’s behavior would suffice
17

to support the conclusion of the latter’s drunken state on the day he was apprehended. 18

Apropos the second issue, the RTC pointed out that the prosecution has the discretion as to how
many witnesses it needs to present before the trial court, the positive testimony of a single credible
witness as to the guilt of the accused being reasonable enough to warrant a conviction. The RTC
cited established jurisprudence  enunciating the rule that preponderance is not necessarily with the
19

greatest number as "[W]itnesses are to be weighed, not numbered." Following the denial by the RTC
of his motion for reconsideration, petitioner went to the CA on a petition for review, the recourse
docketed as CA-G.R. CR No. 33567. By a Decision dated December 28, 2011, as would be
reiterated in a Resolution of July 18, 2012, the appellatecourt affirmed that of the RTC, thus:
WHEREFORE, the petition is DENIED. The assailed Decision dated February 22, 2010 of the RTC,
Manila, Branch 12, is AFFIRMED.

SO ORDERED.

Hence, this petition on the following stated issues:

I. The CA erred in upholding the presumption of regularity in the performance of duties by

the police officers; and

II. The CA erred in giving weight to the Medical Certificate issued by Dr. Harvey Balucating,
in the absence of his testimony before the Court.

The petition is meritorious.

Prefatory, the rule according great weight, even finality at times, to the trial court’s findings of fact
does hold sway when, as here, it appears in the record that facts and circumstancesof weight and
substance have been overlooked, misapprehended or misapplied in a case under
appeal.  Corollary, it is basic that an appeal in criminal prosecutions throws the whole case wide
20

open for review, inclusive of the matter of credibility and appreciation of evidence. ` Peace officers
21

and traffic enforcers,like other public officials and employees are bound to discharge their duties with
prudence, caution and attention, which careful men usually exercise in the management of their own
affairs.
22

In the case at bar, the men manning the checkpoint in the subject area and during the period
material appearednot to have performed their duties as required by law, or at least fell short of the
norm expected of peace officers. They spotted the petitioner’s purported swerving vehicle. They then
signaled him to stop which he obeyed. But they did not demand the presentation of the driver’s
license orissue any ticket or similar citation paper for traffic violation as required under the particular
premises by Sec. 29 of RA 4136, which specifically provides:

SECTION 29. Confiscation of Driver’s License. – Law enforcement and peace officers of other
agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act or
any regulations issued pursuant thereto, or of local traffic rules and regulations x x x confiscate the
license ofthe driver concerned and issue a receipt prescribed and issuedby the Bureau therefor
which shall authorize the driver to operate a motor vehicle for a period not exceeding seventy-two
hours from the time and date of issue of said receipt. The period so fixed in the receipt shall not be
extended, and shall become invalid thereafter.x x x (Emphasis added.) Instead of requiring the
vehicle’s occupants to answer one or two routinary questions out of respectto what the Court has, in
Abenes v. Court of Appeals,  adverted to as the motorists’ right of "free passage without [intrusive]
23

interruption," P/Insp. Aguilar, et al. engaged petitioner in what appears to be an unnecessary

conversation and when utterances were made doubtless not to their liking, they ordered the latter to
step out of the vehicle, concluding after seeing three (3) empty cases of beer at the trunk of the
vehicle that petitioner was driving under the influence of alcohol. Then petitioner went on with his
"plain view search" line. The remark apparently pissed the police officers off no end as one of them
immediately lashed at petitioner and his companions as "mga lasing" (drunk) and to get out of the
vehicle, an incongruous response to an otherwise reasonable plea. Defense witness, Joenilo Pano,
graphically described this particular event in his sinumpaang salaysay, as follows:

x x x matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash light sa loob ng
sasakyan at sa aming mga mukha.

x x x isang pulis ang nag-utos sa aminna kami ay magsi-baba at buksan ang pintuan ng nasabing
sasakyan.

x x x dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan niya ako at ang aking
kasama kong waitress na bumaba.

x x x iginiit ni Kuya sa mga pulisang salitang "PLAIN VIEW LANG BOSS, PLAIN VIEW LANG" pero
iyon ayhindi nila pinansin. Sa halip as isang pulis ang nagsabi na "MGA LASING KAYO HETO MAY
CASE PA KAYO NG BEER".

x x x habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi ng sasakyan habang
ang isang pulis ang biglang sumuntok sa bibig ni Kuya, nagbunot ng baril at tinutukan sa ulo si
Kuya.

x x x dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay tinutukan ng baril. x x
x na matapos suntukin si Kuya aypinagtulungan siya ng mga pulis na ilabas sa sasakyan at nang
mailabas siyaay pinagtulakan siya ng mga pulis sa gilid ng kalsada habang hawak ang kanilang
baril.
24

Pano’s above account ironicallyfinds in a way collaboration from the arresting officers themselves
who admitted that they originally had no intention to search the vehicle in question nor subject its
occupants to a body search. The officers wrote in their aforementioned joint affidavit:

xxxx

That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of RA 4136 (Driving under
the influence of liquor), and violation of Article 151 of the RPC (Resisting Arrest) x x x committed on
or about 3:30A.M., June 11, 2006 along x x x Malate, Manila. x x x He began to raise his voice and
converse with us rudely without considering that we are in uniform, on duty and performing our job.
P/INSP Manuel Aguilar pointed out that we saw him swerving and driving under the influence of
liquor that was why we are inviting him to our police station in which our intention was to make him
rest for a moment before he continue to drive. x x x (Emphasis added.)

In fine, at the time of his apprehension, or when he was signaled to stop, to be precise, petitioner
has not committed any crime or suspected of having committed one. "Swerving," as ordinarily
understood,refers to a movement wherein a vehicle shifts from a lane to another or to turn aside
from a direct course of action or movement.  The act may become punishable when there is a sign
25

indicating that swerving is prohibited or where swerving partakes the nature ofreckless driving, a
concept defined under RA 4136, as:

SECTION 48. Reckless Driving. – Noperson shall operate a motor vehicle on any highway recklessly
or without reasonable caution considering the width, traffic, grades, crossing, curvatures, visibility
and other conditions of the highway and the conditions of the atmosphere and weather, or so as to
endanger the property or the safetyor rights of any person or so as to cause excessive or
unreasonable damage to the highway.

Swerving is not necessarily indicative of imprudent behavior let alone constitutive of reckless driving.
To constitute the offense of reckless driving, the act must be something more than a mere
negligence in the operation of a motor vehicle, and a willful and wantondisregard of the
consequences is required.  Nothing in the records indicate that the area was a "no swerving or
26

overtaking zone." Moreover, the swerving incident, if this be the case, occurred at around 3:00 a.m.
when the streets are usually clear of moving vehicles and human traffic, and the danger to life, limb
and property to third persons is minimal. When the police officers stopped the petitioner’s car, they
did not issue any ticket for swerving as required under Section 29 of RA 4136. Instead, they
inspected the vehicle, ordered the petitioner and his companions to step down of their pick up and
concluded that the petitioner was then drunk mainly because of the cases of beer found at the trunk
of the vehicle. On re-direct examination, SPO4 Bodino testified:

Q: On that particular date, time and place … what exactly prompted you to arrest the accused (sic)
the charged in for Viol. of Section 56(f) of R.A. 4136?

A: Noong mag check-up kami, naamoynamin na amoy alak siya at yung sasakyan ay hindi maganda
ang takbo.

Q: Now you stated in your affidavit of arrest Mr. Witness that you spotted the vehicle of the accused
swerving, is that correct?

A: Yes, sir.

Q. Is that also the reason why you apprehended him?

A: Yes, sir.

Q: And what happened after Mr. Witness, when you approached the vehicle of the accused?

A: The accused was in a loud voice. He was asking, "Bakit daw siya pinahihinto?"

xxxx

Q: How do you describe the resistance Mr. Witness?

A: He refused to ride with usgoing to the hospital, Your Honor.

xxxx 27
Going over the records, it is fairly clear that what triggered the confrontational stand-off between the
police team, on one hand, and petitioner on the other, was the latter’s refusal to get off of the vehicle
for a body and vehicle search juxtaposed by his insistence on a plain view search only. Petitioner’s
twin gestures cannot plausibly be considered as resisting a lawful order.  He may have sounded
28

boorish or spoken crudely at that time, but none of this would make him a criminal. It remains to
stress that the petitioner has not, when flagged down, committed a crime or performed an overt act
warranting a reasonable inference of criminal activity. He did not try to avoid the road block
established. He came to a full stop when so required to stop. The two key elements of resistance
and serious disobedience punished under Art. 151 of the RPC are: (1) That a person in authority or
his agent is engaged in the performance of official duty or gives a lawful order to the offender; and
(2) That the offender resists or seriously disobeys such person or his agent. 29

There can be no quibble that P/Insp. Aguilar and his apprehending team are persons in authority or
agents of a person in authority manning a legal checkpoint. But surely petitioner’s act of exercising
one’s right against unreasonable searches  to be conducted in the middle of the night cannot, in
30

context, be equated to disobedience let alone resisting a lawful order in contemplation of Art. 151 of
the RPC. As has often been said, albeit expressed differently and under dissimilar circumstances,
the vitality of democracy lies not in the rights it guarantees, but in the courage of the people to assert
and use them whenever they are ignored or worse infringed.  Moreover, there is, to stress, nothing
31

in RA 4136 that authorized the checkpoint-manning policemen to order petitioner and his
companions to get out of the vehicle for a vehicle and body search. And it bears to emphasize that
there was no reasonable suspicion of the occurrence of a crime that would allow what jurisprudence
refers to as a "stop and frisk" action. As SPO4 Bodino no less testified, the only reason why they
asked petitioner to get out of the vehicle was not because he has committed a crime, but because of
their intention toinvite him to Station 9 so he could rest before he resumes driving. But instead of a
tactful invitation, the apprehending officers, in an act indicative of overstepping of their duties,
dragged the petitioner out of the vehicle and, in the process of subduing him, pointed a gun and
punched him on the face. None of the police officers, to note, categorically denied the petitioner’s
allegation aboutbeing physically hurt before being brought to the Ospital ng Maynila to be tested for
intoxication. What the policemen claimed was that it took the three (3) of them to subdue the fifty-five
year old petitioner. Both actions were done in excess of their authority granted under RA 4136. They
relied on the medical certificate issued by Dr. Balucating attesting that petitioner showed no physical
injuries. The medical certificate was in fact challenged not only because the petitioner insisted at
every turn that he was not examined, but also because Dr. Balucating failed to testify as to its
content. Ms. Delos Santos, the medical record custodian ofthe Ospital ng Maynila, testified, but only
to attest that the hospital has a record of the certificate. The trial court, in its decision, merely stated:

At the outset, the records of the case show that the same were not testified upon by the doctor who
issued it.  Instead, the Records Custodian of the Ospital ng Maynila was presented by the
1âwphi1

Prosecution to testify on the said documents.

However, although the doctor who examined the accused was unable to testify to affirm the contents
of the Medical Certificate he issued (re: that he was found to have an alcoholic breath), this court
finds that the observation of herein private complainants as to the accused’s behavior and condition
after the incident was sufficient.

Under Section 50 of Rule 130 of the Revised Rules of evidence:

The opinion of a witness for which proper basis is given, may be received in evidence regarding x x
xx

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of
a person Under Section 15 of the Revised Rules on Summary Procedure, "at the trial, the affidavits
submitted by the parties shall constitute the direct testimonies of the witnesses who executed the
same." 32

In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical certificate Dr.
Balucating issued on June 12, 2006 as to petitioner’s intoxicated state, as the former was not able to
testify as to its contents, but on the testimony of SPO4Bodino, on the assumption that he and his
fellow police officers were acting in the regular performance of their duties. It cannot be emphasized
enough that smelling of liquor/alcohol and be under the influence of liquor are differing concepts.
Corollarily, it is difficult to determine with legally acceptable certainty whether a person is drunk in
contemplation of Sec. 56(f) of RA 4136 penalizing the act of driving under the influence of alcohol.
The legal situation has of course changed with the approval in May 2013 of the Anti-Drunk and
Drugged Driving Act of 2013 (RA 10586) which also penalizes driving under the influence of alcohol
(DUIA),  a term defined under its Sec. 3(e) as the "act of operating a motor vehicle while the driver’s
33

blood alcohol concentration level has, after being subjected to a breath analyzer test reached the
level of intoxication as established jointly by the [DOH], the NAPOLCOM] and the [DOTC]. And
under Sec. 3(g) of the IRR of RA 10586, a driver of a private motor vehicle with gross vehicle weight
not exceeding 4,500 kilograms who has BAC [blood alcohol concentration] of 0.05% or higher shall
be conclusive proof that said driver isdriving under the influence of alcohol. Viewed from the prism of
RA 10586, petitioner cannot plausibly be convicted of driving under the influence of alcohol for this
obvious reason: he had not been tested beyond reasonable doubt, let alone conclusively, for
reaching during the period material the threshold level of intoxication set under the law for DUIA, i.e.,
a BAC of 0.05% or over. Under Art. 22 of the RPC,  penal laws shall be given retroactive insofar
34

asthey are favorable to the accused. Section 19 of RA 10586 expressly modified Sec. 56(f) of RA
4136. Verily, even by force of Art. 22 ofthe RPC in relation to Sec. 3(e) of RA 10586 alone, petitioner
could very well be acquitted for the charge of driving under the influence of alcohol, even if the
supposed inculpatory act occurred in 2006.

Parenthetically, the Office of the City Prosecutor of Manila, per its Resolution  of November 21, 2006
35

found, on the strength of another physical examination from the same Ospital ng Maynila conducted
by Dr. Devega on the petitioner on the same day,June 12, but later hour, probable cause for slight
physical injuries against P/Insp. Aguilar et al. That finding to be sure tends to indicate that the police
indeed man handled the petitioner and belied, or at least cancelled out, the purported Dr.
Balucating’s finding as to petitioner’s true state.

The Court must underscore at this juncture that the petitioner, after the unfortunate incident, lost no
time incommencing the appropriate criminal charges against the police officers and Dr. Balucating,
whomhe accused of issuing Exh. "F" even without examining him. The element of immediacy in the
filing lends credence to petitioner’s profession of innocence, particularly of the charge of disobeying
lawful order or resisting arrest. Certainly not to be overlooked is the fact that petitioner,in so filing his
complaint, could not have possibly been inspired by improper motive, the police officers being
complete strangers to him and vice versa. Withal, unless he had a legitimate grievance, it is difficult
to accept the notion that petitioner would expose himself to harm’s way by filing a harassment
criminal suit against policemen.

Conviction must come only after it survives the test of reason.  It is thus required that every
36

circumstance favoring one’s innocence be duly taken into account.  Given the deviation of the police
37

officers from the standard and usual procedure in dealing with traffic violation by perceived drivers
under the influence of alcoholand executing an arrest, the blind reliance and simplistic invocation by
the trial court and the CA on the presumption of regularity in the conduct of police duty is clearly
misplaced. As stressed in People v. Ambrosio,  the presumption of regularity is merely just that, a
38

presumption disputable by contrary proof and which when challenged by the evidence cannot be
regarded as binding truth. And to be sure, this presumption alone cannot preponderate over the
presumption of innocence that prevails if not overcome by proof that obliterates all doubts as to the
offender’s culpability. In the present case, the absence of conclusive proof being under the influence
of liquor while driving coupled with the forceful manner the police yanked petitioner out of his vehicle
argues against or at least cast doubt on the finding of guilt for drunken driving and resisting arrest.

In case of doubt as to the moral certainty of culpability, the balance tips in favor of innocence or at
least infavor of the milderform of criminal liability. This is as it should be. For, it is basic, almost
elementary, that the burden of proving the guiltof an accused lies on the prosecution which must rely
on the strength of its evidence and noton the weakness of the defense.

WHEREFORE, in light of all the foregoing, the appealed Decision and Resolution of the Court of
Appeals in CA-G.R. CR No. 33567 are hereby REVERSED and SET ASI:OE. Petitioner is hereby
acquitted of the crimes charged in Criminal Case No. 052527-CN and Criminal Case No. 052528-
CN.

No pronouncement as to costs.

G.R. No. 193478               June 23, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RODOLFO P. FERNANDEZ, NELSON E. TOBIAS, and FRANK R. BAAY, Accused,
NELSON E. TOBIAS, Accused-appellant.

DECISION

SERENO, CJ:

This is an appeal filed by accused-appellant Nelson E. Tobias from the Decision  dated 28 August
2

2009 issued by the Special Third Division and from the Resolution  dated 9 February 2010 issued by
3

the Special Former Special Third Division of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
02838.

THE ANTECEDENT FACTS

Rodolfo P. Fernandez, Nelson E. Tobias, Frank R. Baay, Joel B. Uy, Eduardo D. Manuel and Nenita
P. Manuel were charged with violation of Section 5, in relation to Section 26, Article II of Republic
Act (R.A.) No. 9165 or The Comprehensive Dangerous Drugs Act of 2002. The Information  reads:4

That on or about the 22nd day of June 2004 in the City of Mandaluyong, Philippines, a place within
the jurisdiction of this Honorable Court, the above-named accused, without any lawful authority,
conspiring and confederating together and mutually helping and aiding one another, did then and
there, willfully, unlawfully and feloniously sell and deliver or distribute to a PDEA poseur-buyer one
(1) kilo of white powder substance which was found positive to the test of cocaine, for an agreed
amount of Two Million Pesos (₱2,000,000.00), Philippine Currency without the corresponding
license or prescription, in violation of the above cited law. CONTRARY TO LAW. 5

All the accused pleaded not guilty to the charge. 6

PROSECUTION’S VERSION

The prosecution presented eight witnesses, namely: (1) Police Inspector (P/Insp.) Antonietta
Abillonar of the Philippine National Police (PNP) Crime Laboratory; (2) Philippine Drug Enforcement
Agency (PDEA) operatives, Senior Police Officer (SPO) 3 Pedro Barbero, (3) Police Senior
Inspector (P S/Insp.) Prospero Bona; (4) Police Officer (PO) 2 Martin Francia; (5) PO1 Rogelio
Hernando; (6) SPO1 Catalino Gonzales, Jr.; (7) PO1 Narciso Padua; and (8) P S/Insp. Sandra
Decena Go of the PNP Crime Laboratory.

Their testimonies reveal that on 16 June 2004, PO1 Padua met with the accused Fernandez, a
retired Makati City police at the latter’s house to negotiate Fernandez’s possible surrender of 150
kilos of cocaine in exchange for a monetary reward. The two were known to each other due to their
past positions in the police force. Not satisfied with the monetary award being offered, Fernandez
instead asked Padua to find a buyer of the cocaine. Pretending to have a buyer, Padua asked for
samples. Hence, on the night of 20 June 2004, Fernandez called up to tell him to go to the office of
the Eagles of Makati on 21 June2004 to receive the samples. The samples given by Fernandez
were delivered to Bona, who brought it to a forensic chemist at the crime laboratory for examination.
They turned out to be cocaine. Bona then formed a buy-bust team composed of Barbero, Hernando,
and Gonzales as back-ups and Padua as the poseur-buyer. Also prepared was boodle money
consisting of cut newspapers and photocopies of ₱1,000 bills supposedly amounting to ₱2 million,
which was to be used as buy-bust money. 7

On the morning of 22 June 2004, the team went to the house of Fernandez on board two vehicles
and parked 20 meters away. Padua alighted, took a taxi and proceeded to the house where
Fernandez was waiting. The latter told him to wait because the person bringing the cocaine had not
yet arrived. Twenty minutes after, a car with three persons on board stopped in front of the house
and one of them, later identified as Tobias, alighted carrying a bag. Tobias, Fernandez and Padua
went inside while the car, with the two remaining persons on board, left. 8

Inside the house, Tobias showed the cocaine and gave it to Padua, while the latter handed the
boodle money to the former. After the exchange, Padua sent missed calls to the team through his
cellphone, the prearranged signal that the sale had been consummated. The team rushed to the
house and arrested Fernandez and Tobias. The boodle money was found in the latter’s possession.
When interrogated, Tobias admitted that the two other persons in the car were Baay and Uy, who
were waiting for him at the nearby McDonald’s restaurant. The police officers went to the restaurant
and arrested both men. Upon further interrogation, Fernandez and Tobias told the police that the
cocaine came from Cagayan Valley and was brought to Manila by the spouses Manuel, who at that
time were staying at the house of Tobias in Fort Bonifacio. The police proceeded to the identified
house and arrested the spouses. A forensic chemist examined the seized evidence which yielded a
positive result for cocaine.
9

DEFENSE’S VERSION

Accused Fernandez  interposed the defense of denial. He asserted that he had invited Padua to
10

help facilitate the licensing of the former’s firearm. Upon learning that Padua had been assigned to
PDEA, Fernandez asked him about the reward money if someone surrendered cocaine to PDEA.
Padua asked for a sample as he handed him a brochure, "Operation Private Eye," in which the
reward system for the surrender of drugs was spelled out. Fernandez supposedly relayed this
information to Tobias and told the latter to bring samples. On 20 June 2004, Tobias said that he
would arrive with the cocaine the next day. Fernandez then scheduled their meeting at his house on
21 June 2004. Padua arrived at 8:00 a.m., while Tobias and his friend "Mar" arrived an hour later.
Allegedly, Fernandez asked if they brought the drugs, and Tobias answered in the affirmative.
Meanwhile "Mar" brought out a wrapped item and gaveit to Padua, who eventually left with the
sample for testing. On the evening of the same day, Padua allegedly called up Fernandez and
informed him that the item had been found positive for cocaine. The latter immediately told Tobias to
bring the 150-kilo cocaine to be surrendered to Padua the following morning.

At 9:00 a.m. the following morning, Tobias arrived at the house of Fernandez. Padua, along with a
companion, arrived looking for "Mar." Upon learning that "Mar" was not around, Padua poked a gun
at both Tobias and Fernandez, handcuffed them, and placed them under arrest. The other PDEA
operatives arrived and searched the house for the drugs, but Fernandez argued that it was with
"Mar" who had not arrived. Padua insisted that he should tell them where "Mar" was, but Fernandez
did not know. The latter also claimed that there was no cocaine confiscated from his house on 22
June 2004.

Nelson Tobias  , on the other hand, claimed having known Padua for a long time, but denied having
11

knowledge of the existence of the 150 kilos of cocaine. Tobias also testified that he had
accompanied his friend, PO Marino Manuel, to Fernandez’s house. They were supposed to meet
Fernandez and Padua. Tobias was eventually told that the substance was really cocaine, and that
he should bring the remaining stuff to be surrendered the following morning. He told Marino Manuel
about the meeting and both agreed to meet at the designated place. When Tobias met with
Fernandez the following morning, Padua and the other operatives arrived. They immediately looked
for Marino Manuel, but he failed to show up. Tobias and Fernandez were arrested. Tobias claimed
that his wallet, wrist watch, driver’s license, firearm license, ATM card and .45 cal pistol were
confiscated by the PDEA operatives. 12

After Tobias was arrested, he was brought inside a parked van and interrogated regarding his
companions. He identified one of them as Joel Uy, whose name was in the phone book of the mobile
phone confiscated from the former. The police officers then began contacting Joel Uy and asking
about the whereabouts of Frank Baay. Thus, Tobias brought them to a McDonald’s branch along
Boni Avenue, where they nabbed Baay and later, Joel Uy, whom they asked to return tothat place.
Thereafter they were all brought to the PDEA office in Quezon City, where they were investigated. 13

Tobias admitted that he was a member of the Philippine Air Force, but that he had gone AWOL
when he went to Japan to work.  He denied that Padua showed him a belt bag containing money as
14

payment for the cocaine. 15

Meanwhile, Frank Baay alleged that hewas at the McDonald’s branch located at the corner of Boni
and Barangka Streets to meet Joel Uy. The latter was supposed to give him the price quotation for a
glass door and panel to be installed at the house of Baay’s neighbor. Around ten o’clock in the
morning, Joel Uy arrived and invited Baay for a ride, as the former would just drop off a friend at a
place nearby. When Baay boarded the car, he was introduced by Joel Uy to Nelson Tobias, the
friend who later dropped off on Fabella St., after which they returned to McDonald’s. But after their
brief conversation, Joey Uy left while Baay stayed behind to wait for a friend from whom Baay would
borrow money to pay for the latter’s electric bills. While waiting for that friend, however, Baay was
arrested by operatives from PDEA. 16

For his part, Joel Uy  claimed to be a businessman engaged in contracting and installing glass
17

windows, aluminum panels and aquariums. He admitted owning the green Mazda car driven by
Nelson Tobias when the latter went to the house of Fernandez at No. 19 Fabella St., Mandaluyong
City, at about ten o’clock in the morning of 22 June 2004. Joel Uy also admitted that he and Baay
were also in that car driven by Tobias, who alighted upon reaching the destination. Joel Uy then took
the wheels, made a U-turn and returned to McDonald’s to drop off Baay. The latter proceeded to
Malate to meet Engineer Arnel Alarcon, Paul Peteros and Wilson Seguerra. While he was in Malate,
Baay called and texted Joel Uy to ask him to come over. Past 2:00 p.m. the latter returned to
McDonald’s to look for Baay. Someone whom he later identified as Padua poked a gun at him. Joel
Uy testified later that Padua took his car key, cell phone, wrist watch and wallet, which had not been
returned to him until now. 18

Finally, Eduardo Manuel  claimed that when he was arrested by Barbero, Bona and Hernando of
19

PDEA, he was with his wife inside the house of Nelson Tobias in Fort Bonifacio. Prior to that date,
he had known Tobias for four years, but met Fernandez, Baay and Uy only for the first time on that
same date at the PDEA office. Earlier that day, he and his wife had just arrived at the house of
Tobias from their hometown in Cagayan Valley. He was accompanying his wife, who was applying
for a job. While he was resting in the living room, he heard someone knocking on the door. He
opened it and three armed men entered introducing themselves as members of the police, whom he
later identified as Hernando, Bona and Barbero. Then they poked him with their guns and searched
the house looking for Marino Manuel. When Eduardo told them that Marino Manuel was his cousin,
they got mad. They handcuffed him, brought him to the waiting car and left. Not long after, they
decided to return to the house of Tobias because somebody said, "Pare balikan natinang babae
dahil sigurado akong nanduon ang pera." Thus, they also took Eduardo’s wife, and the two of them
were brought to the PDEA headquarters in Quezon City.

THE RULING OF THE RTC

The Regional Trial Court (RTC),Branch 214 of Mandaluyong City, rendered its Decision  dated 16 20

February 2007, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered as follows:

(a) accused Rodolfo Fernandez, Nelson Tobias, Joel Uy and Frank R. Baay are hereby
found guilty beyond reasonable doubt of unlawfully selling, delivering, distributing one (1) kilo
of cocaine in violation of Section 5, in relation to Section 26 of Article II of R.A. 9165, and is
hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of TWO
MILLION (₱2,000,000.00) PESOS each; and

(b) accused Eduardo D. Manuel and Nenita P. Manuelare hereby ACQUITTED for
insufficiency of evidence and are hereby ordered RELEASED immediately from detention
unless detained for some other legal cause or causes.

Further, the cocaine taken and seized from the accused during the aforesaid operation are forfeited
and confiscated in favor of the Government and shall be turned over to the PDEA pursuant to law for
proper disposal without delay. Likewise, the green Mazda car used by accused in the perpetration of
the crime is ordered confiscated and forfeited in favor of the Government, and the evidence
custodian of the said vehicle is directed to turn over the same to this court for its scheduled auction
pursuant to Section 20, Article II of R.A. 9165.

SO ORDERED. 21

Pending the appeal of Fernandez, Tobias, and Baay, Fernandez died of cardiac arrest on 22
February 2008. His death resulted in the dismissal of his appeal on 27 June 2008,  insofar as he
22

was concerned, in a Resolution  dated 12 January 2011 issued by the Supreme Court Third
23

Division. Henceforth, the appeal pertained only to Tobias and Baay.

In his Brief,  Tobias claimed that the arresting officers failed to comply with the chain-of-custody
24

requirement and to preserve the integrity and evidentiary value of the seized dangerous drug.  On 25

the other hand, Baay claimed in his Brief  that the prosecution had failed to establish the identity of
26

the cocaine, as well as the whereabouts and the identity of the boodle money. 27

THE RULING OF THE CA

The CA affirmed the ruling of the RTC.

For failure of co-accused-appellant Frank Baay to file a Petition before the Supreme Court from the
CA Resolution dated 9 February 2010 denying his Motion for Reconsideration, the CA Decision
became final and executory on 27 February 2009. In a Resolution  dated 31 May 2010, Partial Entry
28

of Judgment was ordered issued by the CA as far as he was concerned. Hence, this appeal solely
concerning Tobias on the issue of the police officers’ noncompliance with the chain-of-custody
requirement. This issue, stated in his Brief and reiterated in his Supplemental Brief,  has been
29

brought before this Court.

THIS COURT’S RULING

We sustain the conviction of accused-appellant Nelson Tobias.

As stated in the Information, the accused were charged not only with the sale of cocaine but also
with the delivery and distribution thereof, which is committed by the mere delivery of the prohibited
drug. The consideration therefor is of no moment.  The law has defined "deliver" as "[a]ny act of
30

knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or
without consideration."  Upon a careful review of the records, we find that the elements of the crime
31

as stated above were proven by the prosecution.

Padua clearly and convincingly testified that Fernandez had agreed to sell or deliver the cocaine to
the former. This testimony, complemented by the testimonies of the other police officers, provided a
clear picture of the transaction as well as the roles of Fernandez, Tobias, Baay and Uy. As observed
by the trial court, Padua "testified in a clear, straightforward manner and despite the rigorous cross-
examination by the defense counsels, did not waver or hesitate in his testimony, a clear proof that he
was telling the truth."
32

The accused failed to destroy the credibility of the police officers. They failed to show a plausible
reason or ill motive on the part of the arresting officers to falsely impute to them such a serious and
unfounded charge. What the accused offered were merely denials and allegations of frame-up. But
these allegations are invariably viewed by this Court with disfavor, for they can easily be concocted
but are difficult to prove.  Further, their bare denials were not proven by convincing evidence.
33
Hence, full faith and credit are accorded to the police officers, for they are presumed to have
performed their duties in a regular manner in the absence of proof to the contrary. 34

The accused, too, in their attempt to discredit the police officers’ testimonies, point to
inconsistencies.  In any event, we have time and again said that a few discrepancies and
1âwphi1

inconsistencies in the testimonies of witnesses referring to minor details and not actually touching
upon the central fact of the crime do not impair their credibility. Instead of weakening their
testimonies, these inconsistencies tend to strengthen their credibility, because they discount the
possibility of their being rehearsed. 35

Meanwhile, in the present Petition, Tobias harps solely and exclusively on the absence of
compliance with the chain-of-custody rule.

The rule on the chain of custody under R.A. 9165,  together with its implementing rules and
36

regulations (IRR),  expressly demands the identification of the persons who handled the confiscated
37

items for the purpose of duly monitoring the authorized movements of the illegal drugs and/or drug
paraphernalia from the time these items were seized from the accused until the time they were
presented in court. 38

The rule also requires that the presentation and admission of the seized prohibited drug as an
exhibit be preceded by evidence to support a finding that the matter in question is what the
proponent claims it to be.  This requirement is essential to obviate the possibility of substitution, as
39

well as to ensure that doubts regarding the identity of the evidence are removed. The rule is meant
to ensure the monitoring and tracking of the movements and custody of the seized prohibited item
−from the accused, to the police, to the forensic laboratory for examination, and finally to its
presentation in evidence in court. Ideally, the custodial chain would include testimony about every
link in the chain or movement of the illegal drug, from the moment it is seized until itis finally adduced
in evidence.  It cannot be overemphasized, however, that testimony supporting a perfect chain is
40

almost always impossible to obtain. 41

We have held that the failure of the prosecution to show compliance with the procedural
requirements provided in Section 21 of Article II of R.A. 9165 and its IRR is not fatal.  What is of
42

utmost importance is the preservation of the integrity and evidentiary value of the seized items, as
these would be utilized in the determination of the guilt or innocence of the accused.  As long as the
43

chain of custody remains unbroken, the guilt of the accused will not be affected. 44

A careful scrutiny of the records reveals −through testimonial, documentary and object evidence −
that the chain-of-custody requirement was not broken.

The trial court notes that when SPO1 Padua,  who "testified in a clear, straightforward manner and
45

despite the rigorous cross-examination by the defense counsels, did not waver or hesitate in his
testimony,"  was asked how the evidence was preserved, he stated as follows:
46

A: Immediately upon confiscation of the said evidence it was turned over to the possession of
Captain Bona and delivered to the Philippine National Crime Laboratory for examination and the
PNCL is the one who holding [sic] the cocaine, sir. 47

P S/Insp. Prospero Bona also took the witness stand and narrated how the seized item was handled
as follows:

Q: Immediately after the taking from Tobias, what did you do to the item?

A: SPO1 Padua gave me the item, sir.

xxxx

A: x x x. I ordered the investigator to take hold of the items because the team leader is not the one
who handles the evidences [sic], it is the office[r] on case. It was the investigator who take
possession of the items, sir. 48

SPO1 Catalino Gonzales, Jr.,  the investigator of the case, likewise took the witness stand and
49

testified thus:

Q: Now, Mr. Witness, what did you do with this? You said you carry this from the place of arrest up
to the PDEA office?

A: I let one of my colleagues, SPO3 Barbero, one of the arresting officers, to mark the evidence,
ma’am.
SPO3 Barbero  testified, too, that he had marked the item with his initials "PGB," the date and his
50

signature, after which, he submitted it to the crime laboratory together with a letter-request dated 22
June 2004. 51

Finally, P/Insp. Antonietta Abillonar  of the PNP Crime Laboratory testified that she had conducted
52

an examination of the submitted specimen and found it positive for the presence of cocaine as
indicated in Chemistry Report No. D-271-04,  which was presented in court and made part of the
53

evidence for the prosecution.

The links of the chain of custody ofthe illegal drug are all accounted for by the testimonies of the
police officers who formed the buy-bust team: from the confiscation of the cocaine from petitioner
Tobias by the poseur-buyer, SPO1 Padua; its turnover to the buy-bust team leader, P S/Insp. Bona,
who gave it to SPO1 Gonzales, the investigator, and eventually to SPO3 Barbero who made the
marking; to the forwarding of the seized item to the crime laboratory for a forensic examination; up to
the presentation of the results to the court by P/Insp. Antonietta Abillonar. It is clear, then, that the
chain-of-custody requirement was properly observed by the police officers and proven by the
prosecution.

In the light of the foregoing, we see no reason to deviate from the RTC ruling and its affirmation by
the CA.  As to the penalty imposed by the RTC, we, too, find it in order and proper. WHEREFORE,
1âwphi1

premises considered, the appeal is hereby DENIED. The assailed Decision dated 28 August 2009
issued by the Special Third Division and the Resolution dated 9 February 2010 issued by the Special
Former Special Third Division of the Court of Appeals in CA-G.R. CR-H.C. No. 02838 are hereby
AFFIRMED in toto.

SO ORDERED.

G.R. No. 199100               July 18, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROSENDO AMARO, Accused-Appellant.

DECISION

PEREZ, J.:

For consideration is the appeal by appellant Rosendo Amaro from the Decision  dated 30 March
1

2011 of the Court of Appeals in CA-G.R. CR-I-IC No. 02801, affirming the 26 February 2007
Decision  of the Regional Trial Court (RTC) of Palawan and Puerto Princesa City, Branch 50, which
2

found him guilty beyond reasonable doubt of the crime of forcible abduction with rape.

On 26 May 1998, appellant was charged with the crime of forcible abduction with rape committed as
follows:

That on or about the 26th day of March, 1998 at more or less 5:00 in the afternoon in front of Boots
& Maya located at Mal var Street, Puerto Princesa City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of deceit atthe beginning and of force and
intimidation later and with lewd designs, did then and there willfully, unlawfully and feloniously
abduct one [AAA],  a seven (7) year old girl, by forcing her and took her to his house at Bgy.
3

Tagburos, Puerto Princesa City and without any justifiable reason, accused detained and deprived
her of her liberty for a period of twenty eight (28) [sic] days; that while she is being detained accused
ROSENDO AMARO had carnal knowledge of said AAA all committed against her will. 4

Appellant pleaded not guilty. Trial then proceeded. AAA, who was then only 7 years old,testified that
she was walking on her way home from school when she passed by Boots & Maya store. She met a
man, whom she later identified in court as the appellant, who asked her to buy cigarettes. After
buying the cigarettes and handing it to appellant, the latter gave her bread and banana cue. After
eating them, she suddenly became dizzy and passed out. AAA was brought to the house of
appellant. When she regained consciousness, she saw appellant naked. Appellant then undressed
her, kissed her on the lips and neck, and inserted his penis into her vagina, causing her to feel pain.
AAA cried but appellant covered her mouth with his hand. AAA was detained for six (6) days and
was raped five (5) times by appellant. AAA clarified thatappellant’s penis touched the outer portion of
her vagina.

During the cross-examination, AAA admitted that she voluntarily went with appellant because the
latter promised to bring her home. 5
On the last day of her detention, AAA and appellant went out of the house. On their way to San
Jose, a certain Aunt Ruthie saw AAA walking and immediately picked her up and brought her to the
police station. Appellant noticed AAA being taken away but he did nothing. 6

The prosecution also presented AAA’s mother, BBB, to corroborate her daughter’s testimony. BBB
narrated that on 26 March 1998, she was in the house when AAA came home at around noon time
to eat. Thereafter, AAA told BBB that she had to go backto school. At around 5:00 p.m. when AAA
had not come home, BBB went to the school to look for her. When the teacher told BBB that that
school children had already been sent home, she proceeded to the police station to report her
missing daughter. After six (6) days, AAA was found by BBB’s former employer who brought her to
the police. Upon receiving a call from the police, BBB immediately went to the police station and saw
her daughter. BBB observed that AAA was still in shock and could not walk properly so she was
brought to the doctor on the following day. She only learned that her daughter was raped after the
medical examination.

Appellant testified on his behalf. He denied abducting and raping AAA but admitted that he brought
the latter to his house when AAA approached him asking for bread first, before begging him to take
her with him because she was always being scolded by her parents. Upon reaching his house,
appellant entrusted AAA to the care of Florante Magay’s sister. Appellant then went back to town to
attend to his work as a mason. He only decided to go back home when he heard his name on the
radio in connection with the disappearance of a girl. He picked up the child in Barangay Tagburos
and brought her to her house in Buncag. AAA walked alone towards her house. 7

On 26 February 2007, the trial court rendered judgment in this wise:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused ROSENDO
AMARO GUILTY beyond reasonable doubt of the crime of Forcible Abduction with Rape, as defined
and penalized under Article 342 and Article266-B of the Revised Penal Code as amended by RA
8353 in relation to Article 48 thereof. The accused is hereby sentenced to suffer the penalty of
RECLUSION PERPETUA and to pay the costs. He is likewise ordered to pay the complainant-victim
[AAA] the amount of FIFTY THOUSAND (₱50,000.00) PESOS as civil indemnity and FIFTY
THOUSAND (₱50,000.00) PESOS as moral damages. 8

The trial court found AAA’s testimony as credible and straightforward and supported by medical
findings.

From the aforesaid decision, appellant appealed to the Court of Appeals.

On 30 March 2011, the Court of Appeals promulgated a Decision affirming the ruling of the RTC.
Both parties opted not to file their Supplemental Briefs and instead adopted their Briefs filed before
the appellate court.
9

In this appeal, appellant contendsthat the prosecution’s evidence is insufficient to sustain his
conviction. According to appellant, he did not rape AAA because the latter was not in his custody at
the time said incident allegedly happened. Appellant adds that he entrusted AAA to the custody of
Florante Magay’s sister because he was working. Appellant also insists that AAA voluntarily went
with him to his house.

Thus, the resolution of this case hinges on whether or not the prosecution was able to establish from
the testimony of the complainant the guilt of the accused for the crime offorcible abduction with rape
beyond reasonable doubt.

The elements of the crime of forcible abduction, as defined in Article 342 of the Revised Penal Code,
are: (1) that the person abducted is any woman, regardless of her age, civil status, or reputation; (2)
that she is taken against her will; and (3) that the abduction is with lewd designs. On the other hand,
rape under Article 266-A is committed by having carnal knowledge of a woman by: (1) force or
intimidation, or(2) when the woman is deprived of reason or is unconscious, or (3) when she is under
twelveyears of age.

The prosecution was able to prove all these elements in this case. The victim, AAA was a seven (7)
year-old girl who was taken against her will by appellant who told her thathe knew her mother and
that he would bring her home.  At her tender age, AAA could have easily been deceived by
10

appellant. The employment of deception suffices to constitute the forcible taking, especially since the
victim is an unsuspecting young girl. It is the taking advantage of their innocence that makes them
easy culprits of deceiving minds.  The presence of lewd designs in forcible abduction is established
11

by the actual rape of the victim. 12

During the direct examination, AAA recounted the rape incident and positively identified appellant as
the perpetrator, thus:
Q: When Rosendo undressed himself what happened next?

xxxx

A: He undressed me.

PROSECUTOR SENA:

(to witness)

Q: And after you were undressed by Rosendo what happened next? A: He kissed me.

Q: Where were you kissed by Rosendo?

A: In lips, Sir.

Q: Only your lips was kissed by Rosendo?

A: On my neck.

Q: Aside by being kissed by Rosendo, what else did he do to you?

A: He inserted his penis to my vagina.

Q: What do you mean by "totoy?"

(No answer)

PROSECUTOR SENA:

(to Court)

May I change the question, Your Honor.

COURT:

All right.

PROSECUTOR SENA:

(to witness)

Q: [AAA], in what part of the body of Rosendo can you find that totoy that you said?

(Witness pointed to her private part)

Q: And that bilalaythat you mentioned in what part of your body can you find that?

(The same, witness pointed to her private part)

Q: Were you able to see that totoyof Rosendo?

A: Yes, Sir.

Q: And how big was that?

(witness demonstrated the length more or less 5 inches)

Q: About how – the diameter, how big is the diameter?

COURT:

It is not necessary to prove that, the size.

PROSECUTOR SENA:
Just to prove.

(to witness)

Q: When the penis of Rosendo was being tried by Rosendo to penetrate your vagina[,] what did you
feel?

A: Painful, Sir. 13

The fact of sexual intercourse is corroborated by the medical findings that the victim suffered from
laceration on the upper and lower part of the introitus.14

Appellant was properly charged of the complex crime of forcible abduction with rape. AAA’s
abduction was a necessary means to commit rape. Sexual intercourse with AAA was facilitated and
ensured by her abduction. 15

In the prosecution of rape cases, conviction or acquittal depends on the complainant's testimony
because of the fact that usually only the participants are witnesses to their occurrences. The issue
therefore boils down to credibility. Significantly, findings of fact of the trial court should not be
disturbed on appeal since conclusions as to the credibility of witnesses in rape cases lie heavily on
the sound judgment of the trial court which is in a better position to decide the question, having
heard the witnesses and observed their deportment and manner of testifying. 16

Testimonies of child-victims are normally given full weight and credit, since when a girl, particularly if
she is a minor, saysthat she has been raped, she says in effect all that is necessary to show
thatrape has in fact been committed. When the offended party is of tender age and immature, courts
are inclined to give credit to her account of what transpired, considering not only her relative
vulnerability but also the shame to which she would be exposed if the matter to which she testified is
not true. Youth and immaturity are generally badges of truth and sincerity.  Moreover, AAA testified
17

in a straightforward manner.

On the other hand, appellant set-up the defense of denial and alibi.  It is jurisprudential that denial
1âwphi1

and alibi are intrinsically weak defenses which must be buttressed by strong evidence of non-
culpability to merit credibility. Mere denial, without any strong evidence to support it, can scarcely
overcome the positive declaration by the child-victim of the identity of the appellant and his
involvement in the crime attributed to him.  Alibi is evidence negative in nature and self-serving and
18

cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and
positive evidence. 19

The appellate court is correct in affirming the imposition of the penalty of reclusion perpetuaby
ratiocinating, to wit:

The presence of lewd intentions is established by the conduct of the accused during the abduction.
When the girl is defiled, the forcible abduction becomes the means to commit the rape, and since
rape is the more serious offense, under Article 48 of the Revised Penal Code, the complex crime of
forcible abduction with rape is committed and penalized by reclusion perpetua, the penalty proper to
rape.20

For clarity, the lower courts should have emphasized that reclusion perpetuaas the proper penalty
for the crime of statutory rape was imposed in lieu of death penalty pursuant to Republic Act No.
7659. When Republic Act No. 9346 prohibited the imposition ofdeath penalty, persons convicted of
offenses punished with death penalty will now be reduced to reclusion perpetua. And in line withour
recent ruling in People v. Gambao  where we order an increase in the amount ofdamages to
21

₱100,000.00 each for civil indemnity, moral and exemplary damages,we deem it necessary to
increase the amount of damages accordingly.

In addition, interest at the rate of 6% per annum shall be imposed on all damages awarded from
date of finalityof this judgment until fully paid. 22

WHEREFORE, premises considered, the Decision dated 30 March 2011 of the Court of Appeals in
CA-G.R. CR-HC No. 02801 is AFFIRMED, subject to the MODIFICATION that ROSENDO AMARO
shall pay ₱100,000.00 as civil indemnity, ₱100,000.00 as moral damages and ₱100,000.00 as
exemplary damages, plus interest of 6% per annum on the amount of damages, reckoned from the
finality of this decision until full payment.

SO ORDERED.

G.R. No. 181843               July 14, 2014

MIGUEL CIRERA y USTELO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.:

Treachery as a qualifying circumstance must be deliberately sought to ensure the safety of the
accused from the defensive acts of the victim. Unexpectedness of the attack does not always equate
to treachery.

We are asked to decide on a petition for review on certiorari  of the Court of Appeals' decision  dated
1 2

November 20, 2007 and the Court of Appeals’ resolution  dated February 18, 2008. The Court of
3

Appeals affirmed the Regional Trial Court’s decision  dated July 2, 2004 that found petitioner guilty of
4

two (2) counts of frustrated murder and sentenced him to suffer the indeterminate penalty of
imprisonment of six (6) years and one (1) day of prision mayoras minimum to 17 years and four (4)
months of reclusion temporalas maximum for each count. 5

This case arose out of two (2) informations for frustrated murder filed against petitioner:

Criminal Case No. Q-00-91821

That on or about the 20th day of April 2000, in Quezon City, Philippines, the said accused, with
intent to kill, with evident premeditation and by means of treachery, did, then and there, wilfully,
unlawfully and feloniously attackand assault and employ personal violence upon the person of one
GERARDO NAVAL by then and there stabbing the latter with a sharp bladed weapon hitting him at
the left back portion of his body, thereby inflicting upon said offended party physical injuries which
are necessarily fatal and mortal, thus performing all the acts of execution which would have
produced the crime of Murder as a consequence but which nevertheless did not produce it by
reason of causes independent of the will of the perpetrator, that is, by the timely and able medical
attendance rendered to said GERARDO NAVAL which save his life, to the damage and prejudice of
the said offended party. 6

Criminal Case No. Q-00-91842

That on or about the 20 th day of April 2000, in Quezon City, Philippines, the said accused, with
intent to kill, with evident premeditation and by means of treachery, did, then and there, wilfully,
unlawfully and feloniously attackand assault and employ personal violence upon the person of one
ROMEO AUSTRIA by then and there stabbing the latter with a sharp bladed weapon hitting him at
the left back portion of his body, thereby inflicting upon said offended party physical injuries which
are necessarily fatal and mortal, thus performing all the acts of execution which would have
produced the crime of Murder as a consequence but which nevertheless did not produce it by
reason of causes independent of the will of the perpetrator, that is, by the timely and able medical
attendance rendered to said ROMEO AUSTRIA which save his life, to the damage and prejudice of
the said offended party. 7

Upon arraignment, petitioner pleadednot guilty to the offenses charged against him. 8

The prosecution presented private complainants Gerardo Naval and Romeo Austria as witnesses.  It 9

also presented Dr. Raisa D. Francisco, Carlos Angeles, and Arnold Angeles as
witnesses.  Petitioner testified for the defense.
10 11

Facts according to the prosecution

Romeo Austria testified that at around 8:30 a.m. on April 20, 2000, he was playing a lucky nine
game ata wake on Araneta Avenue, Quezon City.  Miguel arrived, asking money from Austria so he
12

could buy liquor.  In response, Austria asked Miguel "to keep quiet."  Gerardo Naval "arrived and
13 14

asked [Austria] to go home."  There was an exchange of words between Naval and Miguel.  Austria
15 16

"stood up [and] felt that he was stabbed."  As he ran home, he noticedMiguel "armed with a
17

knife,"  this time chasing Naval.  Austria was "hospitalized . . . and was . . . confined for more than a
18 19

month."  He spent around ₱110,000.00 for his hospitalization.  On cross-examination, Austria
20 21

testified that he saw Miguel attempt to stab him again. 22

Gerardo Naval testified that Miguel was irked when he asked Austria to go home.  After he and 23

Miguel had an exchange of words, he "felt a hard blow on his back."  Naval retaliated.  However, he
24 25

ran away when he saw Miguel holding a knife.  Miguel chased Naval who fell on the ground.  When
26 27

Naval saw that Miguel was "about to stab him again, he hit [Miguel] with a bench"  and left him lying
28
on the ground, unable to stand.  According to Naval, "he did not see the [knife] land on his
29

back."  Naval was also confined at the hospital but only for six (6) days.
30 31

Dr. Carlos Angeles testified that "he treated [Austria] for [the] stab wound at [his] back."  He declared 32

that Austria could have died without an emergency operation.  According to him, "a long and sharp
33

instrument, probably a knife,"  could have been used to stab the victim.  Dr. Arnold Angeles, Naval’s
34 35

doctor, testified that "continuous blood loss"  could have caused Naval’s death.
36 37

Facts according to the defense

Miguel testified that he saw private complainants at a wake.  Naval tapped his back and asked,
38

"Anong problema mo?" to which he answered, "Wala naman."  Thereafter, Naval punched 39

Miguel.  As he was about to stand up, he was hit by a hard objecton his head, causing him to lose
40

consciousness.  He was brought to UERM Memorial Hospital where Naval identified him.  He was
41 42

then brought to Station 11 in Galas, Quezon City.  Miguel also testified that only Naval identified him
43

at the hospital. 44

The parties stipulated that Dr. Renan Acosta, supposedly the second defense witness, conducted
Miguel’s examination.  He issued a temporary medical certificate and a separate permanent medical
45

certificate. 46

Regional Trial Court

In its decision, the Regional Trial Court found petitioner guilty beyond reasonable doubt of two (2)
counts of frustrated murder.  He was sentenced to suffer the indeterminate penalty of imprisonment
47

of six (6) years and one (1) day of prision mayoras minimum, to 17 years and four (4) months of
reclusion temporalas maximum for each count.  Petitioner was ordered to indemnify Austria
48

₱25,000.00 as moral damages and ₱100,000.00 as actual damages; and Naval ₱25,000.00 asmoral
damages and ₱10,000.00 as temperate or moderate damages. 49

Petitioner was also ordered to pay the costs of suit.  The dispositive portion of the Regional
50

Trial Court decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Re: Criminal Case No. 00-91841-finding accused MIGUEL CIRERA y USTELO guilty
beyond reasonable doubt of the crime of Frustrated Murder hereby sentencing him to suffer
the indeterminate penalty of imprisonment of Six (6) years and one (1) day of Prision Mayor
as MINIMUM to Seventeen (17)Years and Four (4) months of Reclusion Temporal as
MAXIMUM and to indemnify private complainant Gerardo Naval in the amount of Twenty
Five Thousand (₱25,000.00) Pesos as and by way of morals [sic] damages and in the
absence of evidence, the amount of Ten Thousand (₱10,000.00) Pesos as and by way [of]
Temperate or moderate damages;

2. Re: Criminal Case NO. 00-91841-finding accused MIGUEL CIRERA y USTELO guilty
beyond reasonable doubt of the crime of Frustrated Murder, hereby sentencing him to suffer
the indeterminate penalty [of] Six (6) years and one (1) day of Prision Mayor as MINIMUM to
Seventeen (17)years and four (4) months of Reclusion Temporal as MAXIMUM and to
indemnify private complainant Romeo Austria in the amount of Twenty Five Thousand
(₱25,000.00) Pesos as and by way of moral damages and the amount of One Hundred
Thousand (₱100,000.00) Pesos as actual damages.

3. To pay the cost of suit.  (Emphasis in the original)

51

The Regional Trial Court found thatpetitioner caused the stab wounds of private
complainants.  Naval and Austria were able to positively identify him and describe how they
52

obtained their injuries. 53

Petitioner’s acts were not attended by evident premeditation as ruled by the trial court.  However, 54

there was treachery on petitioner’s end, considering the length of time it took private complainants to
realize that they were stabbed.  This, according to the Regional Trial Court, was a method or form
55

that tended to insure the execution of an act without risk from the offended party’s defense. 56

Petitioner appealed  the Regional Trial Court’s July 2, 2004 decision to the Court of Appeals, raising
57

as issue the credibility of the prosecution’s witnesses and, hence, the correctness of his conviction. 58

Court of Appeals
In a decision  promulgated on November 20, 2007, the Court of Appeals affirmed the decision of the
59

trial court.

The Court of Appeals was not persuaded by petitioner’s arguments pointing to alleged
inconsistencies inthe prosecution witnesses’ narratives. It found that the inconsistency between
Naval’s testimony and his sworn affidavit on the number of times petitioner was hit might be
attributed to the fact that "the statement was taken . . . while he was [still at] the hospital [unable] to
fully understand its contents".  The Court of Appeals was not persuaded either by petitioner’s
60

argument that Austria and Naval failed to testify that they saw him stab them.  The Court of Appeals 61

held that "no other person could have committed the crime"  as "all the circumstances point to
62

[petitioner] as the author of the crime." 63

The Court of Appeals affirmed the finding of the trial court that there was treachery in this case
because"the attack was so sudden and unexpected"  that "self-defense was not possible."
64 65

Petitioner’s motion for reconsideration was denied in the Court of Appeals’ resolution  promulgated 66

on February 18, 2008.

Petitioner, in this case, raises the following issue:

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE APPEAL

WHICH IN EFFECT, AFFIRMS THE JUDGMENT OF CONVICTION RENDERED BY THE TRIAL
COURT, DESPITE THE PATENT LACK OF EVIDENCE AGAINST THE PETITIONER AND FOR
THE FAILURE OF THE PROSECUTION TO PROVE THE PETITIONER’S GUILT BEYOND
REASONABLE DOUBT. 67

Petitioner argues that the Court of Appeals failed to consider the inconsistencies in Austria’s and
Naval’s statements.  Austria’s statement that only Naval and petitioner were standing behind him
68

was inconsistent with Austria’s other statement that "petitioner was on his left side, while [Naval] was
on his right side." 69

Petitioner also stresses that Austria’s claim that Naval and petitioner "were still having an altercation
when he suddenly felt a stab blow at his back"  was inconsistent with Naval’s alleged failure to
70

mention "that he had an altercation with the petitioner before the stabbing incident."  Petitioner 71

claims that it was not possible for him to have stabbed Austria without Naval noticing since he was
having a heatedexchange of words with Naval. 72

Petitioner insists that the claim that "petitioner was armed with a knife"  was not proven since "the
73

knife was not recovered."  Petitioner was left immobile, yet "nobody bothered to retrieve the
74

knife"  he supposedly used in committing the crimes charged against him.  Petitioner also points out
75 76

that other players in the lucky nine game might have gotten mad at private complainants when Naval
allegedly asked Austria to go home for a drinking spree. 77

Petitioner also argues that there was no treachery.  Even assuming that an assault was sudden and
78

unexpected, there must be "evidence that [the] mode of assault was consciously and deliberately
adopted to [e]nsure the execution of the crime without risk to the [petitioner.]"  Given "private 79

complainants’ superiority in number"  and considering that petitioner "was left behind
80

unconscious,"  private complainants were not left without "opportunity to retaliate."

81 82

Respondent counters that the "trial court’s observations and conclusions deserve great respect and
are often accorded finality, unless there appears in the recordsome fact or circumstance of weight
which the lower court may have overlooked, misunderstood or misappreciated and which . . . would
alter the result of the case." 83

Private complainants point out that the circumstances of the case show treachery since they were
attacked from behind.  Further, they claim that there was no warning that they were in danger when
84

they were stabbed. 85

The petition should be partly granted. Treachery did not exist and, hence, petitioner may only be
convicted of two counts of frustrated homicide.

Nonetheless, we affirm the findingthat the prosecution’s witnesses were credible.

Petitioner points to alleged inconsistencies that pertain only to collateral and inconsequential
matters. He directs this court’s attention to inconsistent statements regarding the positions of private
complainants at the time of the incident.  He also points to the alleged impossibility of him
86
committing the offense without being noticed by Naval  and to the alleged failure to recover the knife
87

used in stabbing private complainants. 88

These alleged inconsistencies do not affect the credibility of the testimonies of the prosecution
witnesses, specially with respect to the "principal occurrence and positive identification"  of 89

petitioner. Slight inconsistencies in the testimony even strengthen credibility as they show that the
"testimony [was] not rehearsed."  What is important is that there is consistency as to the occurrence
90

and identity of the perpetrator. 91

Further, the alleged failure to retrieve the knife supposed to have been used in perpetrating the
offense does not destroy the credibility of the testimonies.  The crime is proved not by presenting the
92

object but by establishing the existence of the elements of the crime as written in law. 93

II

Petitioner was charged and convicted by the trial court and the Court of Appeals with two counts of
frustrated murder.

Article 248 of the Revised Penal Code provides that murder is committed by a person who kills,
under certain circumstances, another person that is not his or her father, mother, child, ascendant,
descendant, or spouse. It provides:

ARTICLE 248. Murder. — Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusión temporalin its maximum period
to death, if committed with any of the following attendant circumstances:

1. With treachery, taking advantage ofsuperior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford
impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel,

derailment or assault upon a street car or locomotive, fall of an airship, by means of motor
vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an

earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public
calamity. 5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.

If these qualifying circumstances are not present or cannot be proven beyond reasonable doubt, the
accused may only be convicted with homicide, defined in Article 249 of the Revised Penal Code:

Art. 249. Homicide. – Any person who, not falling within the provisions of Article 246, shall kill
another withoutthe attendance of any of the circumstances enumerated in the next preceding article,
shall be deemed guilty of homicide and be punished by reclusión temporal.

In murder or homicide, the offender must have the intent to kill. If there is no intent to kill on the part
ofthe offender, he or she is liable only for physical injuries. 94

"[I]ntent to kill . . . must beproved by clear and convincing evidence."  "[It] should not be drawn inthe
95

absence of circumstances sufficient to prove such intent beyond reasonable doubt." 96

In Escamilla v. People,  we said that "[t]he evidence to prove intent to kill may consist of, inter alia,
97

the means used; the nature, location and number of wounds sustained by the victim; and the
conduct of the malefactors before, at the time of, orimmediately after the killing of the victim." 98

The act of killing becomes frustrated when an offender "perform[s] all the acts of execution which
[c]ould produce the [crime]"  but did not produce it for reasons independent of his or her will.
99

In convicting petitioner offrustrated murder, the trial court and the Court of Appeals found that
petitioner intentionally tried to kill private complainants. He was the author ofthe stab wounds
obtained by private complainants. However, for reasons independent of his will, he was unable to
fully execute the crime.
This court held that "findings of facts and assessment of credibility of witnesses are matters best left
to the trial court,"  which is in the best position to observe the witnesses’ demeanor while being
100

examined in court.  This court gives more weight tosuch findings if affirmed by the Court of
101

Appeals.  The exception to the ruleis when the trial court misconstrued facts which if properly
102

appreciated could alter the outcome of the case. 103

We find that there is nothing in the circumstances of this case that warrants the application of the
exception, with respect to the findings that: 1) there was intent to kill; 2) petitioner was the willful
author of the stab wounds, which almost killed private complainants; and that 3) petitioner’s failure to
kill private complainants was a result of circumstances independent of his will. Circumstantial
evidence was used to identify the perpetrator in this case. 104

Rule 133, Section 4 of the Rules ofCourt provides that a person may be convicted based on
circumstantial evidence if the requisites are present. It provides:

Section 4. Circumstantial evidence, when sufficient.— Circumstantial evidence is sufficient for

conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

This court iterated this rule in Trinidad v. People: 105

The settled rule is that a judgment of conviction based purely on circumstantial evidence can be
upheld only if the following requisites concur: (1) there is more than one circumstance; (2) the facts
from which the inferences are derived are proven; and (3) the combination of all the

circumstance es is such as to produce conviction beyond reasonable doubt. 106

In this case, the following facts were considered:

1) Petitioner was identified by private complainants to be at the scene of the crime; 107

2) Private complainants were able todescribe how they obtained their injuries; 108

3) Petitioner was seen holding the knife at the scene of the crime; 109

4) Only three persons were involved in the incident — private complainants and petitioner; 110

5) Petitioner "was standing very close to the private complainants"; 111

6) Petitioner was the only one who had an altercation with private complainants,  and 112

petitioner was seen chasing and about to stab at least one of the private complainants; 113

7) Private complainants sustained stab wounds; 114

8) The stab wounds sustained by private complainants would have been fatal had it not been
given appropriate medical attention.115

The combination of these circumstances "constitute[s] an unbroken chain which leads to one fair and
reasonable conclusion pointing to the [petitioner], to the exclusion of all others, as the guilty
person." 116

The version offered by petitioner that it was he who was punched and hit with a hard object  is not 117

inconsistent with the facts as stated by private complainants. It may even be true. However, it does
not remove such reasonable conclusion that he was the author of the acts complained about in this
case.

Petitioner’s intent to kill is evident from his attempt to stab private complainants more than
once.  Petitioner chased private complainants after they had tried to flee from him.  The wounds
118 119

inflicted by petitioner were also shown to have been fatal if no medical attention had been given to
private complainants immediately after the incident. 120
Petitioner’s acts did not result in private complainants’ deaths despite petitioner having already
performed all acts of execution of the crime. However, this was not due to his desistance but due to
the timely medical attention given to private complainants. 121

Meanwhile, Dr. Carlos Angeles’ and Dr. Arnold Angeles’ testimonies that private complainants would
have died had no immediate medical attention been given to them,  showed that petitioner’s failure
122

to kill private complainants was due toacts independent of his will.

Based on the foregoing, we do not find reason to disturb the trial court’s and the Court of Appeals’
findings.

III

However, treachery, as a qualifying circumstance to sustain a conviction of frustrated murder rather

than frustrated homicide, was not proven by the prosecution.

Article 14(16) of the Revised Penal Code defines treachery:

ARTICLE 14. Aggravating Circumstances. — The following are aggravating circumstances:

....

16. That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof, which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make. 123

The requisites of treachery are:

(1) [T]he employment of means,method, or manner of execution which will ensure the safety
of the malefactor from defensive or retaliating acts on the part of the victim, no opportunity
being given to the latter to defend himself or to retaliate;  and
124

(2) [D]eliberate or conscious adoption of such means, method, or manner of execution. 125

A finding of the existence of treachery should be based on "clear and convincing evidence."  Such 126

evidence must be as conclusive as the fact of killing itself.  Its existence "cannot be presumed."  As
127 128

with the finding of guilt of the accused, "[a]ny doubt as to [its] existence . . . [should] be resolved in
favor of the accused."129

The unexpectedness of an attack cannotbe the sole basis of a finding of treachery  even if the
130

attack was intended to kill another as long as the victim’s position was merely accidental.  The
131

means adopted must have been a result of a determination to ensure success in committing the
crime.

In this case, no evidence was presented to show that petitioner consciously adopted or reflected on
the means, method, or form of attack to secure his unfair advantage.

The attack might "have been done on impulse [or] as a reaction to an actual or imagined provocation
offered by the victim."  In this case, petitioner was not only dismissed by Austria when he
132

approached him for money. There was also an altercation between him and Naval. The provocation
might have been enough to entice petitioner to action and attack private complainants.

Therefore, the manner of attack might not have been motivated by a determination to ensure
success in committing the crime.  What was more likely the case, based on private complainants’
1âwphi1

testimonies, was that petitioner’s action was an impulsive reaction to being dismissed by Austria, his
altercation with Naval, and Naval’s attempt to summon Austria home.

Generally, this type of provocation negates the existence of treachery.  This is the type of
133

provocation that does not lend itself to premeditation. The provocation in thiscase is of the kind
which triggers impulsive reactions left unchecked by the accused and caused him to commit the
crime. There was no evidence of a modicum ofpremeditation indicating the possibility of choice and
planning fundamental to achieve the elements of treachery.

The ability of the offended parties toretaliate and protect themselves may not by itself negate the
existence of treachery. The efforts of the accused to employ means and method to ensure his safety
and freedom from retaliation may not have succeeded. However, in this case, the ability of the
offended parties to have avoided greater harm by running away or by being able to subdue the
accused is a strongindicator that no treachery exists.

It is, therefore, an error for both the trial and appellate courts not to have considered the evidence
that the offended parties were able to flee and retaliate. Upon proof of evasion and retaliation, courts
must evaluate the evidence further to ensure whether there can be reasonable doubt for this
qualifying circumstance to exist. This is only in keeping with the presumption of innocence of the
accused.

Thus, in the absence of clear proof of the existence of treachery, the crime proven beyond
reasonable doubt isonly frustrated homicide and, correspondingly, the penalty should be reduced. 134

IV

Article 250 of the Revised Penal Code provides that a penalty lower by one degree than that which
should be imposed for homicide may be imposed upon a person guilty of frustrated homicide.

The imposable penalty for homicide is reclusion temporal. Article 50 of the Revised Penal Code
provides that the penalty to be imposed upon principals of a frustrated crime shall be the penalty
next lower in degree than that prescribed by law for the consummated crimes. The penalty next
lower in degree is prision mayor.

Applying the Indeterminate Sentence Law, the penalty to be imposed must have a maximum term
which canbe properly imposed under the rules considering the attending circumstances.  Since
135

there is no attending circumstance in this case, the penalty of prision mayor in its medium term or
eight (8) years and one (1) day asmaximum should beimposed. The minimum sentence should be
within the range of the penalty next lower to that prescribed by the Revised Penal Code.  A penalty
136

of one (1) year and one (1) day as minimum, prision correccional should, therefore, be proper.

Furthermore, petitioner’s civil liabilitymust be modified. The award of actual damages to Romeo
Austria should be 88,028.77 since this is the only amount supported by receipts on record. This is in
line with Article 2199  of the Civil Code, which limits the entitlement for pecuniary loss to such
137

amount duly proved.

We see no reason to modify the trial court’s award of moral damages, being in line with Article
2219  and jurisprudence.  The trial court’s award of temperate damages to Naval isalso justified in
138 139

recognition of the injuries he sustained, which from their very nature imply damages and do not need
to be proved inaccordance with Article 2216  of the Civil Code.
140

WHEREFORE, the Court of Appeals’ decision is SET ASIDE. Petitioner is found guilty of two (2)
counts of frustrated homicide. He is sentenced to a prison term of one (1) year and one (1) day of
prision correccional as minimum, to eight (8) years and one (1) day of prision mayor medium as
maximum, for every count. Furthermore, he is ordered to indemnify a) Romeo Austria ₱25,000.00 as
moral damages and ₱88,028.77 as actual damages and b) Gerardo Naval ₱25,000.00 as moral
damages and ₱10,000.00 as temperate ormoderate damages.

Petitioner is also ordered to pay the c.osts of suit.

SO ORDERED.

A.M. No. RTJ-08-2151               March 11, 2014

OFFICE OF THE COURT ADMINISTRATOR, Petitioner,

vs.
JUDGE EDWIN C. LARIDA, JR., RTC, Branch 18, Tagaytay City, Respondent.

DECISION

BERSAMIN, J.:

A mysterious early Sunday morning fire in the records room of a courthouse set off a series of red
flags pointing to anomalous acts allegedly committed by its inhabitants. It led to the resignation of a
clerk of court after he had formally denounced the Presiding Judge for committing various anomalies
and irregularities that are now the subjects of this administrative case against the Presiding Judge.

Antecedents
At around 7:50 a.m. on October 12, 2008, a Sunday, a fire occurred at the records room of Branch
18 of the Regional Trial Court (RTC) in Tagaytay City. The fire, although declared under control by
8:10 a.m., was extinguished only ten minutes later. Recovered from the records room were a 1.5 liter
plastic bottle containing gasoline, a container of glue, and a candle.  Atty. Stanlee D.C. Calma, the
1

Branch Clerk of Court of Branch 18, immediately reported the fire as a clear case of arson to the
Office of the Court Administrator (OCA).  On October 13, 2008, then Court Administrator Jose
2

Portugal Perez, now a Member of the Court, formed and dispatched an investigative team consisting
of lawyers from the OCA to conduct an investigation upon the instructions of Chief Justice Reynato
S. Puno. The investigative team started interviewing the personnel of Branch 18, including Atty.
Calma, in the afternoon of October 13, 2008, and their declarations aided the review starting on
October 14, 2008 of the records of the cases decided and pending in Branch 18.

In the course of its investigation, the investigative team uncovered anomalies supposedly committed
by Presiding Judge Edwin G. Larida (Judge Larida), namely:

1. violation of Administrative Circular No. 28-2008, in authorizing the detail of locally-funded

employees to his court without obtaining permission from the Supreme Court, and in allowing
them to take custody of court records and to draft court orders and decisions for him;

2. knowingly allowing detailed employees Jason Marticio, Larry Laggui and Napoleon
Cabanizas to demand commissions from bonding companies in exchange for the issuance
of release orders;

3. extorting money from detained accused Raymund Wang, with the help of Jason Marticio
and Larry Laggui;

4. defying the directive of the Supreme Court in Administrative Order No. 132-2008, dated 15
September 2008, to stop from trying and hearing cases and to instead, decide cases already
submitted for decision;

5. releasing the accused on bail in Criminal Case No. TG-4382-03 for Violation of Section 8,
Article II, RA 9165 (Manufacturing or Engaging in the Manufacture of, in a Clandestine
Laboratory, Large Quantity of Metamphetamine Hydrochloride, Commonly Known as Shabu)
despite their positive identification as the perpetrators of the crime;

6. granting a motion to quash the information in Criminal Case No. TG-5307-06 without a
case record and without requiring a comment from the prosecutor; and

7. granting a petition for the issuance of owner's duplicate copies of various titles in LRC
case No. TG-06-1183 under questionable circumstances. 3

Upon recommendation of the OCA, and on the basis of the investigation report, the Court resolved
on November 18, 2008 to:

a) x x x

b) DIRECT Judge Larida to cease and desist from hearing and deciding cases at RTC,
Branch 18, Tagaytay City;

c) DESIGNATE Judge Larida as Assting Judge of RTC, Branch 74, Malabon City to decide
inherited cases submitted for decision and already beyond the reglementary period to decide
in the aforesaid court;

d) DIRECT Messrs. Jayson A. Marticio and Larry G. Laggui to report back to the City
Government of Tagaytay, effective immediately;

e) PROHIBIT Messrs. Marticio, Laggui and Napoleon Cabanizas, Jr., from entering the
premises of RTC, Branch 18, Tagaytay City;

xxxx

i) REVOKE the designation of Judge Emma S. Young, RTC, Branch 36, Manila, as Assisting Judge
of RTC, Branch 18, Tagaytay City, pursuant to Administrative Order No. 132-2008 dated September
15, 2008, and instead, DESIGNATE Judge Young as Acting Presiding Judge thereat effective
immediately and to continue until further orders from the Court. x x x

The Court further Resolved to REFER the instant administrative complaint against Judge Larida to
(a) the Presiding Justice of the Court of Appeals for RAFFLE among the justices thereat within five
(5) days from notice hereof and (b) the Court of Appeals Justice to whom the complaint will be
raffled for INVESTIGATION, REPORT AND RECOMMENDATION thereon within sixty (60) days
from the date of the raffle. 4

In the meantime, Jayson A. Marticio, a locally-funded employee formerly detailed in Branch 18, and
who was among those barred by the Court from entering the RTC’s premises in the aftermath of the
arson incident, presented a letter-complaint dated October 20, 2008  whereby he denounced the
5

following anomalies and irregularities committed by the RTC staff of Branch 18, to wit:

1. That the court staff are practicing the "duty system" wherein a court employee will be
assigned to report early in order to punch in their daily time cards;

2. That a certain "Rommel" and other court employees were asking commissions from
bondsmen, specifically, the Monarch Insurance Company which he avers has connections
with the Office of the Clerk of Court;

3. That Clerk of Court Stanlee Calma and Legal Researcher Diana Ruiz are soliciting
monetary considerations from litigants in exchange for fast and favorable decisions;

4. That Clerk of Court Calma received a huge amount of money and a Pajero from a certain
"Norma" in exchange for a favorable decision in an election protest; and

5. That there are court employees who seek his assistance in drafting decisions/orders and
use the same to ask for considerations from litigants. 6

Marticio’s letter-complaint was consolidated with A.M. RTJ-08-2151, the case involving Judge
Larida.  The consolidated cases were assigned to Associate Justice Ricardo R. Rosario of the Court
7

of Appeals (CA) for investigation, report and recommendation.

On February 20, 2009, Investigating Justice Rosario re-set the pre-trial of the cases to March 5,
2009, with a specific order for Marticio to personally appear on that date.  On March 5, 2009,
8

Marticio did not appear at the pre-trial. The Process Server’s Return showed,  however, that the
9

order for Marticio to personally appear before the Investigating Justice was not served on him
because he had meanwhile ceased to be connected with the City Government of Tagaytay City, and
could not also be found at his last known address. Whereupon, the staff members of Branch 18
whom Marticio had denounced sought the immediate dismissal of his letter complaint.  Deeming 10

Marticio’s failure to inform the Investigating Justice and the OCA of his whereabouts as a
manifestation of his lack of interest to pursue the matter, the Investigating Justice recommended the
dismissal of his letter-complaint. 11

The representatives of the OCA and Judge Larida appeared before the Investigating Justice and
presented their evidence.

The Investigating Justice thereafter submitted a report on his findings to the Court, and
recommended as follows:

1. for failing to strictly comply with the provisions of Administrative Circular No. 28-2008, it is
recommended that respondent Judge Edwin G. Larida, Jr. be STERNLY WARNED that the
commission of a similar act will be dealt with more severely;

2. for failing to supervise and control his subordinates diligently, it is recommended that
respondent Judge Edwin G. Larida, Jr. be REPRIMANDED with warning that a commission
of a similar act will be dealt with more severely;

3. for immediately granting Jayson Espiritu's motion to quash in Criminal Case No. TG-5307-
06 without giving the prosecution a chance to comment thereon or file an opposition thereto,
it is recommended that respondent Judge Edwin G. Larida, Jr. be STERNLY WARNED that
a repetition of a similar act will warrant a more severe penalty.

There being no substantial evidence to support the charges of –

a) extorting money from detained accused Raymund Wang;

b) defying the directive of Supreme Court in Administrative Order No. 132-2008;

c) improperly granting bail in Criminal Case No. TG-4382-03;

 d) receiving a bribe in exchange for granting Jayson Espiritu's motion to quash the
information in Criminal Case No. TG-5307-06;

e) granting a petition for the issuance of owner's duplicate copies of various titles in LRC
Case No. TG-06-1183 under questionable circumstances; and

f) involvement in the fire that razed RTC, Branch 18, Tagaytay City;

it is recommended that the foregoing charges be DISMISSED and respondent Judge Edwin G.
Larida, Jr., be ABSOLVED of liability for the same. 12

Ruling

The Court partly adopts the findings and recommendations of the Investigating Justice.

1.

Violation of Administrative Circular No. 28-2008 by authorizing the detail of locally-funded employees
to Branch 18 without obtaining permission from the Court, and by allowing them to take custody of
court records and to draft court orders and rulings for him Administrative Circular No. 28-2008 dated
March 11, 2008 (Guidelines in the Detail of Locally-Funded Employees to the Lower
Courts)  relevantly stated as follows:
13

The Presiding Judge/Executive Judge shall submit to the SC through the OCA, within one (1) month
from receipt of this administrative circular, an inventory of all locally-funded employees detailed in
their respective court branches including the OCC, specifying their names, position titles, assigned
duties and duration of the detail. In addition, the Presiding Judge/Executive Judge shall regularly
review the necessity for such details as well as the performance of the locally-funded employees,
and recommend to the SC through the OCA the revocation of the detail for those whose services are
no longer necessary in the lower courts or those with unsatisfactory or poor performance.

As of October 14, 2008, the locally-funded employees detailed in Branch 18 were Ofelia Parasdas,
Myrna Lontoc, Jayson Marticio, Larry Laggui and Jaime Apaga.  However, Judge Larida did not
14

submit or cause to be submitted to the Court within one month from receipt of Administrative Circular
No. 28-2008 an inventory of all locally-funded employees detailed in Branch 18.

Atty. Calma claimed further that Judge Larida had allowed Marticio to draft orders and decisions for
Branch 18 in contravention of paragraph 3 of Administrative Circular No. 28-2008,  viz: 15

Considering the confidentiality of court records and proceedings, locally-funded employees shall
simply assist in the performance of clerical works, such as receiving of letters and other
communications for the office concerned, typing of address in envelopes for mailing, typing of
certificate of appearance, and typing of monthly reports. They shall not be given duties involving
custody of court records, implementation of judicial processes, and such other duties involving court
proceedings. However, they may perform functions appertaining to that of a messenger, janitor and
driver, if these positions are provided in the plantilla of the Local Government Unit (LGU). 16

To support Atty. Calma’s claim, the OCA presented copies of the court orders drafted by Marticio in
the period from February 4 to February 15, 2008 bearing Marticio’s initials and signatures on which
Judge Larida had either written the word "Finalize" or signed in other instances. 17

Likewise, Atty. Calma attested that Judge Larida had allowed Laggui to handle confidential court
records in violation also of paragraph 3 of Administrative Circular No. 28-2008. 18

In his judicial affidavit, Judge Larida asserted that he had tasked Atty. Calma to make and send to
the Court the inventory of the detailed locally-funded employees, but the latter did not comply.  He
19

denied that Marticio had continued drafting court orders after the effectivity of Administrative Circular
No. 28-2008 on March 11, 2008, because Marticio had been limited to doing legal research
afterwards.  He admitted that Laggui had handled court records at his behest, but insisted that such
20

handling had been limited to the physical carrying of records between his chambers and the staff
room for only a fleeting moment. 21

The Investigating Justice rendered the following evaluation of the charges and the corresponding
explanations of Judge Larida, to wit:

Based on the foregoing evidence, this Investigating Justice finds that although respondent Judge
failed to comply with the submission of an inventory of locally-funded personnel detailed to his office,
pursuant to Administrative Circular No. 28-2008, it cannot be said that such failure was entirely his
fault.

In the first place, the preparation of such inventory is an administrative function that properly pertains
to the Branch Clerk of Court, Atty. Calma. Since it was Atty. Calma who first read about
Administrative Circular No. 28-2008 in the newspaper and even brought the same to the attention of
respondent Judge, he should have prepared the required inventory for respondent Judge's
signature. The record is bereft of any evidence or allegation that despite a prepared inventory ready
for his signature, respondent Judge willfully refused to sign and submit the same to the Supreme
Court.

Second, aside from the orders prepared by Jayson Marticio between 4 and 15 February 2008, there
is no showing that he continued to draft court orders after the effectivity of Administrative Circular
No. 28-2008 on 11 March 2008.

Third, Larry Laggui’s act of physically carrying court records to and from respondent Judge’s
chambers and the staff room appears to be a messengerial activity allowed by Administrative
Circular No. 28-2008. Laggui can hardly be said to have exercised "custody" over the court records
since he had no participation in their safekeeping.

Nevertheless, respondent Judge’s act of not submitting the required inventory, allowing detailed
employees to draft court orders and/or have access to court records evinces laxity in respondent
Judge’s control and supervision over his office. A judge is tasked with the administrative supervision
over his personnel and he should always see to it that his orders are promptly enforced and that
case records are properly stored. It is, therefore, incumbent upon the judge to see to it that the
personnel of the court perform their duties well and to call the attention of the clerk of court when
they fail to do so.

Having failed to strictly comply with the provisions of Administrative Circular No. 28-2008, it is
recommended that respondent Judge be STERNLY WARNED that the commission of a similar act
will be dealt with more severely.22

We find Judge Larida to have committed several lapses, specifically the non-submission to the Court
of the required inventory of locally-funded employees, and his allowing Marticio to draft court orders.
Such lapses manifested a wrong attitude towards administrative rules and regulations issued for the
governance and administration of the lower courts, to the extent of disregarding them, as well as a
laxity in the control of his Branch and in the supervision of its functioning staff.

The omission to submit the inventory should not be blamed on Atty. Calma as the Branch Clerk of
Court.  Although it was very likely that Judge Larida had tasked Atty. Calma to do and submit the
1avvphi1

inventory in his behalf, Judge Larida as the Presiding Judge himself remained to be the officer
directly burdened with the responsibility for doing so. The basis for saying so is the text of
Administrative Circular No. 28-2008 itself. Judge Larida could neither shirk from, nor avoid, nor
evade the responsibility of submitting the inventory within one month from notice under any guise or
reason. This meant that if Atty. Calma did not comply with his instruction, Judge Larida should have
himself assumed the responsibility of compliance. With Administrative Circular No. 28-2008 being
effective on March 11, 2008 yet, his failure to send the inventory as late as October 2008 definitely
established his non-compliance with its directive.

Paragraph 3 of Administrative Circular No. 28-2008 also confined the service of locally-funded
employees to giving assistance in the performance of clerical works, like receiving letters and other
communications for the Branch, typing of addresses on envelopes for mailing, typing of certificates
of appearance, and typing of monthly reports. Such employees were not to have the custody of court
records, or to have anything to do with the implementation of judicial processes, or to discharge
other duties involving court proceedings beyond the merely clerical. The prohibition was intended to
preserve the confidentiality of court records and proceedings, because such employees were not
employed in the Judiciary.

Judge Larida admitted in his judicial affidavit that Marticio had drafted court orders and had done
legal research in Branch 18. Under the circumstances, his claim of discontinuing Marticio’s drafting
activities upon the effectivity of Administrative Circular No. 28-2008 on March 11, 2008, assuming it
to be true, did not diminish or excuse his violation if he still permitted Marticio to do legal research
work thereafter. Legal research was an activity that was more than clerical. Clearly, Judge Larida did
not comply with Administrative Circular No. 28-2008, which was a less serious charge under Section
9 of Rule 140, Rules of Court, as amended. 23

Section 11 of Rule 140, Rules of Court, as amended, delineates the sanctions to be meted out for a
less serious charge, as follows:
Section 11. Sanctions. – x x x

xxxx

B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be
imposed:

1. Suspension from office without salary and other benefits for not less than one (1) nor more
than three (3) months; or

2. A fine of more than ₱10,000.00 but not exceeding ₱20,000.00.

xxxx

However, Judge Larida’s unrebutted explanation that he had instructed Atty. Calma to prepare and
send the inventory, while not entirely absolving him, evinced his intention to comply. Trial judges
have usually delegated various reporting tasks to their clerks of court or other members of their staff
in order to gain more time for their adjudications and other important written work. We should
presume, therefore, that malice had not motivated his non-compliance with Administrative Circular
No. 28-2008. His explanation to that effect merited treating his lack of malice as a mitigating
circumstance in his favor.

2.

Knowingly allowing detailed employees

to solicit commissions from bonding companies

Regarding this charge, the Investigating Justice found thusly:

The OCA next charges respondent Judge with having allowed detailed employees, Jayson Marticio
and Larry Laggui, and respondent Judge's personal driver, Napoleon Cabanizas, Jr., to solicit
commissions from bonding and surety companies.

According to the judicial affidavit of former Branch Clerk of Court, Atty. Stanlee D.C. Calma, the
manager of Monarch Insurance Company, Inc. complained to him that despite the proper filing of the
bail bond policy and the payment of legal fees, there would be a delay of up to 3 days in the
issuance of release orders for the accused unless the bonding company gave the "commission"
solicited by Jayson Marticio, Larry Laggui and Napoleon Cabanizas, Jr. Monarch Insurance
Insurance and other bonding companies supposedly told Atty. Calma that Jayson Marticio, Larry
Laggui and Napoleon Cabanizas, Jr. solicited "commissions" ranging from ₱500.00 up to 2% of the
amount of bail imposed.

By way of illustration, the OCA presented Criminal Case No. TG-5955-08 entitled People vs. Benito
Bobis. In said case, Monarch Insurance posted the bail bond on 17 June 2008, respondent Judge
signed the release order of the accused on 18 June 2008, but the release order was issued only on
20 June 2008.

In accordance with his duties as Branch Clerk of Court, Atty. Calma reported the improper
solicitation to respondent Judge, who allegedly remarked, "Sabi ko nga sa kanila mag 'lie low muna."

Thereafter, respondent Judge confronted Jayson Marticio, Larry Laggui and Napoleon Cabanizas,
Jr. in the presence of the representative of Monarch Insurance and told them to stop asking for
commissions. However, according to Atty. Calma, what respondent Judge really said was that
Marticio et al. should refrain from demanding "commissions" and it was up to the bonding companies
to give them any amount. 24

Based on the foregoing, Judge Larida was not unaware of the solicitations by Marticio, Laggui and
Cabanizas from the complaining bonding company. The solicitations were surely irregular and
improper activities undertaken by persons visibly working for the courts. Considering that such
activities were committed with his knowledge, Judge Larida should have done more than merely
confronting them in the presence of the representative of the complaining bonding company, and
then and there merely telling them to stop the solicitations. He should have instead immediately
caused or called for their investigation and, if the evidence warranted, seen to their proper criminal
prosecution. The firmer action by him would have avoided the undesirable impression that he had
perversely acquiesced to their activities. He thus contravened the Code of Judicial Conduct, which
imposed on him the duty to take or initiate appropriate disciplinary measures against court personnel
for unprofessional conduct of which he would have become aware, to wit:
Rule 3.10 A judge should take or initiate appropriate disciplinary measures against lawyers or court
personnel for unprofessional conduct of which the judge may have become aware.

Accordingly, Judge Larida was guilty of unbecoming conduct, a light charge under Section 10, Rule
140 of the Rules of Court, as amended. 25

3.

Charge of soliciting money from the accused

in Criminal Case No. TG-2969-98.

On this charge, the Investigating Justice found and recommended as follows:

In Criminal Case No. TG-2969-98, the accused, Raymund Wang, was charged with selling 275.9665
grams of shabu. According to former Branch Clerk of Court, Atty. Calma, a certain Necita Ramos
(kumare of Raymund Wang) called him up to ask if there was already a decision in the case.
Further, Necita Ramos informed Atty. Calma that a certain "Jake" or "James" had visited Wang in
the Trece Martirez Provincial Jail to ask ₱100,000.00 allegedly "pang birthday ni Judge." Wang gave
"Jake" or "James" the cellphone number of Necita Ramos and the two purportedly negotiated the
amount down to ₱50,000.00. However, Necita Ramos did not pay the amount solicited.

After receiving the information, Atty. Calma supposedly informed respondent Judge that certain
people might be using his name but the latter only said that the problem is that people are accusing
others but are afraid to show up.

Thereafter, Atty. Calma did his own investigation and found out that the cellphone number calling
Necita Ramos belonged to Jayson Marticio. Armed with this information, Atty. Calma and Necita
Ramos went to the Office of the City Prosecutor. However, no statements were taken and no action
was done. Upon verification by the audit team of the OCA, the Office of the City Prosecutor opined
that the suspicion of Atty. Calma and Necita Ramos would not prosper since their bases were all
hearsay.

For his part, respondent Judge denied that Atty. Calma informed him of this incident. In his Judicial
Affidavit, respondent Judge averred that he had asked his legal researcher, Diana Ruiz, to prepare a
digest of the case but she prepared, instead a decision acquitting Wang. This allegedly triggered a
suspicion in respondent Judge that Diana Ruiz and Atty. Calma were selectively preparing decisions
and placing them inside his chambers, but before he could investigate, a fire gutted the court.

Based on the foregoing testimonies on record, it is apparent that the charge against respondent
Judge of soliciting money from accused Wang has not been proved. Apart from the hearsay
testimony of Atty. Calma, there is no legal or factual basis to conclude that "James" or "Jake" is
actually Jayson Marticio and that "James" or "Jake" solicited money from Wang with the authority of
respondent Judge. Therefore, it is recommended that this charge against respondent Judge be
DISMISSED. 26

We adopt the findings and recommendation of the Investigating Justice, and dismiss the charge for
lack of evidence proving that Judge Larida solicited a bribe from the accused in Criminal Case No.
TG-2969-98.

It is truly proper to emphasize at this point that a charge of bribery against a judge is easy to concoct
and difficult to disprove; hence, the Court always demands that the complainant present a panoply of
evidence in support of the accusation.  A mere affidavit attesting that a judge demanded a bribe in
27

exchange for the exoneration of an accused being tried before him is not sufficient. In order that an
accusation of this nature is not to be considered a fairy tale, competent and reliable evidence other
than the testimony of a lone witness needs to be adduced. Every administrative complaint levelled
against a sitting judge must be examined with a discriminating eye, therefore, because its
consequential effects are by their nature highly penal, to the extent that the respondent judge may
face the sanction of dismissal from the service. Indeed, no judge should be disciplined for
misconduct unless the evidence against him is competent and sufficient.  Accordingly, the Court
28

rightfully rejects any imputation of judicial misconduct in the absence of sufficient proof to sustain it.

4.

Defying Administrative Order No. 132-2008

In Administrative Order No. 132-2008, promulgated on September 15, 2008, the Court directed
Judge Larida: (1) to cease and desist from trying cases; (2) to concentrate on deciding the cases
submitted for decision, whether before him or before his predecessors; and (3) to give priority to
cases submitted for decision for more than five years already. The administrative order designated
Judge Emma S. Young as the Assisting Judge for Branch 18, with authority to conduct hearings.

The OCA charged Judge Larida with wilfully violating Administrative Order No. 132-2008 by
antedating several orders in order to anticipate or circumvent the effectivity of the administrative
order.

Anent this charge, the Investigating Justice has reported:

In his Judicial Affidavit, former Branch Clerk of Court, Atty. Calma, accused respondent Judge of
continuing to issue interlocutory orders in certain cases even after the effectivity of Administrative
Order No. 132-2008 on 15 September 2008. Atty. Calma’s testimony is supported by the Judicial
Affidavit of civil docket clerk, Anita Goboy. Together, they enumerate the orders issued by
respondent Judge allegedly in violation of the Administrative Order, to wit:

1. Order dated 15 August 2008, granting the motions to consolidate and set for pre-trial Civil
Case Nos. TG-07-2588 entitled Tagaytay Properties & Holdings Corp. vs. Sps. Pascua, TG-
07-2589 entitled Tagaytay Properties & Holdings Corp. vs dela Vega; TG-07-2590 entitled
Tagaytay Properties & Holdings Corp. vs. Sps. Catolico; and TG-07-2592 entitled Tagaytay
Properties & Holdings Corp. vs. Sps. Mirandilla; but denying consolidation of TG-07-2591
entitled Tagaytay Properties & Holdings Corp. vs. Sps. Lomerio, Sr. with said cases;

2. Order, dated 15 September 2008, granting Urgent Ex-Parte Motion (to resolve motion to
cancel notice of lis pendens) in Civil Case No. TG-08-2743 entitled Osato-Agro Industrial
Development Corporation vs. AB Capital & Investment Corporation;

3. Order, dated 18 September 2008, granting plaintiff's prayer for the issuance of a writ of
preliminary injunction in SP No. TG-05-2519 entitled Metro Alliance vs. Phil. Trust Co.; and,

4. Order, dated 19 September 2008, denying defendant's motion to dismiss in SCA-TG-08-

2593 entitled Tagaytay Resort Development Corporation vs. Nazareno.

It is Atty. Calma’s conclusion that said orders were intentionally ante-dated by respondent Judge
based on the fact that the latter, through Larry Laggui, gave such orders to civil docket clerk Anita
Goboy only on 26 September 2008 although they all appear to have been signed or promulgated on
earlier dates, as above-enumerated. Since Administrative Order No. 132-2008 was already in effect
by then, Atty. Calma reasoned that the sole purpose of ante-dating the orders could only be the
circumvention of said Administrative Order.

For his part, respondent Judge declared that he signed the orders in question on the dates indicated
thereon and released them to the civil docket clerk on the same day. Respondent Judge, thus, was
surprised to find out that said orders were all uniformly released by Larry Laggui to the civil docket
clerk only on 26 September 2008. In any event, respondent Judge pointed out that since the civil
docket clerk had brought the matter to Atty. Calma's attention, the latter-being aware of the effectivity
of Administrative Order No. 132-2008—should have informed him about it and stopped the
promulgation on said date to avoid a violation of the Administrative Order. 29

We declare that the interlocutory orders concerned were signed on the dates indicated therein. The
claim of Atty. Calma and Anita Goboy to the effect that the foregoing orders had been antedated to
circumvent the mandate of Administrative Order No.132-200 was improbable in light of the following
relevant observations of the Investigating Justice, viz:

x x x. If it were true that Atty. Calma believed that their release on a date different from the date of
their signing amounted to an anomaly, then he should have immediately brought the same to the
attention of the presiding Judge. Atty. Calma’s act of instructing civil docket clerk Anita Goboy to
merely indicate at the back of said orders the date when she actually received them evinces a
certain degree of malice incongruent with his key and noble position in the court. 30

It is worth noting that only two of the affected orders were issued after the effectivity of
Administrative Order No. 132-2008, to wit:

1. the Order, dated 18 September 2008, granting plaintiff's prayer for the issuance of a writ of
preliminary injunction in SP No. TG-05-2519 entitled Metro Alliance vs. Phil Trust Co.; and

2. the Order, dated 19 September 2008, denying private defendant's motion to dismiss in
SCA-TG-08-2593 entitled Tagaytay Resort Development Corporation vs. Nazareno. 31

The two orders were issued by Judge Larida two and three days after the effectivity of Administrative
Order No. 132-2008. Even if the administrative order had taken effect immediately, the time when he
acquired actual notice of Administrative Order No. 132-2008 was not shown. On the other hand, that
our administrative circulars and issuances take time to reach the lower courts is a matter proper for
judicial notice. As such, his intent to violate or circumvent Administrative Order No. 132-2008 was
not proved.

Moreover, the Investigating Justice’s following observations are cogent, to wit:

According to the Memorandum submitted by the OCA to the Hon. Chief Justice Reynato S. Puno,
"the administrative order was issued in view of the 139 cases submitted for decision in RTC, Branch
18, Tagaytay City which are already beyond the reglementary period to decide as reflected in the
monthly report of cases submitted by the aforesaid court for the month of April 2008."

Given the purpose of Administrative Order No. 132-2008, it would appear that the mandate given to
respondent Judge to "cease and desist from trying cases" was not meant to penalize him but was
given only as a remedial measure to ensure that he will spend his time writing the decisions of the
long-pending 139 undecided cases instead of trying and hearing other cases.

Hence, respondent Judge’s issuance of the 2 orders in question, on 18 and 19 September 2008,
respectively, while not in strict compliance with the letter of the Administrative Order, also do not
prevent the attainment of its purpose. Indeed, there is nothing on record to even hint at an improper
motive on the part of respondent Judge in issuing said orders apart from the obvious reason that
they were necessary in the disposition of interlocutory matters in these cases. 32

Hence, we dismiss the charge of circumventing Administrative Order No. 132-2008.

5.

Releasing the accused in Criminal Case

No. TG-432-03 on bail despite their being
positively identified as the perpetrators of the crime

The Investigating Justice found and recommended on this charge thuswise:

In Criminal Case No. TG-4382-03, the accused Leandro Go y Ling, Wen Li Chen, Daniel Co, Wilson
Li, Michael Fandag and Arnel Villaser were charged with Violation of Section 8, Article II, RA 9165
(Manufacturing or Engaging in the Manufacture of, in a Clandestine Laboratory, Large Quantity of
Metamphetamine Hydrochloride, Commonly Known as Shabu).

From the Memorandum of the OCA to the Hon. Chief Justice Reynato S. Puno, it appears that
arraignment proceeded on 7 December 2004; pre-trial commenced on 8 August 2005; and trial
ensued on 19 October 2005. On 24 March 2006, the Chinese accused (Go, Li Chen, Co and Li) filed
a petition to fix bail for their provisional liberty. The prosecution did not object thereto, and, instead
filed a formal offer of evidence on 3 May 2007, as it had, by then, finished with its presentation of
evidence. On 1 June 2007, the Chinese accused filed a memorandum in support of their petition for
bail. On June 14, 2007, respondent Judge granted the petition for bail of the accused.

In this administrative charge against respondent Judge, the OCA questions his grant of bail to the
accused for the reasons that: (1) the crime they are accused of is a capital offense, and the
transcript of stenographic notes taken during the presentation of the evidence for the prosecution
indicates that 2 witnesses positively identified the accused as the perpetrators of the crime; and (2)
there are suspicious circumstances surrounding the release of the resolution granting bail to the
accused. 33

xxxx

In this case, after the prosecution finished presenting its evidence, respondent Judge came to the
conclusion that the evidence of the accused's guilt was not strong and so granted their petition for
bail.

However, the OCA disputes respondent Judge’s assessment of the guilt of the accused based on
the evaluation made by Branch Clerk of Court Atty. Stanlee D.C. Calma of the transcript of
stenographic notes on the case that 2 witnesses for the prosecution had positively identified the
accused as the perpetrators of the crime. 34

xxxx

On the other hand, respondent Judge defends his grant of bail in his Judicial Affidavit as follows:
Q: OCA was faulting you for stating in your resolution that there was no positive identification of the
accused when the transcript of stenographic notes say otherwise. What can you say to this?

A: The lack or the improper identification of the accused was just one of the grounds I cited to grant
the petition. My assessment of the evidence on this matter was arrived at on two grounds: 1. failure
of police officer Eusebio to positively identify the accused in his direct testimony, and 2. the failure of
another prosecution witness Mr. Basilio to positively identify the accused taking his entire testimony
into consideration, the direct and cross.

xxxx

52. Q: What can you say to the allegations of Atty. Calma that you had a meeting together with some
concerned court personnel in your chamber purposely to discuss the resolution specifically on the
matter of positive identification?

A: Indeed it transpired but I stood pat on my decision.

The matter of determining whether or not the evidence is strong is a matter of judicial discretion that
remains with the judge. Such discretion must be sound and exercised within reasonable bounds. In
this case, it appears that respondent Judge gave a lot of thought to the petition for bail before
granting it, even going to the extent of consulting with some of his court personnel on the matter
after receiving the evidence of the prosecution. After much cogitation, respondent Judge exercised
his judicial discretion and came to the conclusion that the evidence against the accused was not
strong and they were not positively identified as the perpetrators of the crime.

Respondent Judge’s appreciation of the evidence against the accused lies within his sound
discretion. This mandated duty to exercise discretion has never been reposed on the Branch Clerk
of Court, who cannot be allowed to supplant his personal opinions for that of the judge.

As long as there was no irregularity in the proceedings adopted in the grant of bail, judicial discretion
must be respected and considered to have been rendered within reasonable bounds.

Respondent Judge’s lack of malice or bad faith in granting bail to the accused in Criminal Case No.
TG-4382-03 is underscored by the proceedings that transpired thereafter. According to the
Memorandum of the OCA to the Hon. Chief Justice Reynato S. Puno, on 2 July 2007, the
prosecution filed a motion for reconsideration of the 14 June 2007 resolution granting bail. The
motion was set for hearing and the accused were mandated to appear before the court. Upon failure
of the accused (except Li and Li Chen) to attend the hearing, respondent Judge canceled their cash
bail and issued warrants for their arrest. Further, upon motion of the prosecution, respondent Judge
issued a hold-departure order against the accused on 23 July 2007. 35

We concur with the foregoing findings and recommendation of the Investigating Justice.

Verily, the determination of whether or not the evidence of guilt of the accused in Criminal Case No.
TG-4382-03 was strong for purposes of resolving the petition for bail was a matter of judicial
discretion for Judge Larida as the trial judge. Only he could competently resolve the matter of bail.
His exercise of discretion must be sound and reasonable. In the view of the Investigating Justice,
Judge Larida, having given a lot of thought to the petition for bail before granting it, soundly and
reasonably exercised his discretion thereon. Unless an appropriate judicial review would show him
to have acted arbitrarily, capriciously, or whimsically in doing so, his granting of the petition for bail
should be upheld and respected.

This administrative investigation could not be the occasion to review Judge Larida’s granting of bail.
Only the proper superior court could say whether his exercise of discretion in resolving the petition
for bail was sound and reasonable. Thus, Atty. Calma’s adverse conclusion based on the transcript
of the proceedings to the effect that the Prosecution’s witnesses had positively identified the
accused could not effectively contradict Judge Larida’s determination of the issue of bail.

Whether the identification in Criminal Case No. TG-4382-03 was positively made or not was a matter
for the judicial perception of Judge Larida only. In these proceedings, he explained his reasons for
granting bail. We must respect his explanation. The accused in Criminal Case No. TG-4382-03 were
charged with the manufacture of methamphetamine hydrochloride. The relevant testimony of the
Prosecution’s witnesses was to the effect that at the time the police arrested them on July 12, 2003
the accused were loading boxes unto various trucks and vans, with the boxes being later on
determined to contain illegal substances.  As such, the testimony did not establish the manufacture
36

of methamphetamine hydrochloride, the non-bailable offense charged, but a bailable lesser offense.
Judge Larida’s June 14, 2007 resolution granting the petition for bail reflected the distinction, viz:
In the ensuing enforcement of the search warrant issued by the Municipal Trial Court of Silang,
Cavite, several containers and sacks were found in the house described therein which were
suspected to be essential chemicals in the manufacture of methamphetamine hydrochloride, a
prohibited drug. But there was no evidence to establish that the accused had something to do with
the presence of these alleged illegal substances in the house subject of the search warrant. The
accused were not caught inside the house which the prosecution claims to be a clandestine shabu
laboratory. But the "Chinese-looking persons" were apprehended outside the clandestine laboratory,
outside its gates. They were arrested in flagrante delicto loading the containers of illegal substances
onto the vans/trucks outside the house. Loading them onto a motor vehicle does not fall within the
purview of the word "manufacture" of prohibited drugs otherwise, we are stretching the meaning of
the term a bit too far.
37

Aside from assailing the resolution granting the petition for bail, Atty. Calma maintained that the
resolution had been released under suspicious circumstances considering that the defense counsel,
Atty. Albert T. Villaseca, had already gone to the RTC ready to post the cash bail of ₱200,000.00 for
each of the accused even prior to the release of the June 14, 2007 resolution granting bail. 38

Anent this, Atty. Villaseca explained his presence in Branch 18 in the following manner:

2. Q: On June 18, 2007 at about 9:00 o'clock in the morning, where were you?

A: I was at the Regional Trial Court, Branch 21, Imus, Cavite before the Honorable Judge Norberto
J. Quisumbing, Jr. I just came from the Regional Trial Court, Branch 19, Bacoor, Cavite as I initially
attended the hearing of Criminal Case No. B-2002-623 titled "People of the Philippines, Plaintiff,
versus, Benedicto Baraquilles Maliksi, Accused," for Homicide. The case was postponed as the
Prosecutor in said case was sick. I have with me a "Certified True Copy" of the "Minutes" which I
signed together with the "Order" of the Honorable Judge Eduardo Israel Tanguangco both dated
June 18, 2007.

3. Q: What were you doing at that time before the Regional Trial Court, Branch 21, Imus, Cavite at
the sala of the Honorable Judge Norberto J. Quisumbing, Jr.?

A: I attended the hearing and appeared as counsel for both of the accused in the case of People of
the Philippines, Plaintiff, versus, Guillermo Silla y Legaspi and Paulino Silla y Purificacion, Accused,
docketed as Criminal Case No. 10242-02 for Homicide.

4. Q: What document or documents, if any, do you have to show before this Honorable Court that on
June 18, 2007 at about 9:00 o'clock in the morning you attended and appeared before a criminal
case at the Regional Trial Court, Branch 21, Imus, Cavite before the sale (sic) of Honorable Judge
Norberto J. Quisumbing, Jr.?

A: I have with me the "Original Copy" of the Honorable Court's "Order" dated June 18, 2007 together
with a "Certified True Copy of my "Appearance" indicated by my two signatures therein and the
"Minutes of the Proceedings" in the case of People of the Philippines, Plaintiff, versus, Guillermo
Silla y Legaspi and Paulino Silla y Purificacion, Accused, docketed as Criminal Case No. 10242-02
for Homicide.

5. Q: At about what time did you leave the Regional Trial Court, Branch 21, Imus, Cavite after you
attended and appeared in the case you are handling?

A: I left the courtroom at around 10:30 o’clock in the morning after my case was called.

6. Q: What did you [do] after you left the Regional Trial Court, Branch 21, Imus, Cavite at around
10:30 o’clock in the morning of June 18, 2007?

A: I went to my office to get the records of another case I was handling that day in the afternoon and
briefly prepared for its afternoon hearing.

7. Q: what is this case all about?

A: It is a civil case for Annulment of Deed of Sale, Annulment of Title and Damages docketed as
Civil Case No. TG-2209 titled Benjamin Q. Diwa, et. al., Plaintiffs, versus, Maxima R. Matias and
International Exchange Bank, Defendants, pending before the Regional Trial Court, Branch 18,
Tagaytay City at the sala of the Honorable Judge Edwin G. Larida, Jr. which is scheduled to be
heard in the afternoon of June 18, 2007 at around 1:30 o'clock in the afternoon.

8. Q: What happened next after you arrived at your office to get the records and prepared (sic) for
this other case that you are handling in the afternoon of June 18, 2007?
A: At around 11:30 o'clock in the morning, I left my office in Imus, Cavite and together with my driver
and one of my office personnel, proceeded [to] Tagaytay City to attend to the hearing of my case.

9. Q: What happened next, if any?

A: I arrived at the parking ground of the Regional Trial Court, Branch 18, Tagaytay City at around
12:30 o'clock in the afternoon.

10. Q: Then, what happened next?

A: Upon arriving at the office of the personnel and staff of the Regional Trial Court, Branch 18,
Tagaytay City, I was informed by my clients and a court personnel that all the cases scheduled in the
afternoon would be rescheduled to another date as there was an unusual incident which transpired
inside the courtroom earlier.

11. Q: What is that unusual incident which transpired earlier in the courtroom of the Regional Trial
Court, Branch 18, Tagaytay City?

A: I was informed that one of the accused in a rape case from the Provincial Jail of the Province of
Cavite took hostage of one of the court employees and that is the reason why all the cases
scheduled to be heard in the afternoon were rescheduled to another date.

12: Q: What document, if any, do you have to show before this Honorable Court that there was a
hostage taking incident that transpired in the morning of June 18, 2007 in side(sic) the courtroom of
the Regional Trial Court, Branch 18, Tagaytay City?

A: I have with me a "Certified True Copy" of the Police Blotter issued by SPO4 Samuel Baybay of
the Tagaytay City Police Station.

13. Q: What did you do after that?

A: I provided the court personnel with my available date, briefly talked to my clients and knowing that
our case was already postponed I inquired about the status of my other cases pending before the
Regional Trial Court, Branch 18, Tagaytay City.

14. Q: What happened next, after that?

A: As I (was) browsing upon the records of Criminal Case No. TG-4382-03 titled The People of the
Philippines, Plaintiff, versus, Leandro Go y Lim, et al, Accused, for Violation of Sec. 8, Art. 2, RA
9165, I came across the resolution of the Honorable Court in our petition for bail.

15. Q: What happened next, if any?

A: I personally received a copy of the Honorable Court's Resolution and, thereafter, immediately and
excitedly informed the aunt of one of my clients as I know she would be very happy about it as my
clients have been innocently lingering in jail for almost four years and have already lost faith and
hope of ever having temporary liberty.

16. Q: What happened next, if any?

A: I informed the aunt of one of my clients the amount of the bond required to (be) posted in cash
and she told me to meet her at the Provincial Jail at Trece Martires City, Province of Cavite and give
her a copy of the Honorable Court's Resolution and she would provide for the amount of the cash
bond required by the Honorable Court.

17. Q: What happened next, if any?

A: I inquired from one of the court personnel that if we could post a cash bail bond that afternoon,
could my clients be ordered released, and what other documents the court requires to immediately
avail of the "order of Release."

18. Q: What happened next, if any?

A: After I was informed by one of the court personnel that since there are no cases to be heard that
afternoon and since all the cases will just be rescheduled to another date, they have a lot of time to
take care of the "Order of Release" of my clients as long as all the other court requirements for the
posting of the cash bail bond are complied with. I wasted no time and hurriedly left the Regional Trial
Court, Branch 18, Tagaytay City. Proceeded to the Provincial Jail at Trece Martires City, Province of
Cavite to inform my clients about the Honorable Court's Resolution and to meet the aunt of one of
my clients who will take care of the cash bail bond required. On my way, I informed the aunt of my
client about the other requirements for the posting of the cash bail bond and prepared the Cash
Bond Undertaking of my clients in my laptop computer.

19. Q: What happened next, if any?

A: I arrived at the Provincial Jail at Trece Martires City, Province of Cavite before 2:00 o'clock in the
afternoon. Delivered a copy of the Honorable Court's Resolution to the Provincial Jail Warden and
met the aunt of one of my clients who provided me with the cash in the amount of ₱400,000.00 for
the cash bail bond required, pictures of the accused together with the other requirements for the
cash bail bond. I explained the consequences of a Cash Bond Undertaking to my clients, have (sic)
them sign and subscribe to it and then notarized it.

20. Q: What happened next, if any?

A: I wasted no time and hurriedly left for Tagaytay City. Thereafter, I posted the cash bail bond and
submitted all the requirements to secure an "Order of Release" for my clients.

21. Q: What happened next, if any?

A: All documents I submitted were found in order by the personnel in charge. I was able to secure an
"Order of Release" for my clients. Thereafter, I again proceeded to the Provincial Jail at Trece
Martires City, Province of Cavite and delivered to the Provincial Jail Warden an copy of the "Order of
Release." 39

Atty. Calma’s bare allegations, which were obviously based on surmise and speculation, cannot be
preferred because Atty. Villaseca’s foregoing explanation of his presence in Branch 18 was
supported by authentic documents. Accordingly, we dismiss the charge of Judge Larida’s having
improperly granted bail in Criminal Case No. TG-4382-03.

6.

Charge of granting the motion to quash the

information in Criminal Case No. TG-5307-06

without a case record and without requiring a

comment from the public prosecutor

The Investigating Justice said regarding this charge:

In Criminal case No. TG-5307-06, Jayson Espiritu, among others, was charged with Murder and was
arrested on 6 August 2008 and detained at the Provincial Jail. On 22 August 2008, Jayson Espiritu
filed a motion to quash/dismiss information on the ground that he was a minor at the time of the
commission of the offense.

In an Order, dated 5 September 2008, respondent Judge set the motion to quash for hearing on
October 3, 2008 and gave the prosecution 15 days to file its comment/opposition thereto. However,
without waiting for the 15-day period to expire, respondent Judge granted Jayson Espiritu's motion to
quash on 15 September 2008.

According to the Judicial Affidavit of former Branch Clerk of Court Atty. Stanlee D.C. Calma, aside
from not giving the prosecution a chance to oppose Jayson Espiritu's motion to quash, respondent
Judge personally drafted the Order granting said motion without access to the records of the case.
Moreover, respondent Judge allegedly gave an advance copy of the Order granting the motion to
quash to the father of Jayson Espiritu, who, in turn, showed the same to the warden of the Provincial
Jail even before the court had personally served the same upon said warden on 26 September
2008. According to Atty. Calma, he was informed by the widow of the victim in said criminal case
that respondent Judge had been paid off to quash the information against Jayson Espiritu.

In his defense, respondent Judge explained that he granted Jayson Espiritu’s motion to quash
pursuant to RA 9344 because Jayson Espiritu was only a minor at the time of the commission of the
offense, as proved by his birth certificate attached to the motion. Respondent Judge denied having
received a pay-off to quash the information against Jayson Espiritu, and explained that he did not
wait for the comment/opposition of the prosecution because he followed the substance of the law
and acted swiftly in the best interests of the minor accused. Respondent Judge asserts that he
personally prepared the order on 15 September 2008. 40

Jayson Espiritu, the accused in Criminal Case No. TG-5307-06, was a minor of 15 years and 11
months at the time of the commission of the offense charged as borne out by the copy of his birth
certificate attached to the motion to quash. He was for that reason entitled to the quashal of the
information filed against him for being exempt from criminal liability based on Section 6 of Republic
Act No. 9344 (Juvenile Justice and Welfare Act of 2006), which states as follows:

Section 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the
time of the commission of the offense shall be exempt from criminal liability. However, the child shall
be subjected to an intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability,
which shall be enforced in accordance with existing laws. (Emphasis supplied)

The foregoing notwithstanding, Judge Larida should not have acted on Espiritu’s motion to quash
without first giving the public prosecutor the opportunity to comment on the motion. That opportunity
was demanded by due process.  As a judge, he should exercise patience and circumspection to
41

ensure that the opposing sides are allowed the opportunity to be present and to be heard.  Only
42

thereby could he preclude any suspicion on the impartiality of his actuations.  But he cannot now be
43

sanctioned because it is a matter of public policy that in the absence of fraud, dishonesty or
corruption, the acts of a judge done in his judicial capacity are not subject to disciplinary action
although they are erroneous.  Considering that there was no fraud, dishonesty or corruption that
44

attended the omission of prior notice, we simply caution him against a repetition of the omission of
prior notice.

The Investigating Justice found the charge of bribery against Judge Larida unsupported by
competent evidence.  We concur. The records are bereft of the evidence that would establish the
45

charge. Innuendo and hearsay will not establish the accusation. We insist that any accusation of
bribery against a judicial officer should be made upon hard and firm evidence of it. Hence, we
dismiss the charge of bribery.

7.

Charge of granting under questionable circumstances

the petition for the issuance of owner’s duplicate copies
of various TCTs in LRC Case No. TG-06-1183

In its report, the investigating team from the OCA made the following observations with respect to
LRC Case No. TG-06-1183, to wit:

1. There was no hearing conducted to establish the jurisdiction of the court and subsequent
referral of the reception of evidence ex parte to Clerk of Court Desiree Macaraeg as
commissioner;

2. There was no proof to establish that the Register [of] Deeds of Tagaytay City, although
furnished with a copy of the petition, had actually received it;

3. There was no commissioner's report attached to the record relative to the reception of
evidence ex parte conducted on 5 & 10 May 2006;

4. The affidavit of loss of titles was presented by petitioner Santos to the Register of Deeds
only on 5 May 2006 at the same time the petition was allegedly heard by the commissioner;

5. Per minutes dated 10 May 2006, there appears the name [of] Fiscal Manuel D. Noche, for
the government, yet the TSN state[s] that there was no appearance of Fiscal Noche on 10
May 2006 or even the 5 May 2006 ex-parte hearing.

6. Petitioner's formal offer of evidence was admitted on 10 May 2007 when the same was
filed only on 11 May 2007. The order also made it appear that there is no objection
interposed by the City Prosecutor despite non-appearance thereof.
 7. The comment of the Register of Deeds on petitioner's Urgent Manifestation alleging that
the Register of Deeds delivered the TCT’s to Marie Cruz although stated 4 September 2006
was filed in court only on 4 December 2006.46

The Investigating Justice recommended the dismissal of the charge of irregularity for lack of
evidence and substantiation, thusly:

Although the Investigation Report details the legal proceedings in LRC Case No. TG-06-1183, and
certain documents from the case were offered in evidence for the complainant, the OCA did not fully
elaborate on the exact nature of this charge against respondent Judge. Moreover, during the cross-
examination of Diana Ruiz, the latter manifested a lack of knowledge over the events that transpired
in said LRC case. No other witnesses were presented to substantiate this charge. Therefore, it is
recommended that this charge against respondent Judge be DISMISSED. 47

The finding and recommendation by the Investigating Justice are well-taken.  The mere specification
1âwphi1

of accusations against Judge Larida could not demonstrate the veracity of the accusations
notwithstanding the attachment of all the documents allegedly in support of the accusations.
Evidence that was relevant and competent must have been adduced to support the accusation.
Diana Ruiz’s judicial affidavit attesting that the corresponding documents in support of the
investigating team’s accusations were faithful reproductions of the originals that formed part of LRC
Case No. TG-06-1183, without more, did not suffice to establish the commission of irregularities in
the disposition of the case. It is important to stress that the proceedings upon administrative charges
made against judicial officers should be viewed with utmost care, and such proceedings are
governed by the rules of law applicable to criminal cases, with the charges to be proved beyond
reasonable doubt, by virtue of their nature as highly penal in character.48

8.

Charge of liability for the fire

that occurred on October 12, 2008

Anent the fire that occurred in the records room of Branch 18, we absolve Judge Larida because no
evidence directly linking him to the arson incident was presented.  It further appears that at the time
49

of the occurrence of the fire, Judge Larida was hospitalized for a kidney injury that he had sustained
from a fall on the night of October 9, 2008. 50

Nevertheless, the OCA insisted on Judge Larida’s responsibility for the fire based on certain
circumstances, namely: (a) the report of the Bureau of Fire Protection revealed that access to the
courthouse was through the rear entrance,  and he admitted that such entrance was his access to
51

the courthouse;  (b) despite his being the Presiding Judge of Branch 18, he did not actively take part
52

in the investigation of the arson incident, thereby manifesting his lack of interest in or concern over
the burning of the courthouse;  and (c) he had a motive to burn the courthouse in order to destroy
53

the court’s case records that would reveal his wrongdoings. 54

However, Atty. Calma disclosed that aside from Judge Larida, utility workers Ofelia Parasdas and
Romelito Fernando, Judge Young, and Marticio all had keys to the entrance doors of the courthouse
(i.e., two front doors and one back door),  and that he (Atty. Calma), along with the clerk-in-charge of
55

the civil docket Anita Goboy and criminal docket clerk Romelito Fernando, were the only ones who
had access to the records room because only they knew the location of the key to the records
room. 56

Equally notable is that the forensic report denominated as Dactyloscopy Report No. F-129-08 issued
by the Philippine National Police Cavite Provincial Crime Laboratory Office on November 21,
2008  showed that one of the latent prints lifted from the crime scene belonged to Romelito
57

Fernando, a personnel who had testified against Judge Larida during the investigation.

Judge Larida denied his supposed lack of interest in the investigation of the arson incident by
reminding that he had immediately requested the NBI to investigate the arson incident upon learning
about it.  He explained that he had refrained from further actively participating in the investigation
58

because he had been barred by the OCA from reporting for work;  that unlike the staff members of
59

RTC Branch 18 who had continued to report for work and had been interviewed by the investigating
team, he had not been summoned for any interview; and that he also learned from the NBI agents
themselves that they had been ordered to cease from further investigating the fire upon the entry of
the OCA in the investigation. 60

Imputing to Judge Larida the motive to burn the courthouse in order to destroy case records that
could expose his wrongdoings was baseless and speculative. We reject the imputation. Before any
judge should be disciplined for any offense, the evidence presented against him must be competent
and derived from personal knowledge. The judge ought not to be sanctioned except upon a proper
charge, and only after due investigation and with competent proof. 61

9.

Consolidated Penalty for Judge Larida

Judge Larida has been found guilty of a less serious charge for not complying with the directive of
Administrative Circular No. 28-2008 to send an inventory of locally-funded employees to the
Supreme Court within one month from notice of the circular, and of allowing locally funded
employees to perform more than merely clerical tasks; and of a light charge for unbecoming conduct
for not causing the investigation of the solicitations of commission from a bonding company
committed by three employees assigned to his court.

It is the sense of the Court to consolidate the imposable sanctions on Judge Larida into a single
penalty of suspension from office without pay for a period of two months, to be effective immediately
upon notice.

10.

Letter-complaint of Jayson Marticio

Pursuant to the recommendation of the Investigating Justice, we dismiss the letter complaint of
Marticio for lack of substantiation by him.

WHEREFORE, the Court:

1. IMPOSES ON Judge Edwin G. Larida, Jr. the penalty of SUSPENSION FROM OFFICE
WITHOUT PAY FOR A PERIOD OF TWO MONTHS, to be effective immediately upon
notice, with a warning that sterner sanctions will be meted out to him upon his commission of
similar acts or omissions;

2. DISMISSES the following charges against Judge Larida, Jr. for lack of evidence to support
them, namely: (a) Extorting money from detained accused Raymund Wang; (b) Defying the
directive of the Supreme Court in Administrative Order No. 132-2008; (c) Improperly granting
bail to the accused in Criminal Case No. TG-4382-03; (d) Receiving a bribe in exchange for
granting Jayson Espiritu' s motion to quash the information in Criminal Case No. TG-5307-
06; (e) Granting under questionable circumstances the petition for the issuance of owner's
duplicate copies of various certificates of title in LRC Case No. TG-06-1183; and (j)
Involvement in the fire that razed the records room of Branch 18 of the Regional Trial Court
in Tagaytay City; and

3. DISMISSES the letter-complaint of Jayson Marticio dated October 20, 2008 due to his lack
of interest to prosecute it.

SO ORDERED.

G.R. No. L-11074             February 27, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RUFELINO ZAPATA and FERNANDICO TUBADEZA, defendants-appellants.

Ernesto P. Laurel for appellant.

Office of the Solicitor General A. Padilla and Solicitor General I. C. Borromeo for appellee.

ENDENCIA, J.:

Appeal from the decision of the Court of First Instance of Abra convicting Rufelino Zapata and
Fernandico Tubadeza of the crime of murder, as principal and accomplice, respectively, and
sentencing the former to reclusion perpetua, and the latter to an indeterminate penalty of from 6
years, 1 month and 11 days of prision mayor, as minimum, to 12 years, 5 months and 11 days
of reclusion temporal, as maximum, both to indemnify the heirs of the deceased in the sum of
P6,000.

It appears from the evidence on record that on the evening of February 15, 1951, at about eight
o'clock, while Fausta Tubadeza, a sexagenarian, was cutting firewood near her house at the barrio
of Camcamiring, municipality of Dolores, Abra, appellants Rufelino Zapata and Fernandico
Tubadeza approached her, and Zapata, after telling her "You are the old woman who bewitched my
wife," repeatedly beat her with a piece of wood about 2 ½ feet long and 3 inches in diameter, on
different part of her body, while Fernandico Tubadeza dragged her by the arms. Her husband
Mariano Bondame, also a sexagenarian, attracted by the noise outside their house, looked out of the
window and saw his wife being dragged by Fernandico Tubadeza and clubbed by Rufelino Zapata.
Mariano Bondame immediately set to go down to help his wife, but Zapata met him at the stairs and
threatened him bodily harm should he intervene. Bondame helplessly saw his wife being beaten and
dragged towards the direction of the house of councilor Simeon Tubadeza, Bondame then went to
the house of Estanislao Elvena to ask for help and followed appellants to the house of councilor
Tubadeza, where he saw his wife already sprawled on the yard uttering, "I am going to die now," so
he approached and embraced her. Fausta then told her husband she had been maltreated and that
some of her teeth were broken.

The evidence further shows that Fausta was taken to the house of councilor Tubadeza, who told
appellant Zapata and one Florencio Pilor to go to Fausta's house, and upon their return they brought
a bottle of wine and a bottle of oil and told the councilor, "Here are the ingredients for witchcraft that
we took from her house." The councilor then wrote on a piece of paper (Exhibit A) a statement that
Fausta practiced witchcraft on Zapata's wife and had the same thumbmarked by Fausta. Likewise
Bondame was forced to sign it. Fausta died that same evening at the house of councilor Tubadeza.

Dr. Paterno Millare who made a post-mortem examination of Fausta's body, found that the cause of
her death was:

Fracture, compound, complicating, Rib 5th, postero-lateral portion, right; Hemorrhage,

internal, acute; Wound, lacerated, lung, right; and Contusion, multiple and ecchymosis,
abrasion evulsion, teeth, upper incisor, canine, jaw, left, and etc.

Appellant Fernandico Tubadeza submitted a defense of alibi, attempting to show that on the night of
February 15, 1951, he was in Bantay, Ilocos Sur, in the house of the parents of his wife; while
Rufelino Zapata offered the following defense: That on the night in question, his wife Carolina
Mercurio was seriously ill; that in view of the barking of dogs and whining of pigs in his yard, he went
down and saw Fausta Tubadeza, who had a reputation in their barrio of being a witch, run away; that
while he was chasing her, she fell face down; that when he overtook her, she confessed that he had
bewitched her wife, whereupon Zapata took her to the house of councilor Simeon Tubadeza; that the
latter, being a near relative of Fausta and ashamed of her admission of having practiced witchcraft,
kicked her a number of times in her right side; that councilor Tubadeza then ordered appellant
Zapata to fetch her husband Mariano Bondame, and when Bondame arrived and knew of his wife's
admission he became angry and also kicked her a number of times on the right side, below the
armpit; and that councilor Tubadeza then wrote affidavit Exhibit A whereby Fausta assumed
responsibility should Zapata's wife die.

By and large, the issue in this appeal is credibility of witnesses.

Referring to the alibi put up by Fernandico Tubadeza, we give it little or no evidence at all not only
because this kind of defense can be fittingly conceived and conveniently adjusted to suit any time
and place ad libitum but that his witnesses are all his relatives. On the other hand, prosecution
witnesses Salvador Turqueza, Relito Claro and Mariano Bondame positively identified and pointed
him as the one who dragged the deceased while his co-defendant Rufelino Zapata clubbed her.

Appellant Zapata's defense that the deceased died from the hands of Simeon Tubadeza, Florendo
Pilor and her own husband Mariano Bondame, who all kicked her, is likewise unworthy of belief.
Although it is true that, originally, Simeon Tubadeza and Florendo Pilor were included as defendants
in the complaint filed before the justice of the peace, upon reinvestigation of the case, however, the
same was dismissed as against them for lack of evidence and the fiscal had to exclude them from
the information. Besides, Mariano Bondame was not among those originally indicted. It is hard to
believe that Mariano Bondame, the aged husband of the deceased, would ever attempt to harm his
wife, le alone kick her several times in the presence of many people, just for the flimsy reason of
having admitted that she was a witch. On the contrary, Bondame positively testified that he tried in
vain to rescue his wife from the hands of appellants when he saw her beaten up, only to be
confronted by Zapata at the stairs and threatened with bodily harm.

Zapata further contends that prosecution witnesses Salvador Turqueza and Relito Claro who
testified having seen him beat the deceased on the back and on the nape, did not tell the truth
because Dr. Millare contradicted them by saying that he did not find any ecchymosis, discoloration
or laceration at the back and nape. We do not, however, find any inconsistency between the two
versions, rather they complement each other, for while these eyewitnesses said that they saw
appellant Zapata beat the deceased on the back, Dr. Millare, in his post-mortem examination found:
 External: The body is cold and in rigor mortis. The height is about 4 ft. and 8 inches. The
weight is about 100 pounds more or less. There is presence of contusions and abrasions
with ecchymosis of the left face and with avulsion of the teeth, upper incisor and canine, left
upper jaw. Presence of a compound complicating fracture of the 5th rib at the right postero-
lateral portion of the chest wall. Presence of contusions on the anterior portions of the legs
and thighs.

Internal: On opening the chest wall, there is a fracture, compound, complicating, of the 5th
rib, right, postero-lateral portion of the chest; with wound, lacerated on the right lung and
internal hemorrhage of the right lung. There is approximately 150 cc of unclotted blood on
the right chestcavity. Heart and left lung are apparently normal.

which evidently shows that the deceased was beaten mercilessly not only on the head but also on
different parts of the body as shown by the avulsion of the teeth, abrasions and ecchymosis on the
left face, the compound fracture of the 5th rib, on the postero-lateral portion. These two
eyewitnesses could not be expected to tell the exact spots where the blows had landed, considering
that it was nighttime and those fleeting moments cannot be recalled with exact precision. At all
events, both witnesses are agreed that it was appellant Zapata who clubbed the deceased.

The Solicitor-General points out that Fernandico Tubadeza should not be held merely as an
accomplice as found by the lower court but as co-principle, because.

It is to be observed that while it may be true as the trial court has stated, that "there is no
showing in what manner Fernandico too part in the torture, so much so that the evidence
discloses that only the accused Rufelino Zapata was provided with a club," yet the
established facts that (a) Fernandico accompanied Zapata in going to the house of the
deceased; (b) he held both hands of the deceased while Zapata was hitting her and (c) he
pulled the deceased by the hands while Zapata continued clubbing her clearly show the
existence of concert of design between the two. At any rate, even granting that there existed
no previous understanding between the two appellants, yet it may be implied from the acts of
Fernandico, as stated above, that they had the same unity of purpose in the execution of the
act (People vs. Ging Sam, et al., 94 Phil., 139; People vs. Binasing, et al., 98 Phil., 902).

We agree with the Solicitor-General.

We likewise agree with his observation that evident premeditation is not present in this case, but that
abuse of superior strength should be taken in its stead as the qualifying circumstance for murder,
considering that the deceased was a frail and undersized woman sexagenarian.

As to the aggravating circumstances of disregard of sex and age and nocturnity alleged in the
information, we find that while the evidence fails to show that nighttime was purposely sought by
appellants to commit the crime, it positively demonstrates that they disregarded the age and sex of
the deceased, it appearing that she was a frail woman of 65, weighing only around 100 pounds and
only 4 feet and 8 inches in height, while Zapata and Tubadeza were 32 and 27 years of age,
respectively, when the crime was committed.

On the other hand, we believe that appellants are entitled to the mitigating circumstance of lack of
intention to commit so grave a wrong as that committed, as it was evident that they merely wanted to
denounce her as a witch before councilor Tubadeza when she was beaten and dragged to the
councilor's house, but that she received a beating more than she could take, for which she died that
same evening. In addition, the mitigating circumstance of obfuscation should be appreciated in their
favor, as we held in U.S. vs. Makalintal, 2 Phil., 448, and People vs. Balneg, et al., 79 Phil., 805, for
it clearly appears that appellants committed the crime in the belief that the deceased had cast a spell
of witchcraft upon the wife of Zapata which caused her serious illness.

Considering that there are two mitigating circumstances as against one aggravating in the case,
appellants are entitled to the minimum penalty prescribed by Art. 248 of the Revised Penal Code
which is reclusion temporal in its maximum period. Applying the Indeterminate Sentence Law, the
penalty that should be imposed is 10 years and 1 day of prision mayor as minimum, and 17 years, 4
months and 1 day of reclusion temporal as maximum.

With the above modifications, the decision appealed from is affirmed in all other respects.

G.R. No. 178145               July 7, 2014

REYNALDO S. MARIANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
 RESOLUTION

BERSAMIN, J.:

The courts of law are hereby reminded once again to exercise care in the determination of the
proper penalty imposable upon the offenders whom they find and declare to be guilty of the offenses
charged or proved. Their correct determination is the essence of due process of law. The Office of
the Provincial Prosecutor of Bulacan charged the petitioner with frustrated murder for hitting and
bumping Ferdinand de Leon while overtaking the latter's jeep in the information filed in the Regional
Trial Court, Branch 81, in Malolos, Bulacan (RTC), viz:

That on or about the 12th day of September, 1999, in the municipality of Angat, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then
and there wilfully, unlawfully and feloniously, with the use of the motor vehicle he was then driving,
with evident premeditation, treachery and abuse of superior strength, hit, bump and run over with the
said motor vehicle one Ferdinand de Leon, thereby inflicting upon him serious physical injuries which
ordinarily would have causedthe death of the said Ferdinand de Leon, thus performing all the acts of
execution which should have produced the crime of murder asa consequence, but nevertheless did
not produce it by reason of causes independent of his will, that is, by the timely and able medical
assistance rendered to said Ferdinand de Leon. Contrary to law. 1

The CA summarized the antecedent events as follows:

At about 6:30 in the evening of September 12, 1999, Ferdinand de Leon was driving his owner type
jeep along Barangay Engkanto, Angat, Bulacan. With him were his wife, Urbanita, and their two-year
old son, as they just came from a baptismal party. Luis de Leon, an uncle of Ferdinand, also came
from the baptismal party and was driving his owner type jeep. Accused-appellant Reynaldo Mariano
was driving his red Toyota pick-up with his wife, Rebecca, and their helper, Rowena Años, as
passengers. They had just attendeda worship service in Barangay Engkanto.

The Toyota pick-up overtook the jeep of Ferdinand de Leon and almost bumped it. Ferdinand got
mad, overtook the pick-up and blocked its path. Reynaldo Mariano stopped the pick-up behind the
jeep. Ferdinand alighted from his jeep and approached Reynaldo. Ferdinand claimed that he and
Reynaldo had an altercation. However, Reynaldo insisted that he just stayed inside the pick-up and
kept quiet while Ferdinand hurled invectives at him. Urbanita tried to pacify Ferdinand and sought
the assistance of Luis de Leon. Luis intervened and told Ferdinand and Reynaldo
"magpasensiyahan na lamang kayo at pagpasensiyahan mo si Ferdinand." Ferdinand and Reynaldo
heeded the advice of Luis and they went their separate ways.

Instead of proceeding to his house in Norzagaray, Ferdinand decided to drop by his mother’s house
in San Roque, Angat to pick up some items. He parked his jeep in front of the house of his mother
and alighted therefrom. However, hewas bumped by a moving vehicle, thrown four (4) meters away
and lostconsciousness. Urbanita shouted, "Mommy, Mommy, nasagasaan si Ferdie." She identified
the fast moving vehicle that bumped Ferdinand as the same red Toyota pick-up driven by Reynaldo.

On the other hand, Reynaldo and his wife, Rebecca, tried to show that the jeep of Ferdinand
stopped on the road in front of the house of the latter’s mother about five (5) to six (6) meters away
from their pick-up. Reynaldo stopped the pick-up as he saw an oncoming vehicle, which he allowed
to pass. Thereafter, Reynaldo made a signal and overtook the jeep of Ferdinand. However,
Ferdinand suddenly alighted from his jeep, lost his balance and was sideswipedby the overtaking
pick-up. Reynaldo did not stop his pick-up and he proceeded on his way for fear that the bystanders
might harm him and his companions. After bringing his companions to their house in Marungko,
Angat, Bulacan, Reynaldo proceeded to Camp Alejo S. Santos in Malolos, Bulacan to surrender and
report the incident.

Ferdinand was brought to the Sto. Niño Hospital in Bustos, Bulacan, where he stayed for two and a
half days and incurred medical expenses amounting to ₱17,800.00 OnSeptember 15, 1999,
Ferdinand was transferred to St. Luke’s Medical Center in Quezon City, where he stayed until
September 25, 1999 and incurred medical expenses amounting to ₱66,243.25. He likewise spent
₱909.50 for medicines, ₱2,900.00 for scanning, ₱8,000.00 for doctor’s fee and ₱12,550.00 for the
services of his caregivers and masseur from September 12 to October 31, 1999. Ferdinand suffered
multiple facial injuries, a fracture of the inferior part of the right orbital wall and subdural hemorrhage
secondary to severe head trauma, as evidenced by the certification issued by Dr. Hernando L. Cruz,
Jr. of St. Luke’s Medical Center. Urbanita, received the amount of ₱50,000.00 from Reynaldo
Mariano by way of financial assistance, as evidenced by a receipt dated September 15, 1999. 2

Under its decision rendered on May 26, 2003 after trial, however, the RTC convicted the petitioner of
frustrated homicide,  to wit:
3
WHEREFORE, the foregoing considered, this Court hereby finds the accused Reynaldo Mariano
GUILTYfor the lesser offense of Frustrated Homicide under Article 249 of the Revised Penal Code in
relation to Article 50 thereof and is hereby sentenced to suffer the indeterminate penalty of three (3)
years and four (4) months of Prision Correccional as minimum to six (6) years and one (1) day of
Prision Mayor as maximum and is hereby directed to pay the complainant, Ferdinand de Leon, the
amount of ₱196,043.25 less ₱50,000.00 (already given) as actual damages, ₱100,000.00 as moral
damages, and the costs of the suit.

SO ORDERED. 4

On appeal, the CA promulgated itsassailed decision on June 29, 2006,  modifying the felony
5

committed by the petitioner from frustrated homicide to reckless imprudence resulting in serious
physical injuries, ruling thusly:

WHEREFORE, the Decision appealed from is MODIFIEDand accused-appellant Reynaldo Mariano

is found guilty of the crime of reckless imprudence resulting in serious physical injuries and is
sentenced to suffer the indeterminate penalty oftwo (2) months and one (1) day of arresto mayor, as
minimum, to one (1) year, seven (7) months and eleven (11) days of prision correccional, as
maximum, and to indemnify Ferdinand de Leon in the amount of ₱58,402.75 as actual damages and
₱10,000.00 as moral damages.

SO ORDERED. 6

In this appeal, the petitioner arguesthat his guilt for any crime was not proved beyond reasonable
doubt, and claims that Ferdinand’s injuries were the result of a mere accident. He insists that he
lacked criminal intent; that he was not negligent in driving his pick-up truck; and that the CA should
have appreciated voluntary surrender asa mitigating circumstance in his favor.

Ruling

We affirm the conviction of the petitioner for reckless imprudence resulting in serious physical
injuries.

The following findings by the CA compel us to affirm, to wit:

Reynaldo tried to show that he stopped his pick-up five (5) to six (6) meters behind the jeep of
Ferdinand, as he allowed an oncoming vehicle to pass. Thereafter, he overtook the jeep of
Ferdinand. However, the fact that Ferdinand’s body was thrown four (4) meters away from his jeep
showed that Reynaldo was driving his pick-up at a fast speed when he overtook the jeep of
Ferdinand. It is worthy to note that Reynaldo admitted that he has known Ferdinand and the latter’s
family since 1980 because they have a store where he used to buy things. As aptly observed by the
OSG, Reynaldo should have foreseen the possibilitythat Ferdinand would alight from his jeep and go
inside the house of his mother where the store is also located.

xxxx

As aptly observed by the court a quo, only a vehicle that is moving beyond the normal rate of speed
and within the control of the driver’s hands could have caused Ferdinand’s injuries. The very fact of
speeding is indicative of imprudent behavior, as a motorist must exercise ordinary care and drive at
a reasonable rate of speed commensurate with the conditions encountered, which will enable him or
her to keep the vehicle under control and avoid injury to others using the highway. As held in People
v. Garcia:

"A man must use common sense, and exercise due reflection in all his acts; it is his duty to be
cautious, careful, and prudent, if not frominstinct, then through fear of incurring punishment. He is
responsible for such results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his own person, rights and property, all
those of his fellow-beings, would ever be exposed to all manner of danger and injury."

Thus, had Reynaldo not driven his pick-up at a fast speed in overtaking the jeep of Ferdinand, he
could have easily stopped his pick-up or swerved farther to the left side of the road, as there was no
oncoming vehicle, when he saw that Ferdinand alighted from his jeep and lost his balance, in order
to avoid hitting the latter or, at least, minimizing his injuries.
7

The findings by the CA are controlling on the Court. Indeed, the findings of both lower courts on the
circumstances that had led to the injuries of Ferdinand fully converged except for the RTC’s
conclusion that malicious intent had attended the commission of the offense. Such findings cannot
be disturbed by the Court in this appellate review, for it is a well-settled rule that the findings of the
trial court, especially when affirmed by the CA, are binding and conclusive upon the Court. 8
"Reckless imprudence consists involuntary, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing of failing to perform such act, taking intoconsideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and
place."  To constitute the offense of reckless driving, the act must be something more than a mere
9

negligence in the operation of the motor vehicle, but a willful and wanton disregard of the
consequences is required.  The Prosecution must further show the direct causal connection
10

between the negligence and the injuries or damages complained of. In Manzanares v. People,  the 11

petitioner was found guilty of reckless imprudence resulting in multiple homicide and serious
physical injuries because of the finding that hehad driven the Isuzu truck very fast before it smashed
into a jeepney. In Pangonorom v. People,  a public utility driver driving his vehicle very fast was held
12

criminally negligent because he had not slowed down to avoid hitting a swerving car. In the absence
of any cogent reasons, therefore, the Court bows to the CA’s observations that the petitioner had
driven his pick-up truck at a fast speed in order to overtake the jeep of Ferdinand, and in so
attempting to overtake unavoidably hit Ferdinand, causing the latter’s injuries.

Contrary to the petitioner’s insistence, the mitigating circumstance of voluntary surrender cannot be
appreciated in his favor. Paragraph 5 of Article 365, Revised Penal Code, expressly states that in
the imposition of the penalties, the courts shall exercise their sound discretion, without regard to the
rules prescribed in Article 64 of the Revised Penal Code. "The rationale of the law," according to
People v. Medroso, Jr.: 13

x x x can be found in the fact thatin quasi-offenses penalized under Article 365, the carelessness,
imprudence or negligence which characterizes the wrongful act may vary from one situation to
another, in nature, extent, and resulting consequences, and in order that there may be a fair and just
application of the penalty, the courts must have ample discretion in its imposition, without being
bound by what We may call the mathematical formula provided for inArticle 64 of the Revised Penal
Code. On the basis of this particular provision, the trial court was not bound to apply paragraph 5 of
Article 64 in the instant case even if appellant had two mitigating circumstances in his favor with no
aggravating circumstance to offset them.

Even so, the CA erred in imposing on the petitioner the penalty for reckless imprudence resulting in
seriousphysical injuries.  The error should be avoided because no person should be condemned
1âwphi1

tosuffer a penalty that the law does not prescribe or provide for the offense charged or proved.
Verily, anyone judicially declared guiltyof any crime must be duly punished in accordance with the
law defining the crime and prescribing the punishment. Injustice would always result to the offender
should the penalty exceed that allowed by the law. The imposition of the correct penalty on the
offender is the essence ofdue process of law.

The penalty for the offender guilty ofreckless imprudence is based on the gravity of the resulting
injuries had his act been intentional. Thus, Article 365 of the Revised Penal Codestipulates that had
the act been intentional, and would constitute a grave felony, the offender shall suffer arresto mayor
in its maximum period to prision correccionalin its medium period; if it would have constituted a less
grave felony, arresto mayorin its minimum and medium periods shall be imposed; and if it would
have constituted a light felony, arresto menorin its maximum period shall be imposed. Pursuant to
Article 9 of the Revised Penal Code, a grave felony is that to which the law attaches the capital
punishment or a penalty that in any of its periods is afflictivein accordance with Article 25 of
theRevised Penal Code; a less grave felony is that which the law punishes with a penalty that is
correctionalin its maximum period in accordance with Article 25 of the Revised Penal Code; and a
light felony is an infraction of law for the commission of which a penalty of either arresto menoror a
fine not exceeding ₱200.00, or both is provided.

In turn, Article 25 of the Revised Penal Codeenumerates the principal afflictive penaltiesto be
reclusion perpetua, reclusion temporal, andprision mayor; the principal correctional penaltiesto
beprision correccional, arresto mayor, suspension and destierro; and the light penalties to be arresto
menorand fine not exceeding ₱200.00. Under this provision, death stands alone as the capital
punishment.

The Revised Penal Codeclassifies the felony of serious physical injuries based on the gravity ofthe
physical injuries, to wit:

Article 263. Serious physical injuries. — Any person who shall wound, beat, or assault another, shall
be guilty of the crime of serious physical injuries and shall suffer:

1. The penalty of prision mayor, if in consequence of the physical injuries inflicted, the injured
person shall become insane, imbecile, impotent, or blind;

2. The penalty of prision correccionalin its medium and maximum periods, if in consequence
ofthe physical injuries inflicted, the person injured shall have lost the use of speech or the
 power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall
have lost the use of any such member, or shall have become incapacitated for the work in
which he was therefor habitually engaged;

3. The penalty of prision correccionalin its minimum and medium periods, if in consequence
of the physical injuries inflicted, the person injured shall have become deformed, orshall
have lost any other part of his body, or shall have lost the use thereof, or shall have been ill
or incapacitated for the performance of the work in which he as habitually engaged for a
period of more than ninety days;

4. The penalty of arresto mayorin its maximum period to prision correccionalin its minimum
period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of
the injured person for more than thirty days.

If the offense shall have been committed against any of the persons enumerated in Article 246, or
with attendance of any of the circumstances mentioned in Article 248, the case covered by
subdivision number 1 of this Article shall be punished by reclusion temporalin its medium and
maximum periods; the case covered by subdivision number 2 by prision correccionalin its maximum
period to prision mayorin its minimum period; the case covered by subdivision number 3 by prision
correccional in its medium and maximum periods; and the case covered by subdivision number 4 by
prision correccionalin its minimum and medium periods.

The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict
physical injuries upon his child by excessive chastisement.

In its decision,  the CA found that Ferdinand had sustained multiple facial injuries, a fracture of the
14

inferior part of the right orbital wall, and subdural hemorrhage secondary to severehead trauma; that
he had become stuporous and disoriented as to time, place and person. It was also on record that
he had testified at the trial thathe was unable to attend to his general merchandise store for three
months due to temporary amnesia; and that he had required the attendance of caregivers and a
masseur until October 31, 1999.

With Ferdinand not becoming insane, imbecile, impotent, or blind, his physical injuries did not fall
under Article 263, 1, supra. Consequently, the CA incorrectly considered the petitioner’s act as a
grave felony had it been intentional, and should not have imposed the penalty at arresto mayorin its
maximum period to prision correccionalin its medium period. Instead, the petitioner’s act that caused
the serious physical injuries, had it been intentional, would be a less grave felonyunder Article 25 of
the Revised Penal Code, because Ferdinand’s physical injuries were those under Article 263, 3,
supra, for having incapacitated him from the performance of the work in which he was habitually
engaged in for more than 90 days.

Conformably with Article 365 of the Revised Penal Code, the proper penalty is arresto mayorin its
minimum and medium periods, which ranges from one to four months. As earlier mentioned, the
rules in Article 64 of the Revised Penal Codeare not applicable in reckless imprudence, and
considering further that the maximum term of imprisonment would not exceed one year, rendering
the Indeterminate Sentence Lawinapplicable,  the Court holds that the straight penalty of two
15

months of arresto mayorwas the correct penalty for the petitioner.

The Court agrees with the CA’s modification of the award of actual and moral damages amounting to
₱58,402.75 and ₱10,000.00, respectively.

Actual damages, to be recoverable, must not only be capable of proof, but must actually be proved
with a reasonable degree of certainty. This is because the courts cannot rely on speculation,
conjecture or guesswork in determining the fact and amount of damages. To justify an award of
actual damages, there must be competent proof of the actual loss suffered, which should be based
on the amounts actually expended by the victim,  or other competent proof. Here, the receipts
16

presented by the Prosecution proved the expenses actually incurred amounting to₱108,402.75, but
such aggregate was reduced by the victim’s earlier receipt of ₱50,000.00 from the petitioner in the
form of financial assistance. Hence, the victim should recover only the unpaid portion of ₱58,402.75.

Moral damages are given to ease the victim's grief and suffering. Moral damages should reasonably
approximate the extent of the hurt caused and the gravity of the wrong done.  Accordingly, the CA
17

properly reduced to ₱10,000.00 the moral damages awarded to Ferdinand. In addition, we impose
an interest of 6% per annum on the actual and moral damages reckoned from the finality of this
decision until the full payment of the obligation. This is because the damages thus fixed thereby
become a forbearance. The rate of 6% per annum is pursuant to Circular No. 799, series of 2013,
issued by the Office of the Governor of the Bangko Sentral ng Pilipinas on June 21, 2013, and the
pronouncement in Nacar v. Gallery Frames.  WHEREFORE, the Court AFFIRMS the decision
18

promulgated on June 29, 2006, subject to the modifications that: (a) the penalty to be imposed on
the petitioner shall be a straight penalty of two months of arresto mayor; and (b) the awards for
actual and moral damages shall earn 6% interest rate per annum commencing from the finality of
this decision until fully paid.

The petitioner shall pay the costs of suit.

SO ORDERED.

G.R. No. 210798, September 14, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BEVERLY VILLANUEVA Y

MANALILI @ BEBANG, Accused-Appellant.

DECISION

PEREZ, J.:

On appeal is the Decision1 dated 10 May 2013 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 05027. The CA affirmed the 28 January 2011 Decision2 of the Regional
Trial Court (RTC) of Las Pinas City, Branch 254 in Criminal Case No. 07-0417, finding
accused-appellant, Beverly Villanueva y Manalili, guilty beyond reasonable doubt of
violation of Section 6 of Republic Act (R.A.) No. 9208.

On 18 May 2007, an Information for the violation of Sec. 6 of R.A. 9208 was filed
against accused-appellant. The accusatory portion of the Information reads: ChanRoblesVirtualawlibrary

That sometime during the period from April 25, 2007 up to May 17, 2007, in the city of
Las Pinas, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, being the owner/manager of ON TAP VIDEOKE, did then and there
willfully, unlawfully and feloniously recruit and hire [AAA],3 a 13- year old minor, to
work as a Guest Relations Officer (GRO) of said establishment, thereby exploiting and
taking advantage of her vulnerability as a child.4 chanroblesvirtuallawlibrary

On arraignment, accused-appellant entered a plea of NOT GUILTY.5 A Petition for Bail

was granted and accused-appellant was allowed to post bail. The public prosecutor
manifested that they will adopt the evidence presented during the hearing of the
Petition for Bail as the same evidence in the main case, with the further manifestation
that other witnesses will be presented by the prosecution.6 Trial on the merits ensued
thereafter.

The Facts

The antecedent facts as culled from the CA decision and records of the case are
summarized as follows:

On 25 April 2007, AAA ran away from home after finding out that she was adopted
chanRoblesvirtualLawlibrary

and after being scolded by her mother, who became the private complainant in this
case. The friends of AAA informed private complainant that AAA was staying at the On
Tap Videoke Bar, working as a Guest Relations Officer. Private complainant sought
assistance from the Channel 2 TV program "XXX" to regain custody over AAA. Private
complainant, accompanied by the TV crew, lodged a preliminary complaint with the
Southern Police District (SPD) Headquarters of Taguig City against On Tap Videoke Bar
and a task force was created for the rescue of AAA. Police Officer 1 Ariel Sullano (PO1
Sullano), accompanied by private complainant was tasked to go inside the videoke bar
to talk to AAA. PO2 Thaddeus Abas (PO2 Abas) and the other police officers were
stationed outside the bar, awaiting the predetermined signal. After the operation, AAA
was taken to the SPD headquarters, together with accused-appellant and five (5) other
videoke bar employees who were without the necessary Mayor's and Health Permits.
Private complainant executed a complaint-affidavit against On Tap Videoke Bar and AAA
was endorsed to the Social Development Center of the Department of Social Welfare
and Development (DSWD)-Las Pinas. Accused-appellant and the five (5) apprehended
employees were booked, investigated and underwent medical examinations.

On 17 May 2007, accused-appellant and the five (5) employees were referred to the
inquest prosecutor with charges for violation of R.A. No. 76107 and working without
Mayor's/ Health Permit, respectively. The Office of the City Prosecutor charged accused-
appellant with human trafficking under R.A. 9208, instead of violation of R.A. 7610 for
the reason that accused-appellant "recruited and exploited AAA, a 13-year old minor, to
work as a GRO in her bar by taking advantage of her vulnerability as a child."8 chanrobleslaw

On 24 May 2007, a Petition for Bail was filed by accused-appellant, alleging that the
evidence of guilt was not strong. The prosecution presented the testimonies of PO2
Abas and the private complainant to prove otherwise.

Meanwhile, on 31 May 2007, an Affidavit of Desistance9 was executed by private

complainant, which formed part of the exhibits. The Affidavit of Desistance was
executed after the private complainant had the opportunity to talk to AAA after the
rescue operation and after AAA revealed that she was merely allowed to stay at the
videoke bar after she ran away from home.10 chanrobleslaw

PO2 Abas testified as to the filing of the complaint and the entrapment and rescue
operation conducted. He narrated that during the operation, he was stationed a couple
of blocks from the videoke bar;11 and that upon the execution of the pre-arranged
signal, he and his companion officers rushed to the bar to take custody of AAA and
other girls working without permits.12 On cross-examination, PO2 Abas admitted that he
was only acting based on the preliminary complaint filed by private complainant;13 and
that he was not aware of why AAA was in the viedoke bar or who had custody over
AAA.14 When asked about the other details of the investigation and the operation, he
failed to give coherent answers and insisted that his only designation was to secure the
GROs and the other persons in the videoke bar.15 chanrobleslaw

The prosecution then presented private complainant as the second  witness. She
recounted the details of the rescue operation and the subsequent filing of the complaint
against accused-appellant. On cross-examination, she clarified that she had never been
to the videoke bar before the rescue operation;16 and that when she saw her daughter
in the videoke bar, she was neither drinking, singing, nor smoking.17 When asked about
the conversation she had with her daughter after the rescue, private complainant
revealed that AAA claimed that she was neither hired nor recruited as a GRO at the
videoke bar.18 Private complainant further narrated that she signified her lack of
intention to pursue her complaint against accused-appellant after hearing the side of
her daughter.19 Unfortunately, while the trial was ongoing, AAA absconded from DSWD
custody, resulting in the prosecution's failure to obtain her testimony.

The Petition for Bail was granted by the court and accused-appellant was allowed to
post bail. To supplement the testimonies of the witnesses presented during the bail
hearing, the prosecution offered the testimony of P/Chief Insp. Jerome Balbontin (PCI
Balbontin). He narrated that on May 16, 2007, the private complainant, accompanied
by the TV crew, reported that her missing 13-year old daughter was seen working as a
GRO at the On Tap Videoke Bar.20 According to the witness, he was not present during
the operation21 but he sent SPO1 Camaliga, PO2 Andador, PO1 Sullano, PO2 Abas, PO2
Espinosa, among others, to conduct the surveillance and rescue.22 He further narrated
that after the rescue operation, the TV crew interviewed the child at the police
station;23  and that unfortunately, the footage of said interview and the rescue
operation could not be obtained.24chanrobleslaw

The defense presented Wilfred Aquino (Aquino), the videoke bar waiter, as first witness.
He testified as to the events which transpired during the rescue operation. He narrated
that two male individuals asked him to call AAA; that AAA approached their table to
speak with them; and that after five minutes, the policemen announced the rescue
operation.25  The witness insisted that accused-appellant was not aware of AAA's stay in
cralawred

the videoke bar because it was her father, Rosito Villanueva, Sr., who allowed AAA to
stay in the videoke bar.26 Wilfred also insisted that AAA has been staying in the videoke
bar for two weeks before the rescue operation; and that during such stay; she was
always in the kitchen helping therh wash glasses.27 On cross-examination, he testified
that his immediate superior was Rosito Villanueva, Jr., (Villanueva, Jr.) accused-
appellant's brother, who was the one managing the videoke bar.28 chanrobleslaw

Villanueva, Jr. was the second witness for the defense. He testified as to the
circumstances surrounding AAA's stay in the videoke bar. He claimed that while he was
on vacation, his father took over the management of the videoke bar and allowed the
temporary stay of AAA, upon the request of their employee.29 Like Aquino, Villanueva,
Jr. claimed that accused-appellant was unaware of AAA's stay in the videoke' bar
because accused-appellant had no hand in the daily operations and management. On
cross-examination, he testified that the videoke bar was merely registered under his
sister's name; and that all earnings belonged to him because the videoke bar was put
up by his sister for him.30 chanrobleslaw

Accused-appellant maintained that at the time the raid was conducted, she was at her
sister's house. Her brother called her to apprise her of the situation, prompting her to
rush to the bar to handle the situation. She went with the authorities to the SPD
Headquarters and presented herself as the registered owner of the videoke bar.
Accused-appellant vehemently denied hiring and/or recruiting AAA as a GRO, insisting
that she was not involved in the day-to-day operations. Asserting that she was unaware
that AAA was staying at the bar, accused-appellant explained that she merely provided
capital for the business and that her brother, Villanueva, Jr., was the one managing the
same. Both accused-appellant and her brother aver that it was their father who allowed
AAA to stay at the videoke bar upon the request of one of the waiters.

Ruling of the Regional Trial Court

The RTC found accused-appellant's denial unavailing and incredible, considering that
the corroborating testimonies came from witnesses who were not disinterested. The
court found it impossible for accused-appellant unaware of AAA's stay in the videoke
bar, given that she was the registered owner thereof. The RTC gave weight on the
successful rescue operation conducted by the police and the TV crew. In sum, the court
ruled that despite   the   failure   of the  prosecution  to   present  AAA   in  court,   the
circumstantial pieces of evidence were sufficient to establish accused-appellant's guilt
beyond reasonable doubt, for the reason that a direct link between accused-appellant's
commission of the crime and the minor victim was established.31 The dispositive portion
of the decision reads: ChanRoblesVirtualawlibrary

WHEREFORE, finding accused BEVERLY VILLANUEVA y MANALILI @ "BEBANG" GUILTY

of Qualified Trafficking in Persons under Section 6 of Republic Act 9208, the Court
hereby sentences her to suffer the penalty of Life Imprisonment and to pay a fine of 3
Million pesos. Her license/permit to operate the ON TAP VIDEOKE BAR is ordered
cancelled.32chanroblesvirtuallawlibrary

Ruling of the Court of Appeals

Accused-appellant challenged the RTC decision on appeal, alleging that the lower court
relied on the weakness of the defense rather than on the strength of the evidence for
the prosecution. Accused-appellant argued that the same set of evidence, which was
the basis for granting the petition for bail, was merely adopted in the main case. Thus,
accused-appellant contends that there can be no conclusion other than that the
prosecution failed to substantiate the allegations in the Information. Moreover,
accused-appellant insisted that the lower court erred in not giving the private
complainant's Affidavit of Desistance due weight and consideration.

The appellate court found the appeal bereft of merit. Enumerating the different
circumstantial evidence presented, the CA ruled that the conviction was warranted. The
appellate court held that the "[affidavit of desistance is] not the sole consideration that
can result to an acquittal"33 hence, in view of the lack of circumstances to support the
Affidavit of Desistance, acquittal was not warranted. The pertinent and dispositive
portions of the decision read: ChanRoblesVirtualawlibrary

Thus, the trial court did not err in imposing upon accused-appellant the penalty of life
imprisonment and fine of P3,000,000.00. The order for the cancellation of her permit to
operate the ON TAP VIDEOKE BAR is also correct, x x x
xxxx

WHEREFORE, the trial court's Decision dated January 28, 2011 is AFFIRMED.34 chanroblesvirtuallawlibrary

35
In a Resolution    dated 3 October 2013, the Court of Appeals gave due course to
accused-appellant's Notice of Appeal.

On   19 February 2014,36 we required the parties to submit their respective 

supplemental  briefs.   Accused-appellant  filed  a  supplemental brief;37 whereas the
Office of the Solicitor General adopted all the arguments raised in its brief, in lieu of
filing a supplemental brief.

Our Ruling

The crux of the controversy is whether the circumstantial pieces of evidence presented
by the prosecution inexorably lead to the conclusion that accused-appellant is guilty
beyond reasonable doubt of the crime of Qualified Trafficking. After a thorough review
of the facts and evidence on record, we rule for accused-appellant's acquittal.

Qualified Trafficking

The elements of trafficking in persons, derived from the expanded definition found in
Section 3(a) of R.A. No. 9208 as amended by R.A. No. 10364, are as follows: ChanRoblesVirtualawlibrary

(1)    The act of "recruitment, obtaining, hiring, providing, offering, transportation,

transfer, maintaining, harboring, or receipt of persons with or without the victim's
consent or knowledge, within or across national borders;"

(2)    The means used include "by means of threat, or use of force, or other forms of
coercion, abduction, fraud, deception, abuse of power or of position, taking advantage
of the vulnerability of the person, or, the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person;" and

(3)    The   purpose  of trafficking   includes  "the  exploitation  or  the prostitution of
others or other forms of sexual exploitation, forced labor or services, slavery, servitude
or the removal or sale of organs."
The recruitment, transportation, transfer, harboring or receipt of a child for the purpose
of exploitation shall still be considered "trafficking in persons" even if it does not involve
any of the means set forth in the first paragraph of Sec. 3(a) of R.A. No. 9208.38 Given
that the person allegedly trafficked in the case at bar is a child, we may do away with
discussions on whether or not the second element was actually proven.

In an attempt to prove the first element, the prosecution stresses the fact that
accused-appellant is the registered owner of the On Tap Videoke Bar. The prosecution
insists that by merely being the registered owner, accused-appellant necessarily
committed the act of recruiting, maintaining or harboring AAA. Such contention is
misplaced. Recruiting, harboring, or maintaining a person for the purpose of
exploitation are acts performed by persons who may or may not be registered owners
of establishments. Thus, being the registered owner per se does not make one
criminally liable for the acts of trafficking committed in the establishment. What the
prosecution should have done was to prove the act of trafficking by other means, and
not by mere showing that accused-appellant was the registered owner. The defense, on
the other hand, countered the allegation by presenting testimonies of Aquino, an
employee of the videoke bar; Villanueva, Jr., manager of the videoke bar and brother of
accused-appellant; and accused-appellant herself. The RTC found accused-appellant's
denial and the corroborating testimonies as unavailing and incredible, for the reason
that such testimonies did not come from disinterested witnesses. This Court is not
unaware of the longstanding doctrine that findings of facts and assessment of credibility
of witnesses are matters best left to the trial court, which is in the best position to
observe the witnesses' demeanor while being examined.39 However, we take exception
from such rule, considering that there are facts and circumstances which if properly
appreciated, could alter the outcome of the case. That the defense witnesses are closely
related to accused-appellant —one being the brother and manager of the videoke bar
and the other being an employee—is not a sufficient reason to disregard their
testimonies. The declaration of interested witnesses is not necessarily biased and
incredible.40 More importantly, there was no evidence suggesting that the testimonies of
the witnesses were untruthful to begin with.

The prosecution likewise failed to prove the third element—that the recruiting,
maintaining or harboring of persons is for the purpose of exploitation. Curiously, AAA
was seen by the prosecution witnesses at the videoke bar only on the day the rescue
operation was conducted. That AAA was exploited could not be proven by her mere
presence at the videoke bar during the rescue operation. The prosecution should have
presented evidence as to the nature of work done by AAA, if any. Testimonies as to
how often AAA was seen in the bar while entertaining customers could have also lent
credence to the prosecution's contention that she was in the videoke bar because she
was being exploited.

Lack of Direct Evidence

Since AAA was not presented in court, the prosecution was not able to offer direct
evidence showing that accused-appellant actually recruited, harbored or maintained
AAA in the videoke bar for the purpose of exploiting her. Neither can private
complainant's testimony which merely revolved around the filing of the complaint be
considered direct evidence. Private complainant's testimony, if considered in light of all
the other evidence, is weak. Private complainant testified roughly a month after the
Affidavit of Desistance was executed and filed; thus, she had every opportunity to deny
the execution of the Affidavit during the cross-examination. Instead of denying the
veracity of such Affidavit, private complainant confirmed its truthfulness and
accuracy.41 Though it can be said that private complainant's affirmative answers were
only prompted by the leading questions asked by the defense lawyer during cross-
examination, it cannot be denied that the prosecution did not even bother to rebuild its
case during re-direct examination. On re-direct examination, private complainant
merely testified as to matters regarding AAA's adoption.42 She also claimed that she
came to know of accused-appellant's trafficking activities through AAA's friends whose
identities she cannot remember.43 However, on re-cross examination, private
complainant admitted that she did not validate such information before she reached out
to the TV program and the authorities.44 chanrobleslaw

A review of the scarce jurisprudence on human trafficking would readily show that a
successful prosecution for human trafficking, to a certain extent, relies greatly on the
entrapment operation.45 In entrapment, ways and means are resorted to by the
authorities for the purpose of capturing the perpetrator in  flagrante delicto.46 Thus, it
can be said that testimonies of the apprehending officers regarding the entrapment
operation are crucial for a conviction, most especially in cases where the victim is
unable to testify. In People v. Casio,47 the conviction for Qualified Trafficking was
brought about by the categorical testimonies of the authorities who conducted the
entrapment, on top of the victim's testimony. In the said case, the police operatives
testified as to the actual unfolding of circumstances which led. them to believe that a
crime was being committed in flagrante delicto, to wit:
chanRoblesvirtualLawlibrary

During trial, PO1   Luardo and PO1 Velosa testified that their conversation with accused went
as follows:
chanRoblesvirtualLawlibrary

Accused: Chicks mo dongl (Do you like girls, guys?)

PO1 Unya mga bag-o? Kanang batan-on kay naa mi guests naghulal sa motel. (Are
Luardo: they new? They must be young because we have guests waiting at the motel)

Accused: Naa, hulal kay magkuha ko.    (Yes, just wait and I'll get them)

At that point, PO1 Luardo sent a text message to PSI Ylanan that they found prospective
subject.

After a few minutes, accused returned with AAA and BBB, private complainants in this case.

Accused: Kining duha kauyon mo anil? (Are you satisfied with these two?)

PO1 Maayo man na kaha na sila modala ug kayaf?(Well, are they good in sex?)
Veloso:

Similarly, the prosecution in the case at bar built their case around the entrapment
operation and the successful rescue of AAA; but unfortunately for the prosecution, both
PO2 Abas and PCI Balbontin are incompetent to testify as to matters which occurred
during the actual execution of the rescue and entrapment because both witnesses were
not present during the operation. The testimonies of PO2 Abas and the Chief Inspector
pale in comparison with the testimonies of the police operatives in Casio.48 Oddly, the
prosecution failed to present witnesses who could testify as to the actual conversation
that transpired between the undercover authorities and AAA. The testimony of defense
witness Aquino, the waiter, is the only evidence on record which narrated certain details
surrounding the unfolding of the rescue operation. Aquino merely observed that upon
being called by the two men, who turned out to be undercover policemen, AAA
approached their table and after five minutes, policemen announced the
operation.49 AAA's act of approaching the table of the customers after being called is
not unequivocal enough as to dispel any other possible scenarios that could have
occurred during their 5-minute conversation. In the absence of any evidence
categorically showing that a crime was being committed in flagrante delicto or that AAA
was performing the tasks of a GRO when she approached the table, this Court cannot
uphold accused-appellant's conviction based on the rescue operation alone.

Circumstantial evidence did not

establish guilt beyond reasonable doubt

While it is recognized that the lack of direct evidence does not ipso facto bar the finding
of guilt,50 we still hold that acquittal is in order for the reason that the circumstantial
evidence presented does not lead to the inescapable conclusion that accused-appellant
committed the crime. Circumstantial evidence is deemed sufficient for conviction only
if: (1) there is more than one circumstance; (2) the facts from which the inferences are
derived are proven; and (3) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.51 It is essential that the circumstantial
evidence presented constitutes an unbroken chain which leads to only one fair and
reasonable conclusion pointing to the accused, to the exclusion of others, as the guilty
person.52 The appellate court anchored accused-appellant's conviction on the following
circumstantial evidence:

Firstly, AAA was at the On Tap Videoke when the police, accompanied by private
chanRoblesvirtualLawlibrary

complainant and the crew of the TV program XXX, conducted its rescue operation on
May 16, 2007.

Secondly, while accused-appellant denied recruiting AAA, she was wearing a sexy attire
at the time of the rescue. Even defense witnesses  Rosito Villanueva, Jr. and Wilfred
Aquino admitted that AAA wore sexy attires at the videoke bar.
Notably, AAA's attire was similar to the uniform of the videoke bar's GROs. x x x

xxxx

Thirdly, accused-appellant showed propensity of hiring workers without permits.

Although the purpose of the rescue operation was to recover AAA, five other (5)
workers of the videoke bar were also arrested and booked because they were working
thereat without the requisite Mayor's /Health permits.

Fourthly, it appeared that AAA was doing some kind of work at the videoke bar. As
testified by defense witness Willfred Aquino and Rosito Villanueva, Jr.:
chanRoblesvirtualLawlibrary

Q:
What was she doing there aside from staying there, Mr. Witness?
chanRoblesvirtualLawlibrary

A:
She was helping in the washing of the glasses in the kitchen, Sir.
chanRoblesvirtualLawlibrary

xxxx
Q: When the police arrived, AAA was there inside the Videoke Bar?
chanRoblesvirtualLawlibrary

Witness:
chanRoblesvirtualLawlibrary

A: She was at the back of the kitchen.

chanRoblesvirtualLawlibrary

COURT:
chanRoblesvirtualLawlibrary

What  was  she  doing  at  the  kitchen wearing  that seductive dress, washing the
dishes?

A: No, your honor. During that times she was just standing at the back and
whenever we needed something like glass, she would hand us the glass.53
chanRoblesvirtualLawlibrary

We rule that the circumstantial evidence cited by the appellate court does not lead to
the inescapable conclusion that accused-appellant committed the crime, let alone that a
crime was actually committed. As previously mentioned, the mere presence of AAA at
the videoke bar does not prove that accused-appellant was maintaining or harboring
her for the purpose of exploitation. In fact, such was the holding of the RTC when it
granted accused-appellant's petition for bail. Nowhere in the text of R.A. No. 9208 can
it be inferred that a presumption arises by the mere fact of presence of a child in a
videoke bar or similar establishment. Our survey of jurisprudence likewise does not
reveal such established presumption. More to the point, the constitutive crime of
trafficking through harboring or receipt of a person must be specifically for purposes of
exploitation. In other words, establishing mere presence without establishing the
purpose therefor cannot be considered as an element of trafficking. In this case, the
private complainant's affidavit of desistance categorically explained the child's presence
in the videoke bar—for humanitarian reasons of providing shelter to a runaway minor.

That AAA was wearing skimpy clothing similar to those worn by the GROs at the
videoke bar during the rescue operation is not inconsistent with the defense's position
that AAA merely sought refuge and shelter at the bar after she ran away from home. It
is highly possible that AAA borrowed clothes from the videoke bar employees,
considering that she ran away from home and was unable to take all her belongings
with her. That accused-appellant showed propensity for hiring workers without permits
is irrelevant in the case at bar. One may be equipped with the proper permits and yet
still be guilty of trafficking. Accused-appellant's propensity for not following ordinances
does not necessarily prove commission of the crime of human trafficking. Lastly, even if
it be conceded that AAA was washing dishes at the back of the kitchen, such
circumstance is still not inconsistent with the defense's position. As a token of gratitude
for allowing her to temporarily stay at the bar, AAA could have voluntarily done the
chores. From the foregoing, it is obvious that the totality of circumstantial evidence will
not lead to an inescapable conclusion that accused-appellant committed the crime
charged. It bears stressing that "where the inculpatory facts and circumstances are
capable of two or more explanations, one of which is consistent with the innocence of
the accused and the other consistent with his guilt, then the evidence does not meet or
hurdle the test of moral certainty required for conviction."54
chanrobleslaw

Reproduction at trial of evidence

presented in the bail hearing

The prosecution manifested that they will adopt the evidence presented during the
hearing of the Petition for Bail as the same evidence in the main case, with a further
manifestation that other witnesses will be presented during the trial. In fact, a side by
side comparison of the RTC Order granting accused-appellant's petition for bail and the
RTC Decision convicting accused-appellant would reveal that summaries of witnesses'
testimonies contained in the former were merely lifted and copied verbatim in the
latter.

After an evaluation of the evidence and after hearing the testimonies of PO2 Abas and
private complainant, the Petition for Bail was granted by the RTC, to wit: ChanRoblesVirtualawlibrary

At this moment the prosecution failed to substantiate the allegations in the information
that accused recruited and hired minor [AAA] to work as Guest Relations Officer (GRO)
of her establishment, thereby exploiting and taking advantage of her vulnerability as a
child. The mere presence of the minor at the establishment, cannot by itself, prove the
fact of hiring and recruitment. It is unfortunate at this juncture, none of the prosecution
witnesses was able to testify on this regard, and was only able to confirm the minor's
presence at the videoke bar. Even the alleged mother of the minor testified that she
never saw [AAA] drinking, smoking or singing at the establishment. She further
testified that the minor admitted to her that she was never hired to work at the
establishment and the she was only there in order for her to have a place to stay and
reside.

xxx This court is bound by the principle that in all criminal cases, all doubts should be
resolved in favor of the accused, xxx From the evidence presented so far, without
touching on the actual merits and proceedings of the instant case, this court cannot at
this point say that the evidence against the accused is strong."55
It should be noted that when the prosecution witnesses were presented during the bail
hearing, they were subjected to cross, re-direct and re-cross-examinations, as well as
inquiries by the court; thus, as expected, the court no longer recalled the witnesses for
additional examination during the trial. Unfortunately for the prosecution, they were
only able to present one more witness, PCI Balbontin, before they finally rested their
case.

While the Court is aware that a bail hearing is merely for the purpose if determining
whether the evidence of guilt is strong and that the same is not an adjudication upon
the merits, we note that in the case at bar, the RTC Order granting the petition for bail
casts doubt upon accused-appellant's conviction. In its Order granting the petition for
bail, the RTC noted that none of the prosecution witnesses testified as to the fact of
hiring and recruitment. Considering that the only additional witness the prosecution
presented during trial was PCI Balbontin, it baffles this Court why the RTC found
accused-appellant guilty beyond reasonable doubt when the Chief Inspector's testimony
was limited to procedural details regarding the filing of the complaint, forming of the
task force and the interview conducted by the TV crew. If the Chief Inspector's
additional testimony was only limited to those matters, it follows that when the
prosecution rested its case, not one of their witnesses testified as to the fact of hiring
and recruitment and neither did the documentary evidence submitted establish the
same. Before this Court is essentially the same set of evidence that was evaluated by
the RTC when it ruled that the evidence of guilt was not strong; we thus see no reason
why the same set of evidence, only supplemented by a testimony regarding irrelevant
procedural matters, would warrant a finding of guilt beyond reasonable doubt.

Ei incumbit probatio qui elicit,

non qui negat -- he who asserts,
not he who denies, must prove

Nothing is more settled in criminal law jurisprudence than that the Constitution
presumes a person is innocent until he is proven guilty by proof beyond reasonable
doubt.56 Countless times, this Court has elucidated that the evidence of the prosecution
must stand on its own weight and not rely on the weakness of the defense. The
prosecution cannot be allowed to draw strength from the weakness of the defense's
evidence for it has the onus probandi in establishing the guilt of the accused. In this
case, the circumstantial evidence presented by the prosecution failed to pass the test of
moral certainty necessary to warrant accused-appellant's conviction. From the
foregoing, we rule that the prosecution failed to discharge its burden of proving
accused-appellant's guilt beyond reasonable doubt.

WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals dated 10
May 2013 in CA-G.R. CR-H.C. No. 05027 is hereby REVERSED and SET ASIDE. For
failure of the prosecution to prove her guilt beyond reasonable doubt, BEVERLY
VILLANUEVA y MANALILI @ BEBANG is hereby ACQUITTED of the charge of violation
of Section 6 of Republic Act No. 9208 or Qualified Trafficking. Her immediate RELEASE
from detention is hereby ORDERED, unless she is being held for another lawful cause.

Let a copy of this Decision be furnished the Director of the Correctional Institution for
Women, Mandaluyong City, by personal service, for immediate implementation. The
Director shall submit to this Court, within five (5) days from receipt of the copy of the
Decision, the jaction taken thereon.

Carpio,*J., Velasco, Jr., (Chairperson), Del Castillo,  ** and Reyes, JJ.,  concur.

ORDER OF RELEASE

TO:   The Director

Bureau of Corrections
 
1770 Muntinlupa City
     
  Thru: Superintendent
    CORRECTIONAL INSTITUTION FOR WOMEN
    1550 Mandaluyong City

GREETINGS:

WHEREAS,    the    Supreme    Court    on    September    14,    2016 promulgated

chanRoblesvirtualLawlibrary

a Decision in the above-entitled case, the dispositive portion of which reads: ChanRoblesVirtualawlibrary

"WHEREFORE,    the    appeal    is    GRANTED.    The  Decision of the Court of

Appeals dated 10 May 2013 in CA-G.R. CR-H.C. No. 05027 is
hereby REVERSED and SET ASIDE. For failure of the prosecution to prove her guilt
beyond breasonable doubt, BEVERLY VILLANUEVA y MANALILI @ BEBANG is
hereby ACQUITTED of the charge of violation of Section 6 of Republic Act No. 9208 or
Qualified Trafficking. Her    immediate    RELEASE    from    detention is   
hereby ORDERED, unless she is being held for another lawful cause.

Let a copy of this Decision be furnished the Director of the Correctional Institution for
Women, Mandaluyong City, by personal service, for immediate implementation. The
Director shall submit to this Court, within five (5) days from receipt of the copy of the
Decision, the action taken thereon.

SO ORDERED."
NOW, THEREFORE, You are hereby ordered to immediately release BEVERLY
VILLANUEVA y MANALILI @ BEBANG unless there are other causes for which she
should be further detained, and to return this Order with the certificate of your
proceedings within five (5) days from notice hereof.

GIVEN  by  the  Honorable  PRESBITERO  J.  VELASCO,  JR., Chairperson of the

Third Division of the Supreme Court of the Philippines, this 14th day of September
2016.

Very truly yours,

(SGD)WILFREDO V. LAPITAN
Division Clerk of Court

                                        By:
(SDG)MISAEL DOMINGO C. BATTUNG III
Deputy Division Clerk of Court

G.R. No. 207950               September 22, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,

vs.
MARK JASON CHAVEZ y BITANCOR alias "NOY", Accused-appellant.

DECISION

LEONEN, J.:

Every conviction for any crime must be accompanied by the required moral certainty that the
accused has committed the offense charged beyond reasonable doubt. The prosecution must prove
"the offender's intent to take personal property before the killing, regardless of the time when the
homicide [was] actually carried out"  !n order to convict for the crime of robbery with homicide. The
1

accused may nevertheless be convi·cted of the separate crime of homicide once the prosecution
establishes beyond reasonable doubt the accused's culpability for the victim's death.

In the information dated November 8, 2006, Mark Jason Chavez y Bitancor (Chavez) was charged
with the crime of robbery with homicide:

That on or about October 28, 2006, in the City of Manila, Philippines, the said accused, did then and
there wilfully, unlawfully and feloniously, with intent of gain and means of force, violence and
intimidation upon the person of ELMER DUQUE y OROS, by then and there, with intent to kill,
stabbing the latter repeatedly with a kitchen knife, thereby inflicting upon him mortal stab wounds
which were the direct and immediate cause of his death thereafter, and on the saidoccasion or by
reason thereof, accused took, robbed and carried away the following:

One (1) Unit Nokia Cellphone

One (1) Unit Motorola Cellphone

Six (6) pcs. Ladies Ring

Two (2) pcs. Necklace

One (1) pc. Bracelet All of undetermined value and undetermined amount of money, all belonging to
said ELMER DUQUE y OROS @ BARBIE to the damage and prejudice of the said owner/or his
heirs, in the said undetermined amount in Philippines currency.

Contrary to law. 2

Chavez pleaded not guilty during his arraignment on December 4, 2006. The court proceeded to
trial. The prosecution presented Angelo Peñamante (Peñamante), P/Chief Inspector Sonia Cayrel
(PCI Cayrel), SPO3 Steve Casimiro (SPO3 Casimiro), Dr. Romeo T. Salen (Dr. Salen), and
Raymund Senofa as witnesses. On the other hand, the defense presented Chavez as its sole
witness.3
The facts as found by the lower court are as follows.

On October 28, 2006, Peñamante arrived home at around 2:45 a.m., coming from work as a janitor
in Eastwood City.  When he was about to go inside his house at 1326 Tuazon Street, Sampaloc,
4

Manila, he saw a person wearing a black, long-sleeved shirt and black pants and holding something
while leaving the house/parlor of Elmer Duque (Barbie) at 1325 Tuazon Street, Sampaloc, Manila,
just six meters across Peñamante’s house. 5

There was a light at the left side of the house/parlor of Barbie, his favorite haircutter, so Peñamante
stated that he was able to see the face of Chavez and the clothes he was wearing. 6

Chavez could not close the door of Barbie’s house/parlor so he simply walked away. However, he
dropped something that he was holding and fell down when he stepped on it.  He walked away after,
7

and Peñamante was not able to determine what Chavez was holding.  Peñamante then entered his
8

house and went to bed. 9

Sometime after 10:00 a.m., the Scene of the Crime Office (SOCO) team arrived, led by PCI Cayrel.
She was joined by PO3 Rex Maglansi (photographer), PO1 Joel Pelayo (sketcher), and a fingerprint
technician.  They conducted an initial survey of the crime scene after coordinating with SPO3
10

Casimiro of the Manila Police District Homicide Section. 11

The team noted that the lobby and the parlor were in disarray, and they found Barbie’s dead body
inside.  They took photographs and collected fingerprints and other pieces of evidence such as the
12

155 pieces of hair strands found clutched in Barbie’s left hand.  They documented the evidence then
13

turned them over to the Western Police District Chemistry Division. Dr. Salen was called to conduct
an autopsy on the body. 14

At around 11:00 a.m., Peñamante’s landlady woke him up and told him that Barbie was found dead
at 9:00 a.m. He then informed his landlady that he saw Chavez leaving Barbie’s house at 2:45 a.m. 15

At around 1:00 p.m., Dr. Salen conducted an autopsy on the body and found that the time of death
was approximately 12 hours prior to examination.  There were 22 injuries on Barbie’s body — 21
16

were stab wounds in various parts of the body caused by a sharp bladed instrument, and one
incised wound was caused by a sharp object.  Four (4) of the stab wounds were considered fatal.
17 18

The next day, the police invited Peñamante to the Manila Police Station to give a statement.
Peñamante described to SPO3 Casimiro the physical appearance of the person he saw leaving
Barbie’s parlor.19

Accompanied by his mother, Chavez voluntarily surrendered on November 5, 2006 to SPO3

Casimiro at the police station.  Chavez was then 22 years old.  His mother told the police that she
20 21

wanted to help her son who might be involved in Barbie’s death. 22

SPO3 Casimiro informed them ofthe consequences in executing a written statement without the
assistance of a lawyer. However, Chavez’s mother still gave her statement, subscribed by
Administrative Officer Alex Francisco.  She also surrendered two cellular phones owned by Barbie
23

and a baseball cap owned by Chavez. 24

The next day, Peñamante was again summoned by SPO3 Casimiro to identify from a line-up the
person he saw leaving Barbie’s house/parlor that early morning of October 28, 2006.  Peñamante 25

immediately pointed to and identified Chavez and thereafter executed his written statement.  There 26

were no issues raised in relation to the line-up.

On the other hand, Chavez explained that he was athome on October 27, 2006, exchanging text
messages withBarbie on whether they could talk regarding their misunderstanding.  According to
27

Chavez, Barbie suspected that he was having a relationship with Barbie’s boyfriend, Maki.  When 28

Barbie did not reply to his text message, Chavez decided to go to Barbie’s house at around 1:00
a.m. of October 28, 2006.  Barbie allowed him to enter the house, and he went home after.
29 30

On August 19, 2011, the trial court  found Chavez guilty beyond reasonable doubt of the crime of
31

robbery with homicide:

WHEREFORE, in view of the foregoing, this Court finds accused MARK JASON CHAVEZ y
BITANCOR @ NOY GUILTY beyond reasonable doubt of the crime of Robbery with Homicideand
hereby sentences him to suffer the penaltyof reclusion perpetua without eligibility for parole.

Further, he is ordered to pay tothe heirs of the victim, Elmer Duque y Oros the sum of 75,000.00 as
death indemnity and another ₱75,000 for moral damages.
SO ORDERED. 32

On February 27, 2013, the Court of Appeals  affirmed the trial court’s decision.  Chavez then filed a
33 34

notice of appeal pursuant to Rule 124, Section 13(c) of the Revised Rules of Criminal Procedure, as
amended, elevating the case with this court. 35

This court notified the parties tosimultaneously submit supplemental briefs if they so desire. Both
parties filed manifestationsthat they would merely adopt their briefs before the Court of Appeals. 36

In his brief, Chavez raised presumption of innocence, considering that the trial court "overlooked and
misapplied some facts of substance that could have altered its verdict."  He argued that since the
37

prosecution relied on purely circumstantial evidence, conviction must rest on a moral certainty of
guilt on the part of Chavez.  In this case, even if Peñamante saw him leaving Barbie’s house,
38

Peñamante did not specify whether Chavez was acting suspiciously at that time. 39

As regards his mother’s statement,Chavez argued its inadmissibility as evidence since his mother
was not presented before the court to give the defense an opportunity for cross-examination.  He 40

added that affidavits are generally rejected as hearsay unless the affiant appears before the court
and testifies on it. 41

Chavez argued that based on Dr. Salen’s findings, Barbie’s wounds were caused by two sharp
bladed instruments, thus, it was possible that there were two assailants.  It was also possible that
42

the assailants committed the crime after Chavez had left Barbie’s house.  Given that many possible
43

explanations fit the facts,that which is consistent with the innocence of Chavez should be favored. 44

On the other hand, plaintiff-appellee argued that direct evidence is not indispensable when the
prosecution isestablishing guilt beyond reasonable doubt of Chavez.  The circumstantial evidence
45

presented before the trial court laid down an unbroken chain of events leading to no other conclusion
than Chavez’s acts of killing and robbing Barbie. 46

On the argument made by Chavez that his mother’s statement was inadmissible as hearsay,
plaintiff-appellee explained that the trial court did not rely on, and did not even refer to, any of the
statements made by Chavez’s mother. 47

Finally, insofar as Chavez’s submission that Dr. Salen testified on the possibility that there weretwo
assailants, Dr. Salen equally testified on the possibility that there was only one.  The sole issue now
48

before us iswhether Chavez is guilty beyond reasonable doubt of the crime of robbery with homicide.

We reverse the decisions of the lower courts, but find Chavez guilty of the crime of homicide.

Chavez was found guilty of the specialcomplex crime of robbery with homicide under the Revised
Penal Code:

Art. 294. Robbery with violence against or intimidation of persons – Penalties. – Any person guilty of
robberywith the use of violence against or intimidation of any person shall suffer:

1) The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the
crime of homicide shall have been committed. . . . 49

Chavez invokes his constitutional right to be presumed innocent, especially since the prosecution’s
evidence is purely circumstantial and a conviction must stand on a moral certainty of guilt. 50

The Rules of Court expressly provides that circumstantial evidence may be sufficient to establish
guilt beyond reasonable doubt for the conviction of an accused:

SEC. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for

conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. 51
The lower courts found that the circumstantial evidence laid down by the prosecution led to no other
conclusion than the commission by Chavez of the crime charged:

In the instant case, while there is no direct evidence showing that the accused robbed and fatally
stabbed the victim to death, nonetheless, the Court believes that the following circumstances form a
solid and unbroken chain of events that leads to the conclusion, beyond reasonable doubt, that
accused Mark Jason Chavez y Bitancor @ Noy committed the crime charged, vi[z]: first, it has been
duly established, as the accused himself admits, that he went to the parlor of the victim at around
1:00 o’clock in the morning of 28 October 2006 and the accused was allowed by the victim to get
inside his parlor as it serves as his residence too; second, the victim’s two (2) units of cellular
phones (one red Nokia with model 3310 and the other one is a black Motorola) without sim cards
and batteries, which were declared as partof the missing personal belongings of the victim, were
handled to SPO3 Steve Casimiro by the mother of the accused, Anjanette C. Tobias on 05
November 2006 when the accused voluntarily surrendered, accompanied by his mother, at the
police station: third, on 28 October 2006 at about 2:45 o’clock in the morning, witness Angelo
Peñamante, who arrived from his work, saw a person holding and/or carrying something and about
toget out of the door of the house of the victim located at 1325 G. Tuazon Street, Sampaloc, Manila,
and trying to close the door but the said person was not able to successfully do so. He later
positively identified the said person at the police station as MARK JASON CHAVEZ y BITANCOR @
NOY, the accused herein; and finally, the time when the accused decided on 27 October 2006 to
patch up things with the victim and the circumstances (Dr. Salen’s testimony that the body of the
victim was dead for more or less twelve (12) hours) when the latter was discovered fatally killed on
28 October 2006 is not a co-incidence.

The prosecution has equally established, based on the same circumstantial evidence, that the
accused had indeed killed the victim. 52

Factual findings by the trial court on its appreciation of evidence presented by the parties, and even
its conclusions derived from the findings, are generally given great respect and conclusive effect by
this court, more so when these factual findings are affirmed by the Court of Appeals. 53

Nevertheless, this court has held that "[w]hat is imperative and essential for a conviction for the
crime of robbery with homicide is for the prosecution to establish the offender’s intent to take
personal property before the killing, regardless of the time when the homicide is actually carried
out."  In cases when the prosecution failed to conclusively prove that homicide was committed for
54

the purpose of robbing the victim, no accused can be convicted of robbery with homicide. 55

The circumstantial evidence relied on by the lower courts, as quoted previously, do not satisfactorily
establish an original criminal design by Chavez to commit robbery.

At most, the intent to take personal property was mentioned by Chavez’s mother in her statement as
follows:

Na si Noy na aking anak ay nagtapat sa akin tungkol sa kanyang kinalaman sa pagkamatay ni

Barbie at kasabay ang pagbigay sa akin ng dalawang (2) piraso ng cellular phones na pag/aari [sic]
ni Barbie na kanyang kinuha pagka/tapos [sic] ng insidente.

Na ipinagtapat din sa akin ni Noy na ang ginamit na panaksak na isang kutsilyo na gamit namin
sabahay ay inihulog niya sa manhole sa tapat ng aming bahay matapos ang insidente.

At ang isang piraso ng kwintas na kinuha rin nya mula kay Barbie ay naisanla niya sa isang
sanglaan sa Quezon City.

Na ang suot niyang tsinelas ay nag/iwan [sic] ng bakas sa pinangyarihan ng insidente. At sya rin ang
nakasugat sa kanyang sariling kamay ng [sic] maganap ang insidente.

Na sinabi niya sa akin na wala siyang intensyon na patayin [sic] si Barbie kundi ay pagnakawan
lamang.  (Emphasis supplied)
56

However, this statement is considered as hearsay, with no evidentiary value, since Chavez’s mother
was never presented as a witness during trial to testify on her statement. 57

An original criminal design to take personal property is also inconsistent with the infliction of no less
than 21 stab wounds in various parts of Barbie’s body. 58

The number of stab wounds inflicted on a victim has been used by this court in its determination of
the nature and circumstances of the crime committed.
This may show an intention to ensure the death of the victim. In a case where the victim sustained a
total of 36 stab wounds in his front and back, this court noted that "this number of stab wounds
inflicted on the victim is a strong indication that appellants made sure of the success of their effort to
kill the victim without risk to themselves." 59

This court has also looked into the number and gravity of the wounds sustained by the victim as
indicative ofthe accused’s intention to kill the victim and not merely to defend himself or others. 60

In the special complex crime of robbery with homicide, homicide is committed in order "(a) to
facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the
loot; (c) to prevent discovery of the commission of the robbery; or (d) to eliminate witnesses to the
commission of the crime."  21 stab wounds would be overkill for these purposes. The sheer number
61

of stab wounds inflicted on Barbie makes it difficult to conclude an original criminal intent of merely
taking Barbie’s personal property.

In People v. Sanchez,  this court found accused-appellant liable for the separate crimes of homicide
62

and theft for failure of the prosecution to conclusively prove that homicide was committed for the
purpose of robbing the victim:

But from the record of this case, we find that the prosecution palpably failed to substantiate its
allegations of the presence of criminal design to commit robbery, independent ofthe intent to commit
homicide. There is no evidence showing that the death of the victim occurred by reason or on the
occasion of the robbery. The prosecution was silent on accused-appellant’s primary criminal intent.
Did he intend to kill the victim in order to steal the cash and the necklace? Or did he intend only to
kill the victim, the taking of the latter’s personal property being merely an afterthought? Where the
homicide is notconclusively shown to have been committed for the purpose of robbing the victim, or
where the robbery was not proven at all, there can be no conviction for robo con homicidio. 63

II

This court finds that the prosecution proved beyond reasonable doubt the guilt of Chavez for the
separate crime of homicide.

First, the alibi of Chavez still placeshim at the scene of the crime that early morning of October 28,
2006.

The victim, Elmer Duque, went by the nickname, Barbie, and he had a boyfriend named Maki.
Nevertheless, Chavez described his friendship with Barbie to be "[w]e’re like brothers."  He testified
64

during cross-examination that he was a frequent visitor at Barbie’s parlor that he cannot recall how
many times he had been there.  This speaks of a close relationship between Chavez and Barbie.
65

Chavez testified that he went to Barbie’s house at 1:00 in the morning of October 28, 2006 to settle
his misunderstanding with Barbie who suspected him of having a relationship with Barbie’s
boyfriend:

MARK JASON CHAVEZ was a friend to the victim, Barbie, for almost three (3) years and the two (2)
treated each other like brothers. The latter, however, suspected Mark Jason of having a relationship
with Maki Añover, Barbie’s boyfriend for six (6) months, which resulted in a misunderstanding
between them. Mark Jason tried to patch things up with Barbie so thru a text message he sent on
the evening of 27 October 2006, he asked if they could talk. When Barbie did not reply, he decided
to visit him at his parlor at around 1:00 o’clock in the morning. Barbie let him in and they tried to talk
about the situation between them. Their rift, however, was not fixed so he decided to gohome. Later
on, he learned that Barbie was already dead. 66

This court has considered motive as one of the factors in determining the presence of an intent to
kill,  and a confrontation with the victim immediately prior to the victim’sdeath has been considered
67

as circumstantial evidence for homicide. 68

Second, the number of stab wounds inflicted on Barbie strengthens an intention to kill and ensures
his death.The prosecution proved that there was a total of 22 stab wounds found indifferent parts of
Barbie’s body and that a kitchen knife was found in a manhole near Chavez’s house at No. 536, 5th
Street, San Beda, San Miguel, Manila. 69

The Court of Appeals’ recitation of facts quoted the statement of Chavez’s mother. This provides,
among others, her son’s confession for stabbing Barbie and throwing the knife used in a manhole
near their house:
Na si Noy na aking anak ay nagtapat sa akin tungkol sa kanyang kinalaman sa pagkamatay ni
Barbie at kasabay ang pagbigay sa akin ng dalawang (2) piraso ng cellular phones na pag/aari [sic]
ni Barbie na kanyang kinuha pagka/tapos [sic] ng insidente.

Na ipinagtapat din sa akin ni Noy na ang ginamit na panaksak na isang kutsilyo na gamit namin sa
bahay ay inihulog niya sa manhole sa tapat ng aming bahay matapos ang insidente.

At ang isang piraso ng kwintas nakinuha rin nya mula kay Barbie ay naisanla niya sa isang sanglaan
sa Quezon City.

Na ang suot niyang tsinelas ay nag/iwan [sic] ng bakas sa pinangyarihan ng insidente. At sya rin ang
nakasugat sa kanyang sariling kamay ng [sic] maganap ang insidente.

Na sinabi niya sa akin na wala siyang intensyon na patayin [sic] si Barbie kundi ay pagnakawan
lamang.  (Emphasis supplied)
70

Even if this statement was not taken into account for being hearsay, further investigation conducted
still led tothe unearthing of the kitchen knife with a hair strand from a manhole near Chavez’s
house. 71

Third, no reason exists to disturb the lower court’s factual findings giving credence to 1)
Peñamante’s positive identification of Chavez as the person leaving Barbie’s house that early
morning of October 28, 2006  and 2) the medico-legal’s testimony establishing Barbie’s time of
72

death as 12 hours prior to autopsy at 1:00 p.m., thus, narrowing the time of death to approximately
1:00 a.m. of the same day, October 28, 2006. 73

All these circumstances taken together establish Chavez’s guilt beyond reasonable doubt for the
crime of homicide.

III

There is a disputable presumption that "a person found in possession of a thing taken in the doing of
a recent wrongful act is the taker and the doer of the whole act; otherwise, thatthing which a person
possesses, or exercises acts of ownership over, are owned by him."  Thus, when a person has
74

possession of a stolen property, hecan be disputably presumed as the author of the theft. 75

Barbie’s missing cellular phones were turned over to the police by Chavez’s mother, and this was
never denied by the defense.  Chavez failed to explain his possession of these cellular
76

phones.  The Court of Appeals discussed that "a cellular phone has become a necessary accessory,
77

no person would part with the same for a long period of time, especially in this case as it involves an
expensive cellular phone unit, as testified by Barbie’s kababayan, witness Raymond Seno[f]a." 78

However, with Chavez and Barbie’s close relationship having been established, there is still a
possibilitythat these cellphones were lent to Chavez by Barbie.

The integrity of these cellphones was also compromised when SPO3 Casimiro testified during cross-
examination that the police made no markings on the cellphones, and their SIM cards were
removed.

Q: But you did not place any marking on the cellphone, Mr. witness?

A: No, sir.

Atty. Villanueva: No further questions, Your Honor.

Court: When you received the items,there were no markings also?

Witness: No, Your Honor.

Court: The cellular phones, were they complete with the sim cards and the batteries?

A: There’s no sim card, Your Honor.

Q; No sim card and batteries?

A; Yes, Your Honor.

Q: No markings when you receivedand you did not place markings when these were turned over to
the Public Prosecutor, no markings?

A: No markings, Your Honor. 79

The other missing items were no longer found, and no evidence was presented to conclude that
these weretaken by Chavez. The statement of Chavez’s mother mentioned that her son pawned one
of Barbie’s necklaces ["At ang isang piraso ng kwintas na kinuha rin nya mula kay Barbie ay
naisanla niya sa isang sanglaan sa Quezon City"  ], but, as earlier discussed, this statement is mere
80

hearsay.

In any case, the penalty for the crime of theft is based on the value of the stolen items.  The lower
81

court made no factual findings on the value of the missing items enumerated in the information —
one Nokia cellphone unit, one Motorola cellphone unit, six pieces ladies ring, two pieces necklace,
and one bracelet.

At most, prosecution witness Raymund Senofa, a town mate of Barbie, testified that he could not
remember the model of the Motorola fliptype cellphone he saw used by Barbie but that he knew it
was worth 19,000.00 more or less.  This amounts to hearsay as he has no personal knowledge on
82

how Barbie acquired the cellphone or for how much.

These circumstances create reasonable doubt on the allegation that Chavez stole the missing
personal properties of Barbie.

It is contrary to human nature for a mother to voluntarily surrender her own son and confess that her
son committed a heinous crime.

Chavez was 22 years old, no longer a minor, when he voluntarily went to the police station on
November 5, 2006 for investigation,  and his mother accompanied him. SPO3 Casimiro testified that
83

the reason she surrendered Chavez was because "she wanted to help her son"  and "perhaps the
84

accused felt that [the investigating police] are getting nearer to him."  Nevertheless, during cross-
85

examination, SPO3 Casimiro testified:

Q: Regarding the mother, Mr. witness, did I get you right that when the mother brought her son,
according to you she tried to help her son, is that correct?

A: That is the word I remember, sir.

Q: Of course, said help you do notknow exactly what she meant by that?

A: Yes, sir.

Q: It could mean that she is trying to help her son to be cleared from this alleged crime, Mr. witness?

A: Maybe, sir. 86

Chavez’s mother "turned-over (2) units of Cellular-phones and averred that her son Mark Jason told
her that said cellphones belong[ed] to victim Barbie. . . [that] NOY was wounded in the incident and
that the fatal weapon was put in a manhole infront[sic] of their residence."  The records are silent on
87

whether Chavez objected to his mother’s statements. The records also do not show why the police
proceeded to get his mother’s testimony as opposed to getting Chavez’s testimony on his voluntary
surrender.

At most, the lower court found thatChavez’s mother was informed by the investigating officer at the
police station of the consequences in executing a written statement withoutthe assistance of a
lawyer.  She proceeded to give her statement dated November 7, 2006 on her son’s confession of
88

the crime despite the warning.  SPO3 Casimiro testified during his cross-examination:
89

Q: Do you remember if anybody assisted this Anjanette Tobias when she executed this Affidavit you
mentioned?

A: She was with some neighbors.

Atty. Villanueva

Q: How about a lawyer, Mr. Witness?

A: None, sir.
Q: So, in other words, no lawyer informed her of the consequence of her act of executing an
Affidavit?

A: We somehow informed her of what will be the consequences of that statement, sir.

Q: So, you and your police officer colleague at the time?

A: Yes, sir. 90

The booking sheet and arrest report states that "when [the accused was] appraised [sic] of his
constitutional rights and nature of charges imputed against him, accused opted to remain
silent."  This booking sheet and arrest report is also dated November 7, 2006, or two days after
91

Chavez, accompanied by his mother, had voluntarily gone to the police station.

The right to counsel upon being questioned for the commission of a crime is part of the Miranda
rights, which require that:

. . . (a) any person under custodial investigation has the right to remain silent; (b) anything he says
can and will be used against him in a court of law; (c) he has the right totalk to an attorney before
being questioned and to have his counsel present when being questioned; and (d) if he cannot
afford an attorney, one will be provided before any questioning if he so desires. 92

The Miranda rightswere incorporated in our Constitution but were modified to include the statement
thatany waiver of the right to counsel must be made "in writing and in the presence of counsel." 93

The invocation of these rights applies during custodial investigation, which begins "when the police
investigation is no longer a general inquiry into an unsolved crime but has begun tofocus on a
particular suspect taken into custody by the police who starts the interrogation and propounds
questions to the person to elicit incriminating statements." 94

It may appear that the Miranda rightsonly apply when one is "taken into custody by the police," such
as during an arrest. These rights are intended to protect ordinary citizens from the pressures of a
custodial setting:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or
trick captive suspects into confessing, to relieve the "inherently compelling pressures" "generated by
the custodial setting itself," "which work to undermine the individual’s will to resist," and as much as
possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact,
whether particular confessions were voluntary. Those purposes are implicated as much by in-
custody questioning of persons suspected of misdemeanours as they are by questioning of persons
suspected of felonies.  (Emphasis supplied)
95

Republic Act No. 7438  expanded the definition of custodial investigation to "include the practice
96

ofissuing an ‘invitation’ to a person who is investigated in connection with an offense he is suspected

to have committed, without prejudice to the liability of the ‘inviting’ officer for any violation of law."97

This means that even those who voluntarily surrendered before a police officer must be apprised of
their Miranda rights. For one, the same pressures of a custodial setting exist in this scenario. Chavez
is also being questioned by an investigating officer ina police station. As an additional pressure, he
may have been compelled to surrender by his mother who accompanied him to the police station.

This court, thus, finds that the circumstantial evidence sufficiently proves beyond reasonable doubt
that Chavez is guilty of the crime of homicide, and not the special complex crime of robbery with
homicide.

On the service of Chavez’s sentence, the trial court issued the order dated November 14, 2006 in
that "as prayed for, the said police officer is hereby ordered to immediately commit accused, Mark
Jason Chavez y Bitancor @ Noy to the Manila City Jail and shall be detained thereat pending trial of
this case and/or untilfurther orders from this court."  The order of commitment dated September 28,
98

2011 was issued after his trial court conviction in the decision dated August 19, 2011.

Chavez has been under preventive detention since November 14, 2006, during the pendency of the
trial.  This period may be credited in the service of his sentence pursuant to Article 29 of the Revised
1âwphi1

Penal Code, as amended:

ART. 29. Period of preventive imprisonment deducted from term of imprisonment.– Offenders or
accused who have undergone preventive imprisonment shall be credited in the service of their
sentence consisting of deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in writing after being informed of
the effects thereof and with the assistance of counsel to abide by the same disciplinary rules
imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times of any
crime; and

2. When upon being summoned for the execution of their sentence they have failed to
surrender voluntarily.

If the detention prisoner does notagree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in
the service of his sentence with four-fifths of the time during which he has undergone preventive
imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty
(30) years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible
maximum imprisonment of the offense charged to which he may be sentenced and his case is not
yet terminated, he shall be released immediately without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is under review. Computation of preventive
imprisonment for purposes of immediate release under this paragraph shall be the actual period of
detention with good conduct time allowance: Provided, however, That if the accused is absent
without justifiable cause at any stage of the trial, the court may motu proprio order the rearrest of the
accused: Provided, finally, That recidivists, habitual delinquents, escapees and persons charged
with heinous crimes are excluded from the coverage of this Act. In case the maximum penalty to
which the accused may be sentenced is destierro, he shall be released after thirty (30) days of
preventive imprisonment. 99

Finally, this court laments thatobject evidence retrieved from the scene of the crime were not
properly handled, and no results coming from the forensic examinations were presented to the court.
There was no examination of the fingerprints found on the kitchen knife retrieved from the manhole
near the house of Chavez.  There were no results of the DNA examination done on the hair strands
100

found with the knife and those in the clutches of the victim. Neither was there a comparison made
between these strands of hair and Chavez’s. There was no report regarding any finding of traces of
blood on the kitchen knife recovered, and no matching with the blood of the victim or Chavez’s. The
results of this case would have been rendered with more confidence at the trial court level had all
these been done. In many cases, eyewitness testimony may not be as reliable — or would have
been belied — had object evidence been properly handled and presented.

We deal with the life of a personhere. Everyone’s life — whether it be the victim’s or the accused’s
— is valuable. The Constitution and our laws hold these lives in high esteem. Therefore,
investigations such as these should have been attended with greaterprofessionalism and more
dedicated attention to detail by our law enforcers. The quality of every conviction depends on the
evidence gathered, analyzed, and presented before the courts. The public’s confidence on our
criminal justice system depends on the quality of the convictions we promulgate against the
accused. All those who participate in our criminal justice system should realize this and take this to
heart.

WHEREFORE, the judgment of the trial court is MODIFIED. Accused-appellant Mark Jason Chavez
y Bitancor alias "Noy" is hereby declared GUILTYbeyond reasonable doubt of the separate and
distinct crime of HOMICIDE. Inasmuch as the commission of the crime was not attended by any
aggravating or mitigating circumstances, accused-appellant Chavez is hereby SENTENCEDto suffer
an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, as minimum,
to seventeen (17) years and four (4) months of reclusion temporal, as maximum.

Accused-appellant Chavez's period of detention shall be deducted if consistent with Article 29 of the
Revised Penal Code.

SO ORDERED.

G.R. No. L-29169   August 19, 1968

 ROGER CHAVEZ, Petitioner, vs. THE HONORABLE COURT OF
APPEALS, THE PEOPLE OF THE PHILIPPINES and THE
WARDEN OF THE CITY JAIL OF MANILA, Respondents.

Estanislao E. Fernandez and Fausto Arce for petitioner.

Office of the Solicitor General for respondents.

SANCHEZ, J.: chanrobles virtual law library

The thrust of petitioner's case presented in his original and

supplementary petitions invoking jurisdiction of this Court is that he
is entitled, on habeas corpus, to be freed from imprisonment upon
the ground that in the trial which resulted in his conviction1 he was
denied his constitutional right not to be compelled to testify against
himself. There is his prayer, too, that, should he fail in this, he be
granted the alternative remedies of certiorari to strike down the two
resolutions of the Court of Appeals dismissing his appeal for failure
to file brief, and of mandamus to direct the said court to forward his
appeal to this Court for the reason that he was raising purely
questions of law. chanroblesvirtualawlibrary chanrobles virtual law library

The indictment in the court below - the third amended information -

upon which the judgment of conviction herein challenged was
rendered, was for qualified theft of a motor vehicle, one (1)
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648
Pasay City '62 together with its accessories worth P22,200.00.
Accused were the following: Petitioner herein, Roger Chavez,
Ricardo Sumilang alias "Romeo Vasquez", Edgardo P.
Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis
Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses,
Peter Doe, Charlie Doe and Paul Doe.2 chanrobles virtual law library

Averred in the aforesaid information was that on or about the 14th

day of November, 1962, in Quezon City, the accused conspired,
with intent of gain, abuse of confidence and without the consent of
the owner thereof, Dy Sun Hiok y Lim, in asporting the motor
vehicle above-described. chanroblesvirtualawlibrary chanrobles virtual law library

Upon arraignment, all the accused, except the three Does who have
not been identified nor apprehended, pleaded not guilty. chanroblesvirtualawlibrary chanrobles virtual law library

On July 23, 1963, trial commenced before the judge presiding

Branch IX of the Court of First Instance of Rizal in Quezon City. chanroblesvirtualawlibrary chanrobles virtual law library

The trial opened with the following dialogue, which for the great
bearing it has on this case, is here reproduced:.

COURT:  chanrobles virtual law library

The parties may proceed. chanroblesvirtualawlibrary chanrobles virtual law library

FISCAL GRECIA:

Our first witness is Roger Chavez [one of the accused]. chanroblesvirtualawlibrary chanrobles virtual law library
ATTY. CARBON [Counsel for petitioner Chavez]: chanrobles virtual law library

I am quite taken by surprise, as counsel for the accused Roger

Chavez, with this move of the Fiscal in presenting him as his
witness. I object.  chanrobles virtual law library

COURT:  chanrobles virtual law library

On what ground, counsel? . chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. CARBON:  chanrobles virtual law library

On the ground that I have to confer with my client. It is really

surprising that at this stage, without my being notified by the Fiscal,
my client is being presented as witness for the prosecution. I want
to say in passing that it is only at this very moment that I come to
know about this strategy of the prosecution. chanroblesvirtualawlibrary chanrobles virtual law library

COURT (To the Fiscal): chanrobles virtual law library

You are not withdrawing the information against the accused Roger
Chavez by making [him a] state witness?. chanroblesvirtualawlibrary chanrobles virtual law library

FISCAL GRECIA: chanrobles virtual law library

I am not making him as state witness, Your Honor.

I am only presenting him as an ordinary witness.  chanrobles virtual law library

ATTY. CARBON:

As a matter of right, because it will incriminate my client, I object.  virtual law library
chanrobles

COURT:  chanrobles virtual law library

The Court will give counsel for Roger Chavez fifteen minutes within
which to confer and explain to his client about the giving of his
testimony.

xxx     xxx     xxx

COURT: [after the recess]  chanrobles virtual law library

Are the parties ready? . chanroblesvirtualawlibrary chanrobles virtual law library

FISCAL: chanrobles virtual law library

We are ready to call on our first witness, Roger Chavez. chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. CARBON: chanrobles virtual law library

As per understanding, the proceeding was suspended in order to

enable me to confer with my client. chanroblesvirtualawlibrary chanrobles virtual law library
I conferred with my client and he assured me that he will not testify
for the prosecution this morning after I have explained to him the
consequences of what will transpire. chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

What he will testify to  does not necessarily incriminate him,

counsel. chanroblesvirtualawlibrary chanrobles virtual law library

And there is the right of the prosecution to ask anybody to act as

witness on the witness-stand including the accused.  chanrobles virtual law library

If there should be any question that is incriminating then that is the

time for counsel to interpose his objection and the court will sustain
him if and when the court feels that the answer of this witness to
the question would incriminate him. chanroblesvirtualawlibrary chanrobles virtual law library

Counsel has all the assurance that the court will not require the
witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on
the witnessstand.  chanrobles virtual law library

ATTY. CARBON: chanrobles virtual law library

I submit.

xxx     xxx     xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: . chanroblesvirtualawlibrary chanrobles virtual law library

MAY IT PLEASE THE COURT:  chanrobles virtual law library

This incident of the accused Roger Chavez being called to testify for
the prosecution is something so sudden that has come to the
knowledge of this counsel. chanroblesvirtualawlibrary chanrobles virtual law library

This representation has been apprised of the witnesses embraced in

the information. chanroblesvirtualawlibrary chanrobles virtual law library

For which reason I pray this court that I be given at least some days
to meet whatever testimony this witness will bring about. I
therefore move for postponement of today's hearing. chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

The court will give counsel time within which to prepare his cross-
examination of this witness. chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. CRUZ: chanrobles virtual law library

I labored under the impression that the witnesses for the

prosecution in this criminal case are those only listed in the
information. chanroblesvirtualawlibrary chanrobles virtual law library
I did not know until this morning that one of the accused will testify
as witness for the prosecution. chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

That's the reason why the court will go along with counsels for the
accused and will give them time within which to prepare for their
cross-examination of this witness. chanroblesvirtualawlibrary chanrobles virtual law library

The court will not defer  the taking of the direct examination of the
witness.

Call the witness to the witness stand.

EVIDENCE FOR THE PROSECUTION chanrobles virtual law library

ROGER CHAVEZ, 31 years old, single, buy and sell merchant,

presently detained at the Manila Police Department headquarters,
after being duly sworn according to law, declared as follows: chanrobles virtual law library

ATTY. IBASCO [Counsel for defendant Luis Asistio]:  chanrobles virtual law library

WITH THE LEAVE OF THE COURT: chanrobles virtual law library

This witness, Roger Chavez is one of the accused in this case No. Q-
5311.chanroblesvirtualawlibrary chanrobles virtual law library

The information alleges conspiracy. Under Rule 123, Section 12, it

states: chanrobles virtual law library

'The act or declaration of a conspirator relating to the conspiracy

and during its existence, may be given in evidence against the co-
conspirator after the conspiracy is shown by evidence other than
such act or declaration.'  chanrobles virtual law library

COURT: chanrobles virtual law library

That is premature, counsel. Neither the court nor counsels for the
accused know what the prosecution events to establish by calling
this witness to the witness stand. chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. IBASCO: chanrobles virtual law library

I submit. chanroblesvirtualawlibrary chanrobles virtual law library

COURT: The Fiscal may proceed.3

And so did the trial proceed. It began with the "direct examination"
of Roger Chavez by "Fiscal Grecia". chanroblesvirtualawlibrary chanrobles virtual law library

Came the judgment of February 1, 1965. The version of the

prosecution as found by the court below may be briefly narrated as
follows:  chanrobles virtual law library
A few days before November 12, 1962, Roger Chavez saw Johnson
Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang
(movie actor Romeo Vasquez) in mind, whom he knew was in the
market for such a car, Chavez asked Lee whether his car was for
sale. Lee answered affirmatively and left his address with Chavez.
Then, on November 12, Chavez met Sumilang at a barbershop
informed him about the Thunderbird. But Sumilang said that he had
changed his mind about buying a new car. Instead, he told Chavez
that he wanted to mortgage his Buick car for P10,000.00 to cover
an indebtedness in Pasay City. Upon the suggestion of Chavez, they
went to see Luis Asistio, who he knew was lending money on car
mortgages and who, on one occasion, already lent Romeo Vasquez
P3,000.00 on the same Buick car. Asistio however told the two that
he had a better idea on how to raise the money. His plan was to
capitalize on Romeo Vasquez' reputation as a wealthy movie star,
introduce him as a buyer to someone who was selling a car and,
after the deed of sale is signed, by trickery to run away with the
car. Asistio would then register it, sell it to a third person for a
profit. Chavez known to be a car agent was included in the plan. He
furnished the name of Johnson Lee who was selling his
Thunderbird. chanroblesvirtualawlibrary chanrobles virtual law library

In the morning of November 14, Chavez telephoned Johnson Lee

and arranged for an appointment. Sometime in the afternoon.
Chavez and Sumilang met Lee in his Thunderbird on Highway 54.
Sumilang was introduced as the interested buyer. Sumilang's driver
inspected the car, took the wheel for a while. After Sumilang and
Lee agreed on the purchase price (P21.000.00), they went to
Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the
car was registered. Thereafter, they went to see a lawyer notary
public in Quezon City, known to Chavez for the drafting of the deed
of sale. After the deed of sale was drawn up, it was signed by
Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's
driver and Johnson Lee the witnesses thereto. chanroblesvirtualawlibrary chanrobles virtual law library

As payment was to be made at Eugene's restaurant in Quezon City,

all of them then drove in the Thunderbird car to that place. The
deed of sale and other papers remained in the pockets of Johnson
Lee.chanroblesvirtualawlibrary chanrobles virtual law library

At Eugene's, a man approached Sumilang with a note which stated

that the money was ready at the Dalisay Theater. Sumilang then
wrote on the same note that the money should be brought to the
restaurant. At the same time he requested Lee to exhibit the deed
of sale of the car to the note bearer.4 chanrobles virtual law library

Then, the two Chinese were left alone in the restaurant. For
Sumilang, who had left the table to pose for pictures with some fans
and come back, again left never to return. So did Chavez, who
disappeared after he left on the pretext of buying cigarettes. The
two Chinese could not locate Sumilang and Chavez. They went out
to the place where the Thunderbird was parked, found that it was
gone. They then immediately reported its loss to the police. Much
later, the NBI recovered the already repainted car and impounded
it.
chanroblesvirtualawlibrary chanrobles virtual law library

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio

converged that same day at Barrio Fiesta, a restaurant at Highway
54 near the Balintawak monument in Caloocan. There, Asistio
handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as
the latter's share in the transaction. On the 14th of November, the
registration of the car was transferred in the name of Sumilang in
Cavite City, and three days later, in the name of Asistio in
Caloocan. chanroblesvirtualawlibrary chanrobles virtual law library

From the court's decision, Ricardo Sumilang's version, corroborated

in part by Asistio, may be condensed as follows:  chanrobles virtual law library

In the last week of September, 1962, Sumilang saw Roger Chavez

at a gas station. The latter informed him that there was a
Thunderbird from Clark Field for sale for a price between
P20,000.00 and P22,000.00. Chavez said that it could be held for
him with a down payment of P10,000.00. chanroblesvirtualawlibrary chanrobles virtual law library

To raise this sum, Sumilang and Chavez, on October 1, went to the

house of a certain Nena Hernaez de los Reyes who wrote out a
check for P5,000.00 as a loan to Sumilang. That check was
exhibited in court. Sumilang and Chavez then went to Pasay City to
see a certain Mario Baltazar, an agent of the Pasay City Mayor, and
Narsing Cailles, Chief of the Fire Department. Sumilang asked the
two for a P10,000-loan backed up by the P5,000.00-check aforesaid
on condition that it should not be cashed immediately as there were
not enough funds therefor. Baltazar and Cailles agreed to give the
money the nextday as long as the check would be left with them
and Sumilang would sign a promissory note for P10,000.00.
Baltazar later informed Sumilang that Chavez picked up the money
the next day. Four or five days afterwards, Chavez returned
P4,000.00 to Sumilang because P6,000.00 was enough for the
deposit. And so, Sumilang gave back the P4,000.00 to Baltazar. chanroblesvirtualawlibrary chanrobles virtual law library

About the end of October or at the beginning of November, Chavez

asked Sumilang for another P3,000.00. Sumilang sent Chavez to
Baltazar and Cailles, with a note requesting that they accommodate
him once more. He also sent a check, again without funds. Baltazar
gave the money after verifying the authenticity of the note. chanroblesvirtualawlibrary chanrobles virtual law library

On November 14, Chavez appeared at Sumilang's house with the

news that the car was ready if Sumilang was ready with the rest of
the money. So Sumilang got P9,000.00 from his mother and
another P4,000.00 from his aparador. He immediately gave
P6,000.00 to Chavez, intending to pay out the balance upon the
car's delivery. It was then that Chavez told Sumilang that the car
was already bought by a Chinese who would be the vendor. chanroblesvirtualawlibrary chanrobles virtual law library

The purchase price finally agreed upon between Sumilang and

Johnson Lee was P21,000.00, plus P500.00 agents commission at
the expense of the buyer. Sumilang told Lee that he already paid
part of the price to Chavez.
chanroblesvirtualawlibrary chanrobles virtual law library

At Eugene's, Chavez asked Sumilang for the balance. Sumilang

accommodated. There, Sumilang, also saw a friend, "Ging" Pascual.
In the course of their conversation at the bar, Sumilang mentioned
the proposed transaction thru Chavez. Pascual warned that Chavez
was a "smart" agent and advised that Sumilang should have a
receipt for his money. A certain Bimbo, a friend of Pascual, offered
to make out a receipt for Chavez to sign. chanroblesvirtualawlibrary chanrobles virtual law library

After Sumilang returned from posing for some photographs with

some of his fans, Bimbo showed him the receipt already signed by
Chavez. Sumilang requested Pascual and Bimbo to sign the receipt
as witnesses. And they did. This receipt was offered as an exhibit by
the prosecution and by Sumilang. chanroblesvirtualawlibrary chanrobles virtual law library

When Sumilang was ready to leave Eugene's, Johnson Lee turned

over to him the deed of sale, the registration papers and the keys to
the car. After shaking hands with Lee, Sumilang drove away in the
car with his driver at the wheel. chanroblesvirtualawlibrary chanrobles virtual law library

Two or three days afterwards, Sumilang dropped by the Barrio

Fiesta on his way to a film shooting at Bulacan. He saw Asistio with
many companions. Asistio liked his Thunderbird parked outside.
Asistio offered to buy it from him for P22,500.00. As the offer was
good, and knowing Asistio's and his friends' reputation for always
getting what they wanted, Sumilang consented to the sale. Asistio
tendered a down payment of P1,000.00; the balance he promised to
pay the next day after negotiating with some financing company.
Before said balance could be paid, the car was impounded. chanroblesvirtualawlibrary chanrobles virtual law library

The trial court gave evidence to Sumilang's averment, strengthened

by Baltazar's and Cailles' corroborations, that he paid good money
for the car. Sumilang was thus cleared. So was Asistio whom the
trial court believed to be a mere buyer of the car. And so, the
prosecution's theory of conspiracy was discounted. chanroblesvirtualawlibrary chanrobles virtual law library

As to the other accused, the court found no case against Pedro

Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused
"Ging" Pascual was also acquitted for in the first place he was not
identified by Johnson Lee in court. chanroblesvirtualawlibrary chanrobles virtual law library

As to Roger Chavez, however, the court had this to say: "Roger

Chavez does not offer any defense. As a matter of fact, his
testimony as witness for the prosecution establishes his guilt
beyond reasonable doubt."5 The trial court branded him "a self-
confessed culprit".6 The court further continued:

It is not improbable that true to the saying that misery loves

company Roger Chavez tried to drag his co-accused down with him
by coloring his story with fabrications which he expected would
easily stick together what with the newspaper notoriety of one and
the sensationalism caused by the other. But Roger
Chavez' accusations of Asistio's participation is utterly
uncorroborated. And coming, as it does, from a man who has had at
least two convictions for acts not very different from those charged
in this information, the Court would be too gullible  if it were to give
full credence to his words even if they concerned a man no less
notorious than himself.7

The trial court then came to the conclusion that if Johnson Lee was
not paid for his car, he had no one but Roger Chavez to blame. chanroblesvirtualawlibrary chanrobles virtual law library

The sum of all these is that the trial court freed all the accused
except Roger Chavez who was found guilty beyond reasonable
doubt of the crime of qualified theft. He was accordingly sentenced
to suffer an indeterminate penalty of not less than ten (10) years,
one (1) day, as minimum and not more than fourteen (14) years,
eight (8) months and one (1) day as maximum, to indemnify Dy
Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
subsidiary imprisonment in case of insolvency, to undergo the
accessory penalties prescribed by law, and to pay the costs. The
Thunderbird car then in the custody of the NBI was ordered to be
turned over to Ricardo Sumilang, who was directed to return to
Asistio the sum of P1,000.00 unless the latter chose to pay
P21,500.00, representing the balance of the contract price for the
car. chanroblesvirtualawlibrary chanrobles virtual law library

The foregoing sentence was promulgated on March 8, 1965. Roger

Chavez appealed to the Court of Appeals. chanroblesvirtualawlibrary chanrobles virtual law library

On April 18, 1968, the Court of Appeals required Atty. Natividad

Marquez, counsel for Roger Chavez, to show cause within ten days
from notice why Chavez' appeal should not be considered
abandoned and dismissed. Reason for this is that said lawyer
received notice to file brief on December 28, 1967 and the period
for the filing thereof lapsed on January 27, 1968 without any brief
having been filed. chanroblesvirtualawlibrary chanrobles virtual law library

On May 13, 1968, Atty. Marquez registered a detailed written

explanation. She also stated that if she were allowed to file
appellant's brief she would go along with the factual findings  of the
court below but will show however that its conclusion is erroneous.8
virtual law library
chanrobles

On May 14, 1968, the Court of Appeals, despite the foregoing

explanation, resolved to dismiss the appeal. A move to reconsider
was unavailing. For, on June 21, 1968, the Court of Appeals,
through a per curiam resolution, disposed to maintain its May 14
resolution dismissing the appeal, directed the City Warden of Manila
where Chavez is confined by virtue of the warrant of arrest issued
by the Court of Appeals, to turn him over to Muntinlupa Bilibid
Prisons pending execution of the judgment below, and ordered
remand of the case to the Quezon City court for execution of
judgment. chanroblesvirtualawlibrary chanrobles virtual law library
It was at this stage that the present proceedings were commenced
in this Court. chanroblesvirtualawlibrary chanrobles virtual law library

Upon the petitions, the return, and the reply, and after hearing on
oral arguments, we now come to grips with the main problem
presented. chanroblesvirtualawlibrary chanrobles virtual law library

We concentrate attention on that phase of the issues which relates

petitioner's assertion that he was compelled to testify against
himself. For indeed if this one question is resolved in the
affirmative, we need not reach the others; in which case, these
should not be pursued here. chanroblesvirtualawlibrary chanrobles virtual law library

1. Petitioner's plea on this score rests upon his averment, with

proof, of violation of his right - constitutionally entrenched - against
self-incrimination. He asks that the hand of this Court be made to
bear down upon his conviction; that he be relieved of the effects
thereof. He asks us to consider the constitutional injunction that "No
person shall be compelled to be a witness against himself,"9 fully
echoed in Section 1, Rule 115, Rules of Court where, in all criminal
prosecutions, the defendant shall be entitled: "(e) To be exempt
from being a witness against himself." . chanroblesvirtualawlibrary chanrobles virtual law library

It has been said that forcing a man to be a witness against himself

is at war with "the fundamentals of a republican
government"; 10 that [i]t may suit the purposes of despotic power
but it can not abide the pure atmosphere of political liberty and
personal freedom."11 Mr. Justice Abad Santos recounts the historical
background of this constitutional inhibition, thus: " "The
maxim Nemo tenetur seipsum accusare  had its origin in a protest
against the inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long obtained in the
continental system, and, until the expulsion of the Stuarts from the
British throne in 1688, and the erection of additional barriers for the
protection of the people against the exercise of arbitrary power, was
not uncommon even in England. While the admissions of
confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence, if an
accused person be asked to explain his apparent connection with a
crime under investigation, the ease with which the questions put to
him may assume an inquisitorial character, the temptation to press,
the witness unduly, to browbeat him if he be timid or reluctant, to
push him into a corner, and to entrap him into fatal contradictions,
which is so painfully evident in many of the earlier state trials,
notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise to a demand for
its total abolition. The change in the English criminal procedure in
that particular seems to be founded upon no statute and no judicial
opinion, but upon a general and silent acquiescence of the courts in
a popular demand. But, however adopted, it has become firmly
embedded in English, as well as in American jurisprudence. So
deeply did the iniquities of the ancient system impress themselves
upon the minds of the American colonists that the states, with one
accord, made a denial of the right to question an accused person a
part of their fundamental law, so that a maxim which in England
was a mere rule of evidence, became clothed in this country with
the impregnability of a constitutional enactment." (Brown vs.
Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice
Malcolm, in expressive language, tells us that this maxim was
recognized in England in the early days "in a revolt against the
thumbscrew and the rack." 13 An old Philippine case
[1904] 14 speaks of this constitutional injunction as "older than the
Government of the United States"; as having "its origin in a protest
against the inquisitorial methods of interrogating the accused
person"; and as having been adopted in the Philippines "to wipe out
such practices as formerly prevailed in these Islands of requiring
accused persons to submit to judicial examinations, and to give
testimony regarding the offenses with which they were charged."  chanrobles virtual law library

So it is then that this right is "not merely a formal technical rule the
enforcement of which is left to the discretion of the court"; it is
mandatory; it secures to a defendant a valuable and substantive
right; 15 it is fundamental to our scheme of justice. Just a few
months ago, the Supreme Court of the United States (January 29,
1968), speaking thru Mr. Justice Harlan warned that "[t]he
constitutional privilege was intended to shield the guilty and
imprudent as well as the innocent and foresighted." 16 chanrobles virtual law library

It is in this context that we say that the constitutional guarantee

may not be treated with unconcern. To repeat, it is mandatory; it
secures to every defendant a valuable and substantive right.
Ta�ada and Fernando (Constitution of the Philippines, 4th ed., vol.
I, pp. 583-584) take note of U.S. vs. Navarro, supra,  which
reaffirms the rule that the constitutional proscription was
established on broad grounds of public policy and humanity; of
policy because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it would be
to extort a confession of truth by a kind of duress every species and
degree of which the law abhors. 17 chanrobles virtual law library

Therefore, the court may not extract from a defendant's own lips
and against his will an admission of his guilt. Nor may a court as
much as resort to compulsory disclosure, directly or indirectly, of
facts usable against him as a confession of the crime or the
tendency of which is to prove the commission of a crime. Because,
it is his right to forego testimony, to remain silent, unless he
chooses to take the witness stand - with undiluted, unfettered
exercise of his own free, genuine will. chanroblesvirtualawlibrary chanrobles virtual law library

Compulsion as it is understood here does not necessarily connote

the use of violence; it may be the product of unintentional
statements. Pressure which operates to overbear his will, disable
him from making a free and rational choice, or impair his capacity
for rational judgment would in our opinion be sufficient. So is moral
coercion "tending to force testimony from the unwilling lips of the
defendant." 18chanrobles virtual law library
2. With the foregoing as guideposts, we now turn to the facts.
Petitioner is a defendant in a criminal case. He was called by the
prosecution as the first witness in that case to testify for the People
during the first day of trial thereof. Petitioner objected and invoked
the privilege of self-incrimination. This he broadened by the clear
cut statement that he will not testify. But petitioner's protestations
were met with the judge's emphatic statement that it "is the right of
the prosecution to ask anybody to act as witness on the witness
stand including the accused," and that defense counsel "could not
object to have the accused called on the witness stand." The
cumulative impact of all these is that accused-petitioner had to take
the stand. He was thus peremptorily asked to create evidence
against himself. The foregoing situation molds a solid case for
petitioner, backed by the Constitution, the law, and
jurisprudence. chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner, as accused, occupies a different tier of protection from an

ordinary witness. Whereas an ordinary witness may be compelled to
take the witness stand and claim the privilege as each question
requiring an incriminating answer is shot at him, 19 and accused
may altogether refuse to take the witness stand and refuse to
answer any and all questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People would be to
incriminate him. 21 The rule positively intends to avoid and prohibit
the certainly inhuman procedure of compelling a person "to furnish
the missing evidence necessary for his conviction." 22 This rule may
apply even to a co-defendant in a joint trial.23 chanrobles virtual law library

And the guide in the interpretation of the constitutional precept that

the accused shall not be compelled to furnish evidence against
himself "is not the probability of the evidence but it is the  capability
of abuse." 24 Thus it is, that it was undoubtedly erroneous for the
trial judge to placate petitioner with these words:.

What he will testify to does not necessarily incriminate him,

counsel.chanroblesvirtualawlibrary chanrobles virtual law library

And there is the right of the prosecution to ask anybody to act as

witness on the witness-stand including the accused. chanroblesvirtualawlibrary chanrobles virtual law library

If there should be any question that is incriminating then that is the

time for counsel to interpose his objection and the court will sustain
him if and when the court feels that the answer of this witness to
the question would incriminate him. chanroblesvirtualawlibrary chanrobles virtual law library

Counsel has all the assurance that the court will not require the
witness to answer questions which would incriminate him. chanroblesvirtualawlibrary chanrobles virtual law library

But surely, counsel could not object to have the accused called on
the witness stand.

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons

Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a
defendant's knowledge of the facts remains concealed within his
bosom, he is safe; but draw it from thence, and he is exposed" - to
conviction.chanroblesvirtualawlibrary chanrobles virtual law library

The judge's words heretofore quoted - "But surely counsel could not
object to have the accused called on the witness stand" - wielded
authority. By those words, petitioner was enveloped by a coercive
force; they deprived him of his will to resist; they foreclosed choice;
the realities of human nature tell us that as he took his oath to tell
the truth, the whole truth and nothing but the truth, no genuine
consent underlay submission to take the witness stand.
Constitutionally sound consent was absent. chanroblesvirtualawlibrary chanrobles virtual law library

3. Prejudice to the accused for having been compelled over his

objections to be a witness for the People is at once apparent. The
record discloses that by leading questions Chavez, the accused, was
made to affirm his statement given to the NBI agents on July 17,
1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed
the plan and execution thereof by Sumilang (Vasquez), Asistio and
himself to deprive the Chinese of his Thunderbird car. And he
himself proceeded to narrate the same anew in open court. He
identified the Thunderbird car involved in the case. 27 chanrobles virtual law library

The decision convicting Roger Chavez was clearly of the view that
the case for the People was built primarily around the admissions of
Chavez himself. The trial court described Chavez as the "star
witness for the prosecution". Indeed, the damaging facts forged in
the decision were drawn directly from the lips of Chavez as a
prosecution witness and of course Ricardo Sumilang for the defense.
There are the unequivocal statements in the decision that "even
accused Chavez" identified "the very same Thunderbird that
Johnson Lee had offered for sale"; that Chavez "testimony as
witness for the prosecution establishes his guilt beyond reasonable
doubt and that Chavez is "a self-confessed culprit". chanroblesvirtualawlibrary chanrobles virtual law library

4. With all these, we have no hesitancy in saying that petitioner was

forced to testify to incriminate himself, in full breach of his
constitutional right to remain silent. It cannot be said now that he
has waived his right. He did not volunteer to take the stand and in
his own defense; he did not offer himself as a witness; on the
contrary, he claimed the right upon being called to testify. If
petitioner nevertheless answered the questions inspite of his fear of
being accused of perjury or being put under contempt, this
circumstance cannot be counted against him. His testimony is not of
his own choice. To him it was a case of compelled submission. He
was a cowed participant in proceedings before a judge who
possessed the power to put him under contempt had he chosen to
remain silent. Nor could he escape testifying. The court made it
abundantly clear that his testimony at least on direct examination
would be taken right then and thereon the first day of the trial. chanroblesvirtualawlibrary chanrobles virtual law library

It matters not that, after all efforts to stave off petitioner's taking
the stand became fruitless, no objections to questions propounded
to him were made. Here involve is not a mere question of self-
incrimination. It is a defendant's constitutional immunity from being
called to testify against himself. And the objection made at the
beginning is a continuing one. chanroblesvirtualawlibrary chanrobles virtual law library

There is therefore no waiver of the privilege. "To be effective, a

waiver must be certain and unequivocal, and intelligently,
understandably, and willingly made; such waiver following only
where  liberty of choice has been fully accorded. After a claim a
witness cannot properly be held to have waived his privilege on
vague and uncertain evidence." 28 The teaching in Johnson vs.
Zerbst  29 is this: "It has been pointed out that "courts indulge every
reasonable presumption against waiver" of fundamental
constitutional rights and that we "do not presume acquiescence in
the loss of fundamental rights." A waiver is ordinarily an intentional
relinquishment or abandonment of a known right or
privilege." Renuntiatio non praesumitur.  chanrobles virtual law library

The foregoing guidelines, juxtaposed with the circumstances of the

case heretofore adverted to, make waiver a shaky defense. It
cannot stand. If, by his own admission, defendant proved his guilt,
still, his original claim remains valid. For the privilege, we say again,
is a rampart that gives protection -  even to the guilty.  30 chanrobles virtual law library

5. The course which petitioner takes is correct.  Habeas corpus is a

high prerogative writ. 31 It is traditionally considered as an
exceptional remedy to release a person whose liberty is illegally
restrained such as when the accused's constitutional rights are
disregarded. 32 Such defect results in the absence or loss of
jurisdiction 33 and therefore invalidates the trial and the consequent
conviction of the accused whose fundamental right was
violated. 34 That void judgment of conviction may be challenged by
collateral attack, which precisely is the function of habeas
corpus. 35 This writ may issue even if another remedy which is less
effective may be availed of by the defendant. 36 Thus, failure by the
accused to perfect his appeal before the Court of Appeals does not
preclude a recourse to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained in Johnson vs.
Zerbst, 39 the writ of habeas corpus as an extraordinary remedy
must be liberally given effect 40 so as to protect well a person whose
liberty is at stake. The propriety of the writ was given the nod in
that case, involving a violation of another constitutional right, in this
wise:

Since the Sixth Amendment constitutionally entitles one charged

with crime to the assistance of Counsel, compliance with this
constitutional mandate is an essential jurisdictional prerequisite to a
Federal Court's authority. When this right is properly waived, the
assistance of Counsel is no longer a necessary element of the
Court's jurisdiction to proceed to conviction and sentence. If the
accused, however, is not represented by Counsel and has not
competently and intelligently waived his constitutional right, the
Sixth Amendment stands as a jurisdictional bar to a valid conviction
and sentence depriving him of his liberty. A court's jurisdiction at
the beginning of trial may be lost "in the course of the proceedings"
due to failure to complete the court - as the Sixth Amendment
requires - by providing Counsel for an accused who is unable to
obtain Counsel, who has not intelligently waived this constitutional
guaranty, and whose life or liberty is at stake. If this requirement of
the Sixth Amendment is not complied with, the court no longer has
jurisdiction to proceed.  The judgment of conviction pronounced by a
court without jurisdiction is void, and one imprisoned
thereunder may obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused
Roger Chavez whose case presents a clear picture of disregard of a
constitutional right is absolutely proper. Section 1 of Rule 102
extends the writ, unless otherwise expressly provided by law, "to all
cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto. chanroblesvirtualawlibrary chanrobles virtual law library

Just as we are about to write finis to our task, we are prompted to

restate that: "A void judgment is in legal effect no judgment. By it
no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally
worthless. It neither binds nor bars any one. All acts performed
under it and all claims flowing out of it are void. The parties
attempting to enforce it may be responsible as trespassers. ... " 42 chanrobles virtual law library

6. Respondents' return 43 shows that petitioner is still serving under

a final and valid judgment of conviction for another offense. We
should guard against the improvident issuance of an order
discharging a petitioner from confinement. The position we take
here is that petitioner herein is entitled to liberty thru habeas corpus
only with respect to Criminal Case Q-5311 of the Court of First
Instance of Rizal, Quezon City Branch, under which he was
prosecuted and convicted. chanroblesvirtualawlibrary chanrobles virtual law library

Upon the view we take of this case, judgment is hereby rendered

directing the respondent Warden of the City Jail of Manila or the
Director of Prisons or any other officer or person in custody of
petitioner Roger Chavez by reason of the judgment of the Court of
First Instance of Rizal, Quezon City Branch, in Criminal Case Q-
5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
Sumilang, et al.,  accused," to discharge said Roger Chavez from
custody, unless he is held, kept in custody or detained for any cause
or reason other than the said judgment in said Criminal Case Q-
5311 of the Court of First Instance of Rizal, Quezon City Branch, in
which event the discharge herein directed shall be effected when
such other cause or reason ceases to exist. chanroblesvirtualawlibrary chanrobles virtual law library

No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles

and Fernando, JJ., concur. Castro, J., concurs in a separate opinion.
 Separate Opinions

CASTRO, J.,  dissenting : chanrobles virtual law library

In 1901, early in the history of constitutional government in this

country, this Court reversed the conviction of an accused who,
having pleaded "not guilty," was required by the judge to testify and
answer the complaint. The case was that of United States v.
Junio,  reported in the first volume of the Philippine Reports, on
page 50 thereof. chanroblesvirtualawlibrary chanrobles virtual law library

Resolution of the case did not require an extended opinion (it

consumed no more than a page in the Reports). For indeed the facts
fitted exactly into the prohibition contained in The President's
Instruction to the (Second) Philippine Commission1 "that no person
shall ... be compelled in any criminal case to be a witness against
himself.".
chanroblesvirtualawlibrary chanrobles virtual law library

There was no need either for a dissertation on the Rights of Man,

though occasion for this was not lacking as the predominant
American members of the Court were under a special commission to
prepare the Filipinos for self-government. The privilege against self-
incrimination was fully understood by the Filipinos, whose own
history provided the necessary backdrop for this privilege. 2 chanrobles virtual law library

The Supreme Court simply said, "The judge had no right to compel
the accused to make any statement whatever," and declared the
proceedings void. chanroblesvirtualawlibrary chanrobles virtual law library

Nor was there a similar judicial error likely to be committed in the

years to come, what with the constant reminder of a Bill of Rights
enshrined in successive organic acts intended for the
Philippines.3 This is not to say that the Philippine history of the
privilege ended with the Junio case. To be sure, violations of the
privilege took other, and perhaps subtle, forms4 but not the form
directly prohibited by the privilege. Even in the recent case of Cabal
v. Kapunan5 it was assumed as a familiar learning that the accused
in a criminal case cannot be required to give testimony and that if
his testimony is needed at all against his co-accused, he must first
be discharged.6 If Cabal, the respondent in an administrative case,
was required by an investigating committee to testify, it was
because it was thought that proceedings for forfeiture of illegally
acquired property under Republic Act 13797 were civil and not
criminal in nature. Thus Mr. Justice (now Chief Justice) Concepcion
could confidently say:

At the outset, it is not disputed that the accused in a criminal case

may refuse not only to answer incriminatory questions but also to
take the witness stand. (3 Whartons Criminal Evidence, pp. 1959-
1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to
whether or not the proceedings before the aforementioned
Committee is civil or criminal in character.

Today, perhaps because of long separation from our past, we need

what Holmes called "education in the obvious, more than
investigation of the obscure."8 The past may have receded so far
into the distance that our perspectives may have been altered and
our vision blurred. chanroblesvirtualawlibrary chanrobles virtual law library

When the court in the case at bar required the petitioner to testify,
it in effect undid the libertarian gains made over half a century and
overturned the settled law. The past was recreated with all its
vividness and all its horrors: John Lilburne in England in 1637,
refusing to testify before the Council of the Star Chamber and
subsequently condemned by it to be whipped and pilloried for his
"boldness in refusing to take a legal oath;"9 the Filipino priests
Gomez, Burgos and Zamora in 1872 condemned by the Inquisition
to die by their own testimony. 10 chanrobles virtual law library

It is for this reason that I deem this occasion important for the
expression of my views on the larger question of constitutional
dimension. chanroblesvirtualawlibrary chanrobles virtual law library

No doubt the constitutional provision that "No person shall be

compelled to be a witness against himself" 11 may, on occasion,
save a guilty man from his just deserts, but it is aimed against a
more far reaching evil - recurrence of the Inquisition and the Star
Chamber, even if not in their stark brutality. Prevention of the
greater evil was deemed of more importance than occurrence of the
lesser evil. 12 As Dean Griswold put the matter with eloquence:.

[T]he privilege against self-incrimination is one of the great

landmarks in man's struggle to make himself civilized ... [W]e do
not make even the most hardened criminal sign his own death
warrant, or dig his own grave, or pull the lever that springs the trap
on which he stands. We have through the course of history
developed considerable feeling of the dignity and intrinsic
importance of the individual man. Even the evil man is a human
being. 13

The Government must thus establish guilt by evidence

independently and freely secured; it can not by coercion prove a
charge against an accused out of his own mouth. 14 chanrobles virtual law library

This is not what was done here. What was done here was to force
the petitioner to take the witness stand and state his part in the
crime charged as "star witness for the prosecution," to use the very
words of the decision, and, by means of his testimony, prove his
guilt. Thus, the trial court said in its decision:

Roger Chavez does not offer any defense. As a matter of fact, his
testimony as a witness for the prosecution establishes his guilt
beyond reasonable doubt.
The petitioner has been variously described by the trial court as "a
car agent ... well versed in this kind of chicanery" "a self-confessed
culprit," and "a man with at least two convictions for acts not very
different from those charged in [the] information." But if he has
thus been described it was on the basis of evidence wrung from his
lips. If he was ultimately found guilty of the charge against him it
was because of evidence which he was forced to give. In truth he
was made the "star witness for the prosecution" against himself.
library
chanroblesvirtualawlibrary chanrobles virtual law

But neither torture nor an oath nor the threat of punishment such
as imprisonment for contempt can be used to compel him to provide
the evidence to convict himself. No matter how evil he is, he is still
a human being. chanroblesvirtualawlibrary chanrobles virtual law library

The fact that the judgment of conviction became final with the
dismissal of the appeal to the Court of Appeals for failure of the
petitioner's former counsel to file a brief,15 is of no moment. That
judgment is void, and it is precisely the abiding concern of the writ
of habeas corpus  to provide redress for unconstitutional and
wrongful convictions. Vindication of due process, it has been well
said, is precisely the historic office of the Great Writ. 16 chanrobles virtual law library

In many respects, this case is similar to that of Fay v. Noia. 17 Noia

was convicted of murder in 1942 with Santo Caminito and Frank
Bonino in the County Court of Kings County, New York, in the killing
of one Hemmeroff during the commission of a robbery. The sole
evidence against each defendant was his signed confession.
Caminito and Bonino, but not Noia appealed their convictions to the
Appellate Division of the New York Supreme Court. These appeals
were unsuccessful but subsequent legal proceedings resulted in the
releases of Caminito and Bonino upon findings that their confessions
had been coerced and their conviction therefore procured in
violation of the Fourteenth Amendment. Although Noia's confession
was found to have been coerced, the United States District Court for
the Southern District of New York held that, because of Noia's
failure to appeal, he must be denied reliefin view of the provision of
28 U.S.C. sec. 2254 that "An application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the State. ..." The
Court of Appeals for the Second Circuit reversed the judgment of
the District Court and ordered Noia's conviction set aside, with
direction to discharge him from custody unless given a new trial
forthwith. From that judgment the State appealed. chanroblesvirtualawlibrary chanrobles virtual law library

As the Supreme Court of the United States phrased the issue, the
"narrow question is whether the respondent Noia may be granted
federal habeas corpus relief from imprisonment under a New York
conviction now admitted by the State to rest upon a confession
obtained from him in violation of the Fourteenth Amendment, after
he was denied state post-conviction relief because the coerced
confession claim had been decided against him at the trial and Noia
had allowed the time for a direct appeal to lapse without seeking
review by a state appellate court."  chanrobles virtual law library

In affirming the judgment of the Court of Appeals, the United States

Supreme Court, through Mr. Justice Brennan, spoke in enduring
language that may well apply to the case of Roger Chavez. Said the
Court:

Today as always few indeed is the number of State prisoners who

eventually win their freedom by means of federal habeas corpus.
These few who are ultimately successful are persons whom society
has grievously wronged and for whom belated liberation is little
enough compensation. Surely no fair minded person will contend
that those who have been deprived of their liberty without due
process of law ought nevertheless to languish in prison. Noia, no
less than his co-defendants Caminito and Bonino, is conceded to
have been the victim of unconstitutional state action. Noia's case
stands on its own; but surely no just and humane legal system can
tolerate a result whereby a Caminito and a Bonino are at liberty
because their confessions were found to have been coerced yet
Noia, whose confession was also coerced, remains in jail for life. For
such anomalies, such affronts to the conscience of a civilized
society, habeas corpus is predestined by its historical role in the
struggle for personal liberty to be the ultimate remedy. If the States
withhold effective remedy, the federal courts have the power and
the duty to provide it. Habeas Corpus is one of the precious
heritages of Anglo-American civilization. We do no more today than
confirm its continuing efficacy.

A fitting conclusion of this separate opinion may perhaps be found

in two memorable admonitions from Marjorie G. Fribourg and
Justice William O. Douglas.chanroblesvirtualawlibrary chanrobles virtual law library

Mrs. Fribourg, in her inimitable phrase, warns us that -

... Time has taught its age-old lesson. Well-meaning people burnt
witches. Well-meaning prosecutors have convicted the innocent.
Well-meaning objectives espoused by those not grounded in history
can lure us from protecting our heritage of equal justice under the
law. They can entice us, faster than we like to believe, into
endangering our liberties.18

And these are the unforgettable words of Justice Douglas:

The challenge to our liberties comes frequently not from those who
consciously seek to destroy our system of government, but from
men of goodwill - good men who allow their proper concerns to
blind them to the fact that what they propose to accomplish
involves an impairment of liberty.

xxx     xxx     xxx chanrobles virtual law library

The motives of these men are often commendable. What we must

remember, however, is that preservation of liberties does not
depend on motives. A suppression of liberty has the same effect
whether the suppressor be a reformer or an outlaw. The only
protection against misguided zeal is constant alertness to infractions
of the guarantees of liberty contained in our Constitution. Each
surrender of liberty to the demands of the moment makes easier
another, larger surrender. The battle over the Bill of Rights is a
never ending one.

xxx     xxx     xxx chanrobles virtual law library

The liberties of any person are the liberties of all of us.

xxx     xxx     xxx chanrobles virtual law library

In short, the liberties of none are safe unless the liberties of all are
protected.chanroblesvirtualawlibrary chanrobles virtual law library

But even if we should sense no danger to our own liberties, even if

we feel secure because we belong to a group that is important and
respected, we must recognize that our Bill of Rights is a code of fair
play for the less fortunate that we in all honor and good conscience
must observe.19