G.R. No.
217874 that on September 19, 1996, the only deposit in favor of the DOTC was that made by
OPHELIA HERNAN, Petitioner,
vs.
THE HONORABLE SANDIGANBAYAN,, Respondent
DECISION
PERALTA, J.:
Before the Court is a special civil action for certiorari under Rule 65 of the Rules of
Court seeking to reverse and set aside the Resolution1 dated February 2, 2015 and
Decision2 dated November 13, 2009 of the Sandiganbayan 2nd Division which
affirmed, with modification, the Decision dated June 28, 2002 of the Regional Trial
Court (RTC), Branch 7, Baguio City convicting petitioner of the crime of
malversation of public funds in Criminal Case No. 15722-R.
The antecedent facts are as follows:
In October 1982, petitioner Ophelia Hernan joined the Department of Transportation
and Communication (DOTC), Cordillera Administrative Region (CAR) in Baguio
City wherein she served as an accounting clerk. In September 1984, she was
promoted to the position of Supervising Fiscal Clerk by virtue of which she was
designated as cashier, disbursement and collection officer. 3 As such, petitioner
received cash and other collections from customers and clients for the payment of
telegraphic transfers, toll foes, and special message fees. The collections she received
were deposited at the bank account of the DOTC at the Land Bank of the Philippines
(LBP), Baguio City Branch.4
On December 17, 1996, Maria Imelda Lopez, an auditor of the Commission on
Audit (COA), conducted a cash examination of the accounts handled by petitioner as
instructed by her superior, Sherelyn Narag. As a result, Lopez came across deposit
slips dated September 19, 1996 and November 29, 1996 bearing the amounts of
₱11,300.00 and ₱81,348.20, rcspectively.5 Upon close scrutiny, she noticed that said
deposit slips did not bear a stamp of receipt by the LBP nor was it machine validated.
Suspicious about what she found, she and Narag verified all the reports and other
documents turned-over to them by petitioner.6 On the basis of said findings, Narag
sent a letter to the LBP to confirm the remittances made by petitioner. After adding
all the deposits made and upon checking with the teller's blotter, Nadelline Orallo,
the resident auditor of LBP, found that no deposits were made by petitioner for the
account of DOTC on September 19, 1996 for the amount of ₱11,300.00 and
November 29, 1996 for the amount of ₱81,340.20. 7
Thereafter, the LBP's officer-in-charge, Rebecca R. Sanchez, instructed the bank's
teller, Catalina Ngaosi, to conduct their own independent inquiry. It was discovered
its Ifugao office in the Lagawe branch of the LBP.8 This prompted Lopez to write to
petitioner informing her that the two (2) aforesaid remittances were not
acknowledged by the bank. The auditors then found that petitioner duly accounted
for the ₱81,348.20 remittance but not for the ₱11,300.00. Dissatisfied with
petitioner's explanation as to the whereabouts of the said remittance, Narag reported
the matter to the COA Regional Director who, in turn wrote to the LBP for
confirmation. The LBP then denied receiving any ₱11,300.00 deposit on September
19, 1996 from petitioner for the account of the DOTC. 9 Thus, the COA demanded
that she pay the said amount. Petitioner, however, refused. Consequently, the COA
filed a complaint for malversation of public funds against petitioner with the Office
of the Ombudsman for Luzon which, after due investigation, recommended her
indictment for the loss of ₱11,300.00.10 Accordingly, petitioner was charged before
the RTC of Baguio City in an Information, the accusatory portion of which reads:
That on or about September 16, 1996, or sometime prior or subsequent thereto, in the
City of Baguio, Philippines, and within the jurisdiction of this Honourable Court, the
above-named accused, a public officer, being then the Disbursing Officer of the
Department of Transportation and Communications, Baguio City, and as such an
accountable officer, entrusted with and responsible for the amount of ₱1 1,300.00
which accused received and collected for the DOTC, and intended for deposit under
the account of DOTC with the Land Bank of the Philippines-Baguio City, by reason
of her position, while in the performance of her official functions, taking advantage
of her position, did then and there, wilfully, feloniously, and unlawfully
misappropriate or consent, or through abandonment or negligence, permit other
persons to take such amount of ₱11,300.00 to the damage and prejudice of the
government.
CONTRARY TO LAW.11
Upon arraignment on July 31, 1998, petitioner pleaded not guilty to the offense
charged. Hence, trial on the merits ensued.
To establish its case, the prosecution presented the testimonies of two (2) COA
auditors, namely, Maria Lopez and Sherelyn Narag as well as three (3) LBP
employees, namely, Rebecca Sanchez, Catalina Ngaosi, and Nadelline Orallo.12 In
response, the defense presented the lone testimony of petitioner, which can be
summarized as follows:
On September 19, 1996, petitioner and her supervisor, Cecilia Paraiso, went to the
LBP Baguio branch and personally deposited the exact amount of ₱11,300.00 with
accomplished deposit slips in six (6) copies.13 Since there were many clients who
came ahead of her, she decided to go with her usual arrangement of leaving the
money with the teller and telling her that she would just come back to retrieve the
deposit slip. Thus, she handed the money to Teller No. 2, whom she identified as
Catalina Ngaosi. Upon her return at around 3 o'clock in the afternoon, she retrieved
four (4) copies of the deposit slip from Ngaosi. She noticed that the same had no
acknowledgment mark on it. Being contented with the initials of the teller on the
deposit slips, she returned to her office and kept them in her vault. It was only during
the cash count conducted by auditor Lopez when she found out that the said amount
was not remitted to the account of the LBP. When demand was made on her to return
the amount, she requested that she be allowed to pay only after investigation of a
complaint of Estafa that she would file with the National Bureau of Investigation
against some personnel of the bank, particularly Catalina Ngaosi.14 The complaint,
however, was eventually dismissed.15
After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime
charged in the Information. The dispositive portion of the decision states:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered convicting
accused Ophelia Hernan of Malversation and hereby sentences her, after applying the
Indeterminate Sentence Law, to suffer imprisonment from 7 years, 4 months, and 1
day of prision mayor medium period, as minimum, to 11 years, 6 months and 21
days of prision mayor as maximum period to reclusion temporal maximum period,
as maximum, and to pay a fine of ₱11,300.00.
Accused Ophelia Hernan is further sentenced to suffer the penalty of perpetual
special disqualification.
Likewise, accused Ophelia Hernan is hereby ordered to pay back to the government
the amount of ₱11,300.00 plus legal interest thereon at the rate of 12% per annum to
be computed from the date of the filing of the Information up to the time the same is
actually paid.
Costs against the accused.
SO ORDERED.16
Erroneously, petitioner appealed to the Court of Appeals (CA), which affirmed her
conviction but modified the penalty imposed. Upon motion, however, the CA set
aside its decision on the finding that it has no appellate jurisdiction over the case.
Instead, it is the Sandiganbayan which has exclusive appellate jurisdiction over
petitioner occupying a position lower than Salary Grade 27.17 Petitioner's new
counsel, Atty. Leticia Gutierrez Hayes-Allen, then appealed the case to the
Sandiganbayan. In a Decision dated November 13, 2009, the Sandiganbayan
affirmed the RTC's judgment of conviction but modified the penalty imposed, the
dispositive opinion of which reads:
WHEREFORE, in view of all the foregoing, the appealed decision is hereby
AFFIRMED, with the modifications that the indeterminate penalty to be imposed on
the accused should be from 6 years and 1 day of prision mayor as minimum, to 11
years, 6 months, and 21 days of prision mayor as maximum, together with the
accessory penalties under Article 42 of the Revised Penal Code, and that interest of
only 6% shall be imposed on the amount of ₱11,300.00 to be restored by the
accused.
SO ORDERED.18
Petitioner filed a Motion for Reconsideration dated December 21, 2009 alleging that
during the trial before the RTC, her counsel was unable to elicit many facts which
would show her innocence. Said counsel principally failed to present certain
witnesses and documents that would supposedly acquit her from the crime charged.
The Sandiganbayan, however, denied the motion in a Resolution dated August 31,
2010 on the ground that evidence not formally offered before the court below cannot
be considered on appeal.19
On June 26, 2013, the Resolution denying petitioner's Motion for Reconsideration
became final and executory and was recorded in the Book of Entries of
Judgments.20 On July 26, 2013, petitioner's new counsel, Atty. Meshack Macwes,
filed an Urgent Motion to Reopen the Case with Leave of Court and with Prayer to
Stay the Execution.21 In a Resolution22 dated December 4, 2013, however, the
Sandiganbayan denied the motion and directed the execution of the judgment of
conviction. It noted the absence of the following requisites for the reopening of a
case: (1) the reopening must be before finality of a judgment of conviction; (2) the
order is issued by the judge on his own initiative or upon motion; (3) the order is
issued only after a hearing is conducted; (4) the order intends to prevent a
miscarriage of justice; and (5) the presentation of additional and/or further evidence
should be terminated within thirty (30) days from the issuance of the order.23
Unfazed, petitioner filed on January 9, 2014 a Petition for Reconsideration with
Prayer for Recall of Entry of Judgment in lieu of the Prayer for Stay of Execution of
Judgment praying for a reconsideration of the Sandiganbayan' s recent Resolution,
that the case be reopened for further reception of evidence, and the recall of the Entry
of Judgment dated June 26, 2013.24 In a Resolution dated February 2, 2015, the
Sandiganbayan denied the petition for lack of merit. According to the said court, the
motion is clearly a third motion for reconsideration, which is a prohibited pleading
under the Rules of Court. Also, the grounds raised therein were merely a rehash of
those raised in the two previous motions. The claims that the accused could not
contact her counsel on whom she merely relied on for appropriate remedies to be
filed on her behalf, and that she has additional evidence to present, were already
thoroughly discussed in the August 31, 2010 and December 4, 2013 Resolutions.
Moreover, the cases relied upon by petitioner are not on point. 25
On May 14, 2015, petitioner filed the instant petition invoking the following
arguments:
 I.
THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN CONCLUDING THAT THE MOTION TO REOPEN WAS
FILED OUT OF TIME CONSIDERING TI-IE EXTRAORDINARY AND
EXCEPTIONAL CIRCUMSTANCES SURROUNDING THE CASE.
II.
THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THE EVIDENCE INTENDED TO BE
PRESENTED BY PETITIONER SHOULD HER MOTTON FOR REOPENING BE
GRANTED, WAS PASSED UPON BY THE TRIAL COURT.
III.
THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN PRONOUNCING THAT THE MOTION TO REOPEN AND
THE PETITION FOR RECONSIDERATION FILED BY PETITIONER ARE
CONSIDERED AS THE SECOND AND THIRD MOTIONS TO THE DENIAL OF
THE DECISION.
Petitioner posits that her counsel, Atty. Hayes-Allen, never received the August 31,
2010 Resolution of the Sandiganbayan denying her Motion for Reconsideration. This
is because notice thereof was erroneously sent to said counsel's previous office at
Poblacion, La Trinidad, Benguet, despite the fact that it was specifically indicated in
the Motion for Reconsideration that the new office is at the Public Attorney's Office
of Tayug, Pangasinan, following her counsel's appointment as public attorney. Thus,
since her counsel was not properly notified of the subject resolution, the entry of
judgment is premature.26 In support of her assertion, she cites Our ruling in People v.
Chavez,27 wherein We held that an entry of judgment without receipt of the
resolution is premature.
Petitioner also claims that during trial, she could not obtain the necessary evidence
for her defense due to the fact that the odds were against her. Because of this, she
asks the Court to relax the strict application of the rules and consider remanding the
case to the lower court for further reception of evidence.28 In particular, petitioner
seeks the reception of an affidavit of a certain John L. Ziganay, an accountant at the
Depaiiment of Science and Technology (DOST), who previously worked at the
DOTC and COA, as well as two (2) deposit slips. According to petitioner, these
pieces of evidence would show that the ₱11,300.00 deposited at the Lagawe branch
of the LBP was actually the deposit made by petitioner and not by a certain Lanie
Cabacungan, as the prosecution suggests. This is because the ₱11,300.00 deposit
made by Cabacungan consists of two (2) different amounts, which, if proper
accounting procedure is followed, shall be recorded in the bank statement as two (2)
separate amounts and not their total sum of ₱11,300.00. 29 Thus, the Sandiganbayan's
denial of petitioner's motion to reopen the case is capricious, despotic, and whimsical
since the admission of her additional evidence will prevent a miscarriage.
Finally, petitioner denies the Sandiganbayan's ruling that her motion to reopen and
petition for reconsideration are considered as a second and third motion for
reconsideration, and are thus, prohibited pleadings. This is because the additional
evidence she seeks to introduce were not available during the trial of her case.
The petition is devoid of merit.
At the outset, the Court notes that as pointed out by respondent Office of the Special
Prosecutor, petitioner's resort to a petition for certiorari under Rule 65 of the Rules
of Court is an improper remedy. In determining the appropriate remedy or remedies
available, a party aggrieved by a cou1i order, resolution or decision must first
correctly identify the nature of the order, resolution or decision he intends to
assail.30 It bears stressing that the extraordinary remedy of certiorari can be availed
of only if there is no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law.31 If the Order or Resolution sought to be assailed is in the
nature of a final order, the remedy of the aggrieved party would be to file a petition
for review on certiorari under Rule 45 of the Rules of Court. Otherwise, the
appropriate remedy would be to file a petition for certiorari under Rule
65.32 Petitioner, in the instant case, seeks to assail the Sandiganbayan's Resolutions
dated December 4, 2013 and February 2, 2015 wherein said court denied her motion
to reopen the malversation case against her. Said resolutions are clearly final orders
that dispose the proceedings completely. The instant petition for certiorari under
Rule 65 is, therefore, improper.
Even if We assume the propriety of petitioner's chosen action, the Court still cannot
grant the reliefs she prays for, specifically: (1) the reversal of the Sandiganbayan's
December 4, 2013 and February 2, 2015 Resolutions denying her motion to reopen
and petition for reconsideration; (2) the reopening of the case for further reception of
evidence; and (3) the recall of the Entry of Judgment dated June 26, 2013. 33
First of all, there is no merit in petitioner's claim that since her counsel was not
properly notified of the August 31, 2010 Resolution as notice thereof was
erroneously sent to her old office address, the entry of judgment is premature. As the
Court sees it, petitioner has no one but herself to blame. Time and again, the Court
has held that in the absence of a proper and adequate notice to the court of a change
of address, the service of the order or resolution of a court upon the parties must be
made at the last address of their counsel on record.34 It is the duty of the party and his
counsel to device a system for the receipt of mail intended for them, just as it is the
duty of the counsel to inform the court officially of a change in his address. 35 If
counsel moves to another address without informing the court of that change, such
omission or neglect is inexcusable and will not stay the finality of the decision. The
court cannot be expected to take judicial notice of the new address of a lawyer who
has moved or to ascertain on its own whether or not the counsel of record has been
changed and who the new counsel could possibly be or where he probably resides or
holds office.36
Here, it is undisputed that petitioner's counsel failed to inform the court of the change
in her office address from Poblacion, La Trinidad, Benguet, to the Public Attorney's
Office in Tayug, Pangasinan. The fact that said new address was indicated in
petitioner's Motion for Reconsideration does not suffice as "proper and adequate
notice" to the court. As previously stated, courts cannot be expected to take notice of
every single time the counsel of a party changes address. Besides, it must be noted
that petitioner even expressly admitted having received the subject resolution
"sometime in September or October 2010." 37 Easily, she could have informed her
counsel of the same. As respondent posits, it is not as if petitioner had no knowledge
of the whereabouts of her counsel considering that at the time of the filing of her
Motion for Reconsideration, said counsel was already with the PA0. 38 Moreover, the
Court cannot permit petitioner's reliance on the Chavez case because there, petitioner
did not receive the resolution of the Court of Appeals through no fault or negligence
on his paii.39 Here, however, petitioner's non-receipt of the subject resolution was
mainly attributable not only to her counsel's negligence but hers, as well. Thus, the
Court deems it necessary to remind litigants, who are represented by counsel, that
they should not expect that all they need to do is sit back, relax and await the
outcome of their case. They should give the necessary assistance to their counsel for
what is at stake is their interest in the case. It is, therefore, their responsibility to
check the status of their case from time to time.40
To recall, petitioner, on December 21, 2009, filed her Motion for Reconsideration
seeking a reversal of the Sandiganbayan's November 13, 2009 Decision which
affirmed the RTC's ruling convicting her of the crime of malversation. In a
Resolution dated August 31, 2010, the Sandiganbayan denied petitioner's Motion for
Reconsideration. Said resolution became final in the absence of any pleading filed
thereafter, and hence, was recorded in the Book of Entries of Judgments on June 26,
2013. Subsequently, on July 12, 2013, petitioner, through her new counsel, filed
an Urgent Motion to Reopen the Case with Leave of Court and with Prayer to Stay
the Execution, which was denied through the Sandiganbayan's Resolution dated
December 4, 2013.41 Undeterred, petitioner filed her Petition for Reconsideration
with Prayer for Recall of Entry of Judgment in lieu of the Prayer for the Stay of
Execution of Judgement on January 9, 2014 which was likewise denied in the
Sandiganbayan's February 2, 2015 Resolution.
It seems, therefore, that petitioner waited almost an entire three (3) year period from
the denial of her Motion for Reconsideration to act upon the malversation case
against her through the filing of her urgent motion to reopen. In fact, her filing of
said motion may very well be prompted only by her realization that the case has
finally concluded by reason of the entry of judgment. Stated otherwise, the Court is
under the impression that had she not heard of the recording of the August 31, 2010
Resolution in the Book of Entries of Judgments on June 26, 2013, petitioner would
not even have inquired about the status of her case. As respondent puts it, the urgent
motion to reopen appears to have been filed as a substitute for the lost remedy of an
appeal via a petition for review on certiorari before the Court.42 On this inexcusable
negligence alone, the Court finds sufficient basis to deny the instant petition.
Second of all, petitioner's claim that the Sandiganbayan's denial of her motion to
reopen the case is capricious, despotic, and whimsical since the admission of her
additional evidence will prevent a miscarriage has no legal nor factual leg to stand
on. Section 24, Rule 119 and existing jurisprudence provide for the following
requirements for the reopening a case: (l) the reopening must be before the finality of
a judgment of conviction; (2) the order is issued by the judge on his own initiative or
upon motion; (3) the order is issued only after a hearing is conducted; (4) the order
intends to prevent a miscarriage of justice; and (5) the presentation of additional
and/or further evidence should be terminated within thirty days from the issuance of
the order.43
But as the Sandiganbayan ruled, the absence of the first requisite that the reopening
must be before the finality of a judgment of conviction already cripples the
motion.1âwphi1 The records of the case clearly reveal that the August 3l, 2010
Resolution of the Sandiganbayan denying petitioner's Motion for Reconsideration
had already become final and executory and, in fact, was already recorded in the
Entry Book of Judgments on June 26, 2013. Moreover, petitioner's supposed
predicament about her former counsel failing to present witnesses and documents
should have been advanced before the trial court.44 It is the trial court, and neither the
Sandiganbayan nor the Court, which receives evidence and rules over exhibits
formally offered.45 Thus, it was, indeed, too late in the day to advance additional
allegations for petitioner had all the opportunity to do so in the lower court. An
appellate court will generally not disturb the trial court's assessment of factual
matters except only when it clearly overlooked certain facts or where the evidence
fails to substantiate the lower court's findings or when the disputed decision is based
on a misapprehension of facts.46
Ultimately, it bears stressing that the Court does not find that the Sandiganbayan
acted in a capricious, despotic, or whimsical manner when it denied petitioner's
motion to reopen especially in view of the fact that the rulings it seeks to refute are
legally sound and appropriately based on the evidences presented by the parties. On
this score, the elements of malversation of public funds under Article 217 of the
Revised Penal Code (RPC) are: (1) that the offender is a public officer; (2) that he
had the custody or control of funds or property by reason of the duties of his office;
(3) that those funds or property were public funds or prope1iy for which he was
accountable; and (4) that he appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted another person to take them. This
article establishes a presumption that when a public officer fails to have duly
forthcoming any public funds with which he is chargeable, upon demand by any duly
authorized officer, it shall be prima facie evidence that he has put such missing funds
to personal uses.47
As duly found by the trial court, and affinned by the Sandiganbayan, petitioner's
defense that she, together with her supervisor Cecilia Paraiso, went to the LBP and
handed the subject ₱11,300.00 deposit to the teller Ngaosi and, thereafter, had no
idea as to where the money went failed to overcome the presumption of law. For one,
Paraiso was never presented to corroborate her version. For another, when
questioned about the subject deposit, not only did petitioner fail to make the same
readily available, she also could not satisfactorily explain its whereabouts. Indeed, in
the crime of malversation, all that is necessary for conviction is sufficient proof that
the accountable officer had received public funds, that she did not have them in her
possession when demand therefor was made, and that she could not satisfactorily
explain her failure to do so.48 Thus, even if it is assumed that it was somebody else
who misappropriated the said amount, petitioner may still be held liable for
malversation. The Comi quotes, with approval, the trial court's ruling, viz.:
Even if the claim of Hernan, i.e., that she actually left the amount of ₱11,300.00
and the corresponding deposit slip with the Bank Teller Ngaosi and she came
back to retrieve the deposit slip later, is to be believed and then it came out that
the said ₱11,300.00 was not credited to the account of DOTC with the Land
Bank and was in fact missing, still accused Hernan should be convicted of
malversation because in this latter situation she permits through her
inexcusable negligence another person to take the money. And this is still
malversation under Article 217.49
Said ruling was, in fact, duly reiterated by the Sandiganbayan in its Decision, thus:
Shifting our gaze to the possibility that it was the bank teller Catalina Ngaosi who
misappropriated the amount and should therefore be held liable, as the accused
would want to poltray, the Court doubts the tenability of that position. As
consistently ruled by jurisprudence, a public officer may be held liable for
malversation even if he does not use public property or funds under his custody for
his personal benefit, but consents to the taking thereof by another person, or, through
abandonment or negligence, permitted such taking. The accused, by her negligence,
simply created the opportunity for the misappropriation. Even her justification
that her deposits which were not machine-validated were nonetheless
acknowledged by the bank cannot fortify her defense. On the contrary, it all the
more emphasizes her propensity for negligence each time that she accepted
deposit slips which were not machinevalidated, her only proof of receipt of her
deposits. 50
In view of the foregoing, the Court agrees with the Sandiganbayan's finding that
petitioner's motion to reopen and petition for reconsideration are practically second
and third motions for reconsideration from its Decision dated November 13, 2009.
Under the rules, the motions are already prohibited pleadings under Section 5, Rule
37 of the Rules of Court due to the fact that the grounds raised in the petition for
reconsideration are merely a rehash of those raised in the two (2) previous motions
filed before it. These grounds were already thoroughly discussed by the
Sandiganbayan in its subject resolutions. Hence, as duly noted by the
Sandiganbayan, in the law of pleading, courts are called upon to pierce the form and
go into the substance, not to be misled by a false or wrong name given to a pleading
because the title thereof is not controlling and the court should be guided by its
averments.51 Thus, the fact that the pleadings filed by petitioner are entitled Urgent
Motion to Reopen the Case with Leave of Court and with Prayer to Stay
Execution and Petition for Reconsideration with Prayer for Recall of Entry of
Judgment in lieu of the Prayer for Stay of Execution of Judgment does not exempt
them from the application of the rules on prohibited pleadings.
Let it be remembered that the doctrine of finality of judgment is grounded on the
fundamental principle of public policy and sound practice that, at the risk of
occasional error, the judgment of courts and the award of quasi-judicial agencies
must become final on some definite date fixed by law. The only exceptions to the
general rule are the correction of clerical errors, the so-called nunc pro tune entries
which cause no prejudice to any party, void judgments, and whenever circumstances
transpire after the finality of the decision which render its execution unjust and
inequitable.52 None of the exceptions is present in this case.
Indeed, every litigation must come to an end once a judgment becomes final,
executory and unappealable. Just as a losing party has the right to file an appeal
within the prescribed period, the winning party also has the correlative right to enjoy
the finality of the resolution of his case by the execution and satisfaction of the
judgment, which is the "life of the law." To frustrate it by dilatory schemes on the
part of the losing party is to frustrate all the efforts, time and expenditure of the
courts. It is in the interest of justice that this Court should write finis to this
litigation.53
The foregoing notwithstanding, the Court finds that it is still necessary to reopen the
instant case and recall the Entry of Judgment dated June 26, 2013 of the
Sandiganbayan, not for further reception of evidence, however, as petitioner prays
for, but in order to modify the penalty imposed by said court. The general rule is that
a judgment that has acquired finality becomes immutable and unalterable, and may
no longer be modified in any respect even if the modification is meant to correct
erroneous conclusions of fact or law and whether it will be made by the court that
rendered it or by the highest court of the land.54 When, however, circumstances
transpire after the finality of the decision rendering its execution unjust and
inequitable, the Court may sit en bane and give due regard to such exceptional
circumstance warranting the relaxation of the doctrine of immutability. The same is
in line with Section 3(c),55 Rule II of the Internal Rules of the Supreme Court, which
provides that cases raising novel questions of law are acted upon by the Court en
bane. To the Court, the recent passage of Republic Act (R.A.) No. 10951 entitled An
Act Adjusting the Amount or the Value of Property and Damage on which a Penalty
is Based and the Fines Imposed Under the Revised Penal Code Amending for the
Purpose Act No. 3815 Otherwise Known as the "Revised Penal Code" as
Amended which accordingly reduced the penalty applicable to the crime charged
herein is an example of such exceptional circumstance. Section 40 of said Act
provides:
SEC. 40. Article 217 of the same Act, as amended by Republic Act. No. 1060, is
hereby further amended to read as follows:
ART. 217. Malversation of public funds or property; Presumption of malversation. -
Any public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or shall take or misappropriate
or shall consent, through abandonment or negligence, shall permit any other person
to take such public funds, or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of pnswn correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation docs not exceed Forty
thousand pesos (₱40,000.00).
xxxx
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.
Pursuant to the aforequoted provision, therefore, We have here a novel situation
wherein the judgment convicting the accused, petitioner herein, has already become
final and executory and yet the penalty imposed thereon has been reduced by virtue
of the passage of said law. Because of this, not only must petitioner's sentence be
modified respecting the settled rule on the retroactive effectivity of laws, the
sentencing being favorable to the accused,56 she may even apply for probation,57 as
long as she does not possess any ground for disqualification, 58 in view of recent
legislation on probation, or R.A. No. 10707 entitled An Act Amending Presidential
Decree No. 968, otherwise known as the "Probation Law of 1976," As
Amended. allowing an accused to apply for probation in the event that she is
sentenced to serve a maximum term of imprisonment of not more than six (6) years
when a judgment of conviction imposing a non-probationable penalty is appealed or
reviewed, and such judgment is modified through the imposition of a probationable
penalty.59
Thus, in order to effectively avoid any injustice that petitioner may suffer as well as a
possible multiplicity of suits arising therefrom, the Court deems it proper to reopen
the instant case and recall the Entry of Judgment dated June 26, 2013 of the
Sandiganbayan, which imposed the penalty of six (6) years and one (1) day
of prision mayor, as minimum, to eleven (11) years, six (6) months, and twenty-one
(21) days of prision mayor, as maximum. Instead, since the amount involved herein
is ₱11,300.00, which does not exceed ₱40,000.00, the new penalty that should be
imposed is prision correccional in its medium and maximum periods, which has a
prison term of two (2) years, four (4) months, and one (1) day, to six (6) years. The
Court, however, takes note of the presence of the mitigating circumstance of
voluntary surrender appreciated by the Sandiganbayan in favor of
petitioner.60 Hence, taking into consideration the absence of any aggravating
circumstance and the presence of one (1) mitigating circumstance, the range of the
penalty that must be imposed as the maximum term should be prision
correccional medium to prision correccional maximum in its minimum period, or
from two (2) years, four (4) months, and one (1) day, to three (3) years, six (6)
months, and twenty (20) days, in accordance with Article 64 61 of the RPC. Applying
the Indeterminate Sentence Law, the range of the minimum term that should be
imposed upon petitioners is anywhere within the period of arresto mayor, maximum
to prision correccional minimum with a range of four (4) months and one (1) day to
two (2) years and four (4) months. Accordingly, petitioner is sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3)
years, six (6) months, and twenty (20) days prision correccional, as maximum.
On a final note, judges, public prosecutors, public attorneys, private counsels, and
such other officers of the law are hereby advised to similarly apply the provisions of
RA No. 10951 whenever it is, by reason of justice and equity, called for by the facts
of each case. Hence, said recent legislation shall find application in cases where the
imposable penalties of the affected crimes such as theft, qualified theft, estafa,
robbery with force upon things, malicious mischief, malversation, and such other
crimes, the penalty of which is dependent upon the value of the object in
consideration thereof, have been reduced, as in the case at hand, taking into
consideration the presence of existing circumstances attending its commission. For
as long as it is favorable to the accused, said recent legislation shall find application
regardless of whether its effectivity comes after the time when the judgment of
conviction is rendered and even if service of sentence has already begun. The
accused, in these applicable instances, shall be entitled to the benefits of the new law
warranting him to serve a lesser sentence, or to his release, if he has already begun
serving his previous sentence, and said service already accomplishes the term of the
modified sentence. In the latter case, moreover, the Court, in the interest of justice
and expediency, further directs the appropriate filing of an action before the Court
that seeks the reopening of the case rather than an original petition filed for a similar
purpose.
Indeed, when exceptional circumstances exist, such as the passage of the instant
amendatory law imposing penalties more lenient and favorable to the accused, the
Court shall not hesitate to direct the reopening of a final and immutable judgment,
the objective of which is to correct not so much the findings of guilt but the
applicable penalties to be imposed.
Henceforth: (1) the Directors of the National Penitentiary and Correctional
Institution for Women are hereby ordered to determine if there are accused serving
final sentences similarly situated as the accused in this particular case and if there
are, to coordinate and communicate with the Public Attorney's Office and the latter,
to represent and file the necessary pleading before this Court in behalf of these
convicted accused in light of this Court's pronouncement; (2) For those cases where
the accused are undergoing preventive imprisonment, either the cases against them
are non-bailable or cannot put up the bail in view of the penalties imposable under
the old law, their respective counsels are hereby ordered to file the necessary
pleading before the proper courts, whether undergoing trial in the RTC or
undergoing appeal in the appellate courts and apply for bail, for their provisional
liberty; (3) For those cases where the accused are undergoing preventive
imprisonment pending trial or appeal, their respective counsels are hereby ordered to
file the necessary pleading if the accused have already served the minimum sentence
of the crime charged against them based on the penalties imposable under the new
law, R.A. No. 10951, for their immediate release in accordance with A.M. No. 12-
11-2-SC or the Guidelines For Decongesting Holding Jails By Enforcing The Rights
Of Accused Persons To Bail And To Speedy Trial; 62 and (4) Lastly, all courts,
including appellate courts, are hereby ordered to give priority to those cases covered
by R.A. No. 10951 to avoid any prolonged imprisonment.
WHEREFORE, premises considered, the instant petition is DENIED. The
Resolution dated February 2, 2015 and Decision dated November 13, 2009 of the
Sandiganbayan 2nd Division are AFFIRMED with MODIFICATION. Petitioner is
hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto
mayor, as minimum term, to three (3) years, six (6) months, and twenty (20)
days prision correccional, as maximum term.
Let copies of this Decision be furnished to the Office of the Court Administrator
(OCA) for dissemination to the First and Second Level courts, and also to the
Presiding Justices of the appellate courts, the Department of Justice, Office of the
Solicitor General, Public Attorney's Office, Prosecutor General's Office, the
Directors of the National Penitentiary and Correctional Institution for Women, and
the Integrated Bar of the Philippines for their information, guidance, and appropriate
action.
Likewise, let the Office of the President, the Senate of the Philippines, and the House
of Representatives, be furnished copies of this Decision for their information.
SO ORDERED.
G.R. Nos. 112453-56. June 28, 2001
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. GERARDO
LATUPAN y SIBAL, alias JERRY, Accused-Appellant.
DECISION
PARDO, J.:
The case is an appeal from the decision 1 of the Regional Trial Court, Tuao,
Cagayan, Branch 11 convicting Gerardo Latupan y Sibal, alias Jerry of the complex
crime of double murder and sentencing him to life imprisonment and to indemnify
the heirs of the two victims in the amount of fifty thousand (P50,000.00) pesos each.
The court also convicted accused Gerardo Latupan of inflicting physical injuries to
Jaime Asuncion, and sentenced him to ten days imprisonment and to pay two
hundred (P200.00) pesos as indemnity.
On April 13, 1992, Provincial Prosecutor Alejandro A. Pulido of Cagayan filed with
the Regional Trial Court, Tuao, Cagayan four separate informations charging
Gerardo Latupan y Sibal alias Jerry with two counts of frustrated murder and two
counts of murder, committed as follows:
Criminal Case No. 379-T
That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused, Gerardo
Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident
premeditation and with treachery did then and there willfully, unlawfully and
feloniously attack, assault, box, maul, kick and hit with his aforesaid arm one Leo
Asuncion, inflicting upon him injuries on the different parts of his body.
That the accused had performed 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 his own will.
Contrary to law.2cräläwvirtualibräry
Criminal Case No. 380-T
That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused, Gerardo
Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident
premeditation and with treachery did then and there willfully, unlawfully and
feloniously attack, assault, box, maul and kick one, Jaime Asuncion inflicting upon
him injuries on the different parts of his body.
That the accused had performed 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 his own will.
Contrary to law.3cräläwvirtualibräry
Criminal Case No. 381-T
That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused, Gerardo
Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident
premeditation and with treachery did then and there willfully, unlawfully and
feloniously attack, assault and stab one, Jose Asuncion inflicting upon him stab
wound on his body which caused his death.
Contrary to law.4
Criminal Case No. 382-T
That on or about April 29, 1991, in the Municipality of Tuao, Province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused, Gerardo
Latupan alias Jerry, armed with a pointed knife, with intent to kill, with evident
premeditation and with treachery did then and there willfully, unlawfully and
feloniously attack, assault and stab one, Lilia Asuncion inflicting upon her stab
wounds on her body which caused her death.
Contrary to law.5cräläwvirtualibräry
At the arraignment on May 25, 1993, accused pleaded not guilty to the charge of
frustrated murder. 6 During the pre-trial conference of the four cases, accused offered
to change his plea of not guilty to guilty of the complex crime of double murder and
frustrated murder. The prosecution did not interpose any objection. Thus, on July 20,
1993, the trial court re-arraigned the accused. He withdrew his plea of not guilty and
instead pleaded guilty to the single offense of multiple murder with multiple
frustrated murder. 7cräläwvirtualibräry
Thereafter, the trial court ordered the prosecution to present evidence to establish the
culpability of the accused.
The facts are as follows:
On April 29, 1991, at around 4:00 in the afternoon, Ceferino Dagulo (hereafter
Ceferino) was chopping firewood outside his house in Angang, Tuao, Cagayan.
Suddenly, he heard the shouts of a woman and a child coming from the north.
Moments later, Ceferino saw accused Gerardo Latupan y Sibal walking in his
direction, carrying a thin, bloodied knife. Accused Latupan entered the house of
Ceferino and started chasing Ceferinos wife, who was able to run to another house
nearby. Unable to catch Ceferinos wife, accused Latupan turned to Ceferino and
said, I will kill you all. At that time, accused Latupans clothes, chest, hands and legs
were full of blood. Accused Latupan attempted to thrust the knife into Ceferino, who
was able to parry it. Later on, accused Latupan told Ceferino to bring him to the
authorities and tried to give the knife to Ceferino. Ceferino refused to touch the knife
and told accused to go to the authorities by himself. Hearing this advice, accused ran
away.
The house of Emilio Asuncion (hereafter Emy) was 100 meters from Ceferinos
house. At around 4:00 in the afternoon of the same day, Emy Asuncion was returning
to his house from a store. He reached his house and found his wife, Lilia, dead on the
ground with several stab wounds on her body. His one-year old son, Leo, was lying
on top of Lilia Asuncion. Emy picked up Leo and saw that the left side of Leos face
was lacerated. He saw Jaime, his three-year old son and asked where Jose, his eldest
son, was. At that moment, Emy heard the voice of Jose from upstairs of the house,
asking for medicine. He ran upstairs and saw that Jose was wounded. He asked Jose
who stabbed him. Jose replied, Uncle Jerry, Tatang. Seeing that Jose needed
immediate medical treatment, Emy brought him to the house of Ceferino and then
returned to his house to get his two other children, Leo and Jaime. They left the
corpse of Lilia Asuncion inside Emys house.
Lilia Asuncion was the sister of Ceferinos wife.
Meanwhile, Ceferino tried to ask a barangay councilman for assistance. Failing to
obtain assistance, Ceferino went back to his house and found Emy Asuncion and his
children there. Then, Ceferino went to a military camp to borrow a vehicle to bring
the children to the hospital. The military men provided them with a jeep. Thus, the
three children were taken to the Nuestra Seora de Piat Hospital in Cabalansan.
Riding in the jeep were five soldiers, the accused Latupan, Emy Asuncion, Ceferino
Dagulo, Ceferinos wife, and the three children, Leo, Jaime and Jose Asuncion.
During the trip to the hospital, Emys son, Jose, saw accused Latupan inside the jeep.
Jose pointed to accused Latupan as the one who stabbed him.
At the hospital, the doctors treated the injuries of Leo and Jaime. However, the
doctors advised Emy and Ceferino to bring Jose to another hospital due to the
seriousness of his wounds. So, they proceeded to Cagayan Valley Regional Hospital.
Sadly, Jose was dead on arrival. 8 He was only nine years old.
Jaime, 5 year-old son of Emy Asuncion, testified that he was three years old when
the incident occurred. He stated that accused Latupan stabbed his mother, stepped on
him, threw his brother, Leo, outside the window and stabbed his other brother,
Jose. 9cräläwvirtualibräry
After presenting testimonial and documentary evidence, the prosecution rested its
case. The defense did not present any testimonial or documentary evidence, merely
relying on accuseds plea of guilty. Thus, the case was considered submitted for
decision.
On August 25, 1993, the trial court rendered a decision, the dispositive portion of
which reads:
WHEREFORE, finding the accused GERARDO LATUPAN alias JERRY GUILTY
beyond reasonable doubt of the complex offense of Double Murder, the Court hereby
sentences him to suffer life imprisonment and to indemnify the heirs of the two
victims in the amount of P50,000.00 each or a total of P100,000.00.
For the physical injuries suffered by Jaime Asuncion, the accused is sentenced to
suffer ten (10) days imprisonment. Likewise, for the physical injuries suffered by
Leon Asuncion, the accused is also sentenced to suffer ten (10) days imprisonment,
both to be suffered simultaneously with the more grievous sentence of life
imprisonment, plus P200.00 indemnity to each of the two victims.
SO ORDERED.
Given in chambers this 25th day of August, 1993, at Tuao, Cagayan, Philippines.
(sgd.) ORLANDO D. BELTRAN
Judge10cräläwvirtualibräry
Hence, this appeal. 11cräläwvirtualibräry
Accused-appellant pleaded guilty to the single offense of multiple murder with
multiple frustrated murder.
Although this Court has set aside convictions based on plea of guilty in capital
offenses because of improvidence thereof and when such plea is the sole basis of the
condemnatory judgment, the circumstances of this case merit a different result.
Where the trial court receives evidence to determine precisely whether or not the
accused erred in admitting his guilt, the manner in which the plea of guilty is made
(improvidently or not) loses legal significance, for the simple reason that the
conviction is based on the evidence proving the commission by the accused of the
offense charged." 12cräläwvirtualibräry
Crucial to the prosecution is the testimony of the eyewitness, Jaime Asuncion, who
witnessed the incident and even suffered injuries from the unprovoked attack of
accused-appellant. He was familiar with accused-appellant and categorically related
to the court the events that occurred on the afternoon of April 29, 1991. Jaime
narrated how accused-appellant stabbed his mother, threw his brother out of the
window, stepped on him, and stabbed his other brother.
Moreover, accused-appellant was seen not far from the scene of the crime with a
bloodied knife and clothes, and mumbling threats at onlookers, including Ceferino
Dagulo and his wife.
Thus, accused-appellant is liable for the deaths of Lilia and Jose Asuncion, and the
physical injuries of Jaime and Leo Asuncion. From the manner accused attacked the
family, he left them with no means of defense or escape. Considering the treacherous
manner by which the victims were killed, the accused-appellant is liable for murder
and physical injuries.
The trial court, however, erred in convicting accused-appellant of the complex crime
of double murder and separate offenses of serious physical injuries. Article 48 of the
Revised Penal Code provides: "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,
the penalty for the most serious crime shall be imposed, the same to be applied in its
maximum period." The instant case does not fall under any of the two mentioned
instances when a complex crime is committed. 13 The killing of Lilia Asuncion and
Jose Asuncion and the wounding of Jaime and Leo Asuncion resulted not from a
single act but from several and distinct acts of stabbing. "Where the death of two
persons does not result from a single act but from two different shots, two separate
murders, and not a complex crime, are committed." 14cräläwvirtualibräry
Thus, accused-appellant is liable, not for a complex crime of double murder, but for
two separate counts of murder, and separate counts of physical injuries.
Further, the trial court incorrectly assumed that the aggravating circumstance of
evident premeditation was included in the plea of guilty. Qualifying and aggravating
circumstances, which are taken into consideration for the purpose of increasing the
degree of penalty to be imposed, must be proven with equal certainty as the
commission of the act charged as criminal offense. 15cräläwvirtualibräry
Thus, evident premeditation cannot be presumed against accused-appellant. To
warrant a finding of evident premeditation, it must appear not only that the accused
decided to commit the crime prior to the moment of its execution but also that this
decision was the result of meditation, calculation, reflection, or persistent
attempt. 16 In this case, there was no proof, direct or circumstantial, offered by the
prosecution to show when accused-appellant meditated and reflected upon his
decision to kill the victim and the intervening time that elapsed before this plan was
carried out. When it is not shown as to how and when the plan to kill was hatched or
what time had elapsed before it was carried out, evident premeditation cannot be
considered. 17cräläwvirtualibräry
Under Article 248 of the Revised Penal Code, the penalty for murder at the time of
the commission of the crime in April 1991 was reclusion temporal maximum to
death. The trial court convicted accused-appellant of murder and sentenced him to
life imprisonment. The proper imposable penalty is reclusion perpetua, not life
imprisonment. Obviously, the trial court intended to impose reclusion perpetua.
However, the penalty of life imprisonment is not the same as reclusion perpetua.
They are distinct in nature, in duration and in accessory penalties. 18 First, life
imprisonment is imposed for serious offenses penalized by special laws,
while reclusion perpetua is prescribed under the Revised Penal Code. Second, life
imprisonment does not carry with it any accessory penalty. Reclusion perpetua has
accessory penalties. Third, life imprisonment does not appear to have any definite
extent or duration, while reclusion perpetua entails imprisonment for at least thirty
(30) years after which the convict becomes eligible for pardon, although the
maximum period thereof shall in no case exceed forty (40)
years. 19cräläwvirtualibräry
We likewise note that the trial court sentenced accused to ten days of imprisonment
for each count of slight physical injuries. We reiterate the rule that it is necessary for
the courts to employ the proper legal terminology in the imposition of penalties
because of the substantial difference in their corresponding legal effects and
accessory penalties. 20 The appropriate name of the penalty must be specified
inasmuch as under the scheme of penalties in the Revised Penal Code, the principal
penalty for a felony has its own specific duration and corresponding accessory
penalties. 21 Thus, the courts must employ the proper nomenclature specified in the
Revised Penal Code, such as reclusion perpetua, not life imprisonment or ten days of
arresto menor, not ten days of imprisonment.
Hence, the proper penalty for each murder committed in April 1991, considering the
absence of aggravating and mitigating circumstances, is reclusion perpetua, with its
accessory penalties. Further, accused-appellant is liable for two counts of slight
physical injuries and must be sentenced to twenty (20) days of arresto
menor, each, likewise with its accessory penalties under the Revised Penal
Code. 22cräläwvirtualibräry
We sustain the trial courts award of fifty thousand (P50,000.00) pesos as death
indemnity for each of the victims. No further proof is necessary other than the fact of
death of the victim and the accuseds responsibility therefor. 23 In addition, we award
moral damages in the amount of P50,000.00 pesos for each victim, without need of
proof of consequent physical suffering and mental anguish of the heirs of the victims,
in line with recent rulings. 24cräläwvirtualibräry
WHEREFORE , the Court AFFIRMS the decision of the Regional Trial Court,
Tuao, Cagayan, Branch 11 in Criminal Case Nos. 112453-56 with
MODIFICATION. The accused-appellant Gerardo Latupan y Sibal is convicted of
two counts of murder, for the death of Lilia Asuncion and Jose Asuncion, and is
sentenced to reclusion perpetua in each case, and to indemnify the heirs of Lilia and
Jose Asuncion in the amount of P50,000.00 pesos, each case, and in addition thereto,
the amount of P50,000.00 pesos, each case, as moral damages. Accused-appellant is
further convicted of two counts of slight physical injuries and is sentenced to twenty
(20) days of arresto menor, in each case, plus P2,000.00 pesos as indemnity to each
of the two victims, Jaime and Leo Asuncion.
Costs against accused-appellant.
SO ORDERED.
G.R. No. 206666 January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO
ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to
Rule 65, both of the Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-
Vidal), which essentially prays for the issuance of the writ of certiorari annulling and
setting aside the April 1, 20131 and April 23, 20132 Resolutions of the Commission
on Elections (COMELEC), Second Division and En bane, respectively, in SPA No.
13-211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for
having been rendered with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (2) a Petition-in-Intervention3 filed by Alfredo S. Lim (Lim),
wherein he prays to be declared the 2013 winning candidate for Mayor of the City of
Manila in view of private respondent former President Joseph Ejercito Estrada’s
(former President Estrada) disqualification to run for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former President Estrada, a
former President of the Republic of the Philippines, for the crime of plunder in
Criminal Case No. 26558, entitled "People of the Philippines v. Joseph Ejercito
Estrada, et al." The dispositive part of the graft court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in
Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito
Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in
and penalized by Republic Act No. 7080, as amended. On the other hand, for failure
of the prosecution to prove and establish their guilt beyond reasonable doubt, the
Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the Court hereby orders their
ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No. 7080, as
amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being no
aggravating or mitigating circumstances, however, the lesser penalty shall be applied
in accordance with Article 63 of the Revised Penal Code. Accordingly, the accused
Former President Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of
Reclusion Perpetua and the accessory penalties of civil interdiction during the period
of sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph Ejercito Estrada has been
under detention shall be credited to him in full as long as he agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by
Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the
government of the following:
(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred
Ninety[-]One Thousand Pesos (₱545,291,000.00), with interest and income
earned, inclusive of the amount of Two Hundred Million Pesos
(₱200,000,000.00), deposited in the name and account of the Erap Muslim
Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million Pesos
(₱189,000,000.00), inclusive of interests and income earned, deposited in
the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed as "Boracay
Mansion" located at #100 11th Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S.
Serapio are hereby ordered cancelled and released to the said accused or their duly
authorized representatives upon presentation of the original receipt evidencing
payment thereof and subject to the usual accounting and auditing procedures.
Likewise, the hold-departure orders issued against the said accused are hereby
recalled and declared functus oficio.4
On October 25, 2007, however, former President Gloria Macapagal Arroyo (former
President Arroyo) extended executive clemency, by way of pardon, to former
President Estrada. The full text of said pardon states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing inmates who have reached
the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half
years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO ESTRADA,
convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion
Perpetua. He is hereby restored to his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full, including
all writs and processes issued by the Sandiganbayan in pursuance hereof, except for
the bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon
shall take effect.
Given under my hand at the City of Manila, this 25th Day of October, in the year of
Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada "received and
accepted"6 the pardon by affixing his signature beside his handwritten notation
thereon.
On November 30, 2009, former President Estrada filed a Certificate of
Candidacy7 for the position of President. During that time, his candidacy earned
three oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny
Due Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao
Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for "Disqualification as
Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No.
09-104 (DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from Running as
President due to Constitutional Disqualification and Creating Confusion to the
Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate
Resolutions8 dated January 20, 2010 by the COMELEC, Second Division, however,
all three petitions were effectively dismissed on the uniform grounds that (i) the
Constitutional proscription on reelection applies to a sitting president; and (ii) the
pardon granted to former President Estrada by former President Arroyo restored the
former’s right to vote and be voted for a public office. The subsequent motions for
reconsideration thereto were denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections, however, former
President Estrada only managed to garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought recourse to this
Court and filed a petition for certiorari, which was docketed as G.R. No. 191988,
entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada and
Commission on Elections." But in a Resolution9 dated August 31, 2010, the Court
dismissed the aforementioned petition on the ground of mootness considering that
former President Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more ventured into the political
arena, and filed a Certificate of Candidacy,10 this time vying for a local elective post,
that ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for
Disqualification against former President Estrada before the COMELEC. The
petition was docketed as SPA No. 13-211 (DC). Risos Vidal anchored her petition on
the theory that "[Former President Estrada] is Disqualified to Run for Public Office
because of his Conviction for Plunder by the Sandiganbayan in Criminal Case No.
26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing
Him to Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute
Disqualification."11 She relied on Section 40 of the Local Government Code (LGC),
in relation to Section 12 of the Omnibus Election Code (OEC), which state
respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence; (b) Those
removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to
the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgmentfor
subversion, insurrection, rebellion, or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any public office, unless
he has been given plenary pardon or granted amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the
petition for disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for
utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance
of the consolidated resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC)
and the 10 May 2010 En Banc resolution affirming it, this Commission will not be
labor the controversy further. Moreso, [Risos-Vidal] failed to present cogent proof
sufficient to reverse the standing pronouncement of this Commission declaring
categorically that [former President Estrada’s] right to seek public office has been
effectively restored by the pardon vested upon him by former President Gloria M.
Arroyo. Since this Commission has already spoken, it will no longer engage in
disquisitions of a settled matter lest indulged in wastage of government resources." 13
The subsequent motion for reconsideration filed by Risos-Vidal was denied in a
Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present
petition. She presented five issues for the Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S
PARDON WAS NOT CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS
DISQUALIFIED TO RUN AS MAYOR OF MANILA UNDER SEC. 40
OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN
CONVICTED OF PLUNDER, AN OFFENSE INVOLVING MORAL
TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE PETITION FOR
DISQUALIFICATION ON THE GROUND THAT THE CASE
INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY
RESOLVED IN THE CASES OF "PORMENTO VS. ESTRADA", SPA
NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA
EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.," SPA
NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S
PARDON NEITHER RESTORED HIS RIGHT OF SUFFRAGE NOR
REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION
FROM SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT HAVING EXERCISED ITS POWER TO MOTU
PROPRIO DISQUALIFY RESPONDENT ESTRADA IN THE FACE OF
HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE
BECAUSE OF HIS PERPETUAL AND ABSOLUTE
DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO VOTE
RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER.14
While this case was pending beforethe Court, or on May 13, 2013, the elections were
conducted as scheduled and former President Estrada was voted into office with
349,770 votes cast in his favor. The next day, the local board of canvassers
proclaimed him as the duly elected Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s opponents for the position
of Mayor, moved for leave to intervene in this case. His motion was granted by the
Court in a Resolution15 dated June 25, 2013. Lim subscribed to Risos-Vidal’s theory
that former President Estrada is disqualified to run for and hold public office as the
pardon granted to the latter failed to expressly remit his perpetual disqualification.
Further, given that former President Estrada is disqualified to run for and hold public
office, all the votes obtained by the latter should be declared stray, and, being the
second placer with 313,764 votes to his name, he (Lim) should be declared the
rightful winning candidate for the position of Mayor of the City of Manila.
The Issue
Though raising five seemingly separate issues for resolution, the petition filed by
Risos-Vidal actually presents only one essential question for resolution by the Court,
that is, whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former President Estrada is
qualified to vote and be voted for in public office as a result of the pardon granted to
him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the pardon
granted to former President Estrada was conditional as evidenced by the latter’s
express acceptance thereof. The "acceptance," she claims, is an indication of the
conditional natureof the pardon, with the condition being embodied in the third
Whereas Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office." She explains
that the aforementioned commitment was what impelled former President Arroyo to
pardon former President Estrada, without it, the clemency would not have been
extended. And any breach thereof, that is, whenformer President Estrada filed his
Certificate of Candidacy for President and Mayor of the City of Manila, he breached
the condition of the pardon; hence, "he ought to be recommitted to prison to serve
the unexpired portion of his sentence x x x and disqualifies him as a candidate for the
mayoralty [position] of Manila." 16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former
President Estrada mustbe disqualified from running for and holding public elective
office is actually the proscription found in Section 40 of the LGC, in relation to
Section 12 ofthe OEC. She argues that the crime of plunder is both an offense
punishable by imprisonment of one year or more and involving moral turpitude; such
that former President Estrada must be disqualified to run for and hold public elective
office.
Even with the pardon granted to former President Estrada, however, Risos-Vidal
insists that the same did not operate to make available to former President Estrada
the exception provided under Section 12 of the OEC, the pardon being merely
conditional and not absolute or plenary. Moreover, Risos-Vidal puts a premium on
the ostensible requirements provided under Articles 36 and 41 of the Revised Penal
Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to
hold publicoffice, or the right of suffrage, unless such rights be expressly restored by
the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity
imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.–
The penalties of reclusion perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the sentence as the case may be,
and that of perpetual absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not enough that a
pardon makes a general statement that such pardon carries with it the restoration of
civil and political rights. By virtue of Articles 36 and 41, a pardon restoring civil and
political rights without categorically making mention what specific civil and political
rights are restored "shall not work to restore the right to hold public office, or the
right of suffrage; nor shall it remit the accessory penalties of civil interdiction and
perpetual absolute disqualification for the principal penalties of reclusion perpetua
and reclusion temporal."17 In other words, she considers the above constraints as
mandatory requirements that shun a general or implied restoration of civil and
political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla
and Florentino P. Feliciano in Monsanto v. Factoran, Jr. 18 to endorse her position that
"[t]he restoration of the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently pardoned, cannot be left to
inference, no matter how intensely arguable, but must be statedin express, explicit,
positive and specific language."
Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that
"such express restoration is further demanded by the existence of the condition in the
[third] [W]hereas [C]lause of the pardon x x x indubitably indicating that the
privilege to hold public office was not restored to him." 19
On the other hand, the Office ofthe Solicitor General (OSG) for public respondent
COMELEC, maintains that "the issue of whether or not the pardon extended to
[former President Estrada] restored his right to run for public office had already been
passed upon by public respondent COMELEC way back in 2010 via its rulings in
SPA Nos. 09-024, 09-028 and 09-104, there is no cogent reason for it to reverse its
standing pronouncement and declare [former President Estrada] disqualified to run
and be voted as mayor of the City of Manila in the absence of any new argument that
would warrant its reversal. To be sure, public respondent COMELEC correctly
exercised its discretion in taking judicial cognizance of the aforesaid rulings which
are known toit and which can be verified from its own records, in accordance with
Section 2, Rule 129 of the Rules of Court on the courts’ discretionary power to take
judicial notice of matters which are of public knowledge, orare capable of
unquestionable demonstration, or ought to be known to them because of their judicial
functions."20
Further, the OSG contends that "[w]hile at first glance, it is apparent that [former
President Estrada’s] conviction for plunder disqualifies him from running as mayor
of Manila under Section 40 of the [LGC], the subsequent grant of pardon to him,
however, effectively restored his right to run for any public office." 21 The restoration
of his right to run for any public office is the exception to the prohibition under
Section 40 of the LGC, as provided under Section 12 of the OEC. As to the seeming
requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the pardon, the OSG asserts
that "an airtight and rigid interpretation of Article 36 and Article 41 of the [RPC] x x
x would be stretching too much the clear and plain meaning of the aforesaid
provisions."22 Lastly, taking into consideration the third Whereas Clause of the
pardon granted to former President Estrada, the OSG supports the position that it "is
not an integral part of the decree of the pardon and cannot therefore serve to restrict
its effectivity."23
Thus, the OSG concludes that the "COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions."24
For his part, former President Estrada presents the following significant arguments to
defend his stay in office: that "the factual findings of public respondent COMELEC,
the Constitutional body mandated to administer and enforce all laws relative to the
conduct of the elections, [relative to the absoluteness of the pardon, the effects
thereof, and the eligibility of former President Estrada to seek public elective office]
are binding [and conclusive] on this Honorable Supreme Court;" that he "was
granted an absolute pardon and thereby restored to his full civil and political rights,
including the right to seek public elective office such as the mayoral (sic) position in
the City of Manila;" that "the majority decision in the case of Salvacion A. Monsanto
v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both Vidal and Lim as
authority for their respective claims, x x x reveal that there was no discussion
whatsoever in the ratio decidendi of the Monsanto case as to the alleged necessity for
an expressed restoration of the ‘right to hold public office in the pardon’ as a legal
prerequisite to remove the subject perpetual special disqualification;" that moreover,
the "principal question raised in this Monsanto case is whether or not a public
officer, who has been granted an absolute pardon by the Chief Executive, is entitled
to reinstatement toher former position without need of a new appointment;" that his
"expressed acceptance [of the pardon] is not proof that the pardon extended to [him]
is conditional and not absolute;" that this case is a mere rehash of the casesfiled
against him during his candidacy for President back in 2009-2010; that Articles 36
and 41 of the Revised Penal Code "cannot abridge or diminish the pardoning power
of the President expressly granted by the Constitution;" that the text of the pardon
granted to him substantially, if not fully, complied with the requirement posed by
Article 36 of the Revised Penal Code as it was categorically stated in the said
document that he was "restored to his civil and political rights;" that since pardon is
an act of grace, it must be construed favorably in favor of the grantee; 25 and that his
disqualification will result in massive disenfranchisement of the hundreds of
thousands of Manileños who voted for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully restored allhis
civil and political rights, which naturally includes the right to seek public elective
office, the focal point of this controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous, and unqualified. It is likewise
unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the Revised Penal Code. Recall that
the petition for disqualification filed by Risos-Vidal against former President
Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the LGC,
in relation to Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving moral turpitude,
former President Estrada must be disqualified to run for and hold public elective
office notwithstanding the fact that he is a grantee of a pardon that includes a
statement expressing "[h]e is hereby restored to his civil and political rights." Risos-
Vidal theorizes that former President Estrada is disqualified from running for Mayor
of Manila inthe May 13, 2013 Elections, and remains disqualified to hold any local
elective post despite the presidential pardon extended to him in 2007 by former
President Arroyo for the reason that it (pardon) did not expressly provide for the
remission of the penalty of perpetual absolute disqualification, particularly the
restoration of his (former President Estrada) right to vote and bevoted upon for
public office. She invokes Articles 36 and 41 of the Revised Penal Code as the
foundations of her theory.
It is insisted that, since a textual examination of the pardon given to and accepted by
former President Estrada does not actually specify which political right is restored, it
could be inferred that former President Arroyo did not deliberately intend to restore
former President Estrada’s rights of suffrage and to hold public office, orto otherwise
remit the penalty of perpetual absolute disqualification. Even if her intention was the
contrary, the same cannot be upheld based on the pardon’s text.
The pardoning power of the President cannot be limited by legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article
IX-C, provides that the President of the Philippines possesses the power to grant
pardons, along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a majority of
all the Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of
election laws, rules, and regulations shall be granted by the President without the
favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the only instances in
which the President may not extend pardon remain to be in: (1) impeachment cases;
(2) cases that have not yet resulted in a final conviction; and (3) cases involving
violations of election laws, rules and regulations in which there was no favorable
recommendation coming from the COMELEC. Therefore, it can be argued that any
act of Congress by way of statute cannot operate to delimit the pardoning power of
the President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the
1935 Constitution,wherein the provision granting pardoning power to the President
shared similar phraseology with what is found in the present 1987 Constitution, the
Court then unequivocally declared that "subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or controlled by legislative
action." The Court reiterated this pronouncement in Monsanto v. Factoran,
Jr.29 thereby establishing that, under the present Constitution, "a pardon, being a
presidential prerogative, should not be circumscribed by legislative action." Thus, it
is unmistakably the long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.
This doctrine of non-diminution or non-impairment of the President’s power of
pardon by acts of Congress, specifically through legislation, was strongly adhered to
by an overwhelming majority of the framers of the 1987 Constitution when they
flatly rejected a proposal to carve out an exception from the pardoning power of the
President in the form of "offenses involving graft and corruption" that would be
enumerated and defined by Congress through the enactment of a law. The following
is the pertinent portion lifted from the Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an
amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of corrupt practices
laws may be limited by legislation.
I suggest that this be deletedon the grounds that, first, violations of corrupt practices
may include a very little offense like stealing ₱10; second, which I think is more
important, I get the impression, rightly or wrongly, that subconsciously we are
drafting a constitution on the premise that all our future Presidents will bebad and
dishonest and, consequently, their acts will be lacking in wisdom. Therefore, this
Article seems to contribute towards the creation of an anti-President Constitution or a
President with vast responsibilities but no corresponding power except to declare
martial law. Therefore, I request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of Commissioner
Davide because of the fact that similar to the provisions on the Commission on
Elections, the recommendation of that Commission is required before executive
clemency isgranted because violations of the election laws go into the very political
life of the country.
With respect to violations of our Corrupt Practices Law, we felt that it is also
necessary to have that subjected to the same condition because violation of our
Corrupt Practices Law may be of such magnitude as to affect the very economic
systemof the country. Nevertheless, as a compromise, we provided here that it will
be the Congress that will provide for the classification as to which convictions will
still require prior recommendation; after all, the Congress could take into account
whether or not the violation of the Corrupt Practices Law is of such magnitude as to
affect the economic life of the country, if it is in the millions or billions of dollars.
But I assume the Congress in its collective wisdom will exclude those petty crimes of
corruption as not to require any further stricture on the exercise of executive
clemency because, of course, there is a whale of a difference if we consider a lowly
clerk committing malversation of government property or funds involving one
hundred pesos. But then, we also anticipate the possibility that the corrupt practice of
a public officer is of such magnitude as to have virtually drained a substantial portion
of the treasury, and then he goes through all the judicial processes and later on, a
President who may have close connections with him or out of improvident
compassion may grant clemency under such conditions. That is why we left it to
Congress to provide and make a classification based on substantial distinctions
between a minor act of corruption or an act of substantial proportions. SR. TAN. So,
why do we not just insert the word GROSS or GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a better distinction because
"GRAVE" or "GROSS" can be misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is essentially an executive
power, and that is precisely why it is called executive clemency. In this sentence,
which the amendment seeks to delete, an exception is being made. Congress, which
is the legislative arm, is allowed to intrude into this prerogative of the executive.
Then it limits the power of Congress to subtract from this prerogative of the
President to grant executive clemency by limiting the power of Congress to only
corrupt practices laws. There are many other crimes more serious than these. Under
this amendment, Congress cannot limit the power of executive clemency in cases of THE PRESIDENT. Commissioner Sarmiento is recognized.
drug addiction and drug pushing which are very, very serious crimes that can
endanger the State; also, rape with murder, kidnapping and treason. Aside from the MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.
fact that it is a derogation of the power of the President to grant executive clemency,
it is also defective in that it singles out just one kind of crime. There are far more
Madam President, over and over again, we have been saying and arguing before this
serious crimes which are not included.
Constitutional Commission that we are emasculating the powers of the presidency,
and this provision to me is another clear example of that. So, I speak against this
MR. REGALADO. I will just make one observation on that. We admit that the provision. Even the 1935 and the 1973 Constitutions do not provide for this kind of
pardoning power is anexecutive power. But even in the provisions on the provision.
COMELEC, one will notice that constitutionally, it is required that there be a
favorable recommendation by the Commission on Elections for any violation of
I am supporting the amendment by deletion of Commissioner Tan.
election laws.
MR. ROMULO. Commissioner Tingson would like to be recognized.
At any rate, Commissioner Davide, as the principal proponent of that and as a
member of the Committee, has explained in the committee meetings we had why he
sought the inclusion of this particular provision. May we call on Commissioner THE PRESIDENT. Commissioner Tingson is recognized.
Davide to state his position.
MR. TINGSON. Madam President, I am also in favor of the amendment by deletion
MR. DAVIDE. Madam President. because I am in sympathy with the stand of Commissioner Francisco "Soc" Rodrigo.
I do believe and we should remember that above all the elected or appointed officers
of our Republic, the leader is the President. I believe that the country will be as the
THE PRESIDENT. Commissioner Davide is recognized.
President is, and if we systematically emasculate the power of this presidency, the
time may come whenhe will be also handcuffed that he will no longer be able to act
MR. DAVIDE. I am constrained to rise to object to the proposal. We have just like he should be acting.
approved the Article on Accountability of Public Officers. Under it, it is mandated
that a public office is a public trust, and all government officers are under obligation
So, Madam President, I am in favor of the deletion of this particular line.
to observe the utmost of responsibility, integrity, loyalty and efficiency, to lead
modest lives and to act with patriotism and justice.
MR. ROMULO. Commissioner Colayco would like to be recognized.
In all cases, therefore, which would go into the verycore of the concept that a public
office is a public trust, the violation is itself a violation not only of the economy but THE PRESIDENT. Commissioner Colayco is recognized.
the moral fabric of public officials. And that is the reason we now want that if there
is any conviction for the violation of the Anti-Graft and Corrupt Practices Act, MR. COLAYCO. Thank you very much, Madam President.
which, in effect, is a violation of the public trust character of the public office, no
pardon shall be extended to the offender, unless some limitations are imposed. I seldom rise here to object to or to commend or to recommend the approval of
proposals, but now I find that the proposal of Commissioner Tan is worthy of
Originally, my limitation was, it should be with the concurrence of the convicting approval of this body.
court, but the Committee left it entirely to the legislature to formulate the mechanics
at trying, probably, to distinguish between grave and less grave or serious cases of Why are we singling out this particular offense? There are other crimes which cast a
violation of the Anti-Graft and Corrupt Practices Act. Perhaps this is now the best bigger blot on the moral character of the public officials.
time, since we have strengthened the Article on Accountability of Public Officers, to
accompany it with a mandate that the President’s right to grant executive clemency Finally, this body should not be the first one to limit the almost absolute power of
for offenders or violators of laws relating to the concept of a public office may be our Chief Executive in deciding whether to pardon, to reprieve or to commute the
limited by Congress itself. sentence rendered by the court.

MR. SARMIENTO. Madam President.

I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be recognized, and after him
will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been
called the Anti-Graft Court, so if this is allowed to stay, it would mean that the
President’s power togrant pardon or reprieve will be limited to the cases decided by
the Anti-Graft Court, when as already stated, there are many provisions inthe
Revised Penal Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the case merits the
consideration of the exercise of executive clemency, usually under Article V of the
Revised Penal Code the judge will recommend such exercise of clemency. And so, I
am in favor of the amendment proposed by Commissioner Tan for the deletion of
this last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will again chip more
powers from the President. In case of other criminals convicted in our society, we
extend probation to them while in this case, they have already been convicted and we
offer mercy. The only way we can offer mercy to them is through this executive
clemency extended to them by the President. If we still close this avenue to them,
they would be prejudiced even worse than the murderers and the more vicious killers
in our society. I do not think they deserve this opprobrium and punishment under the
new Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to submit this to the
floor and also because of the objection of the main proponent, Commissioner
Davide. So we feel that the Commissioners should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed amendment of
Commissioner Tan to delete the last sentence of Section 17 appearing on lines 7, 8
and 9, please raise their hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (Few Members raised their hand.)
The results show 34 votes in favor and 4 votes against; the amendment is
approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons convicted of violating
penal statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles
contain specific textual commands which must be strictly followed in order to free
the beneficiary of presidential grace from the disqualifications specifically prescribed
by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to
hold publicoffice, or the right of suffrage, unless such rights be expressly restored by
the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity
imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.–
The penalties of reclusion perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the sentence as the case may be,
and that of perpetual absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by Risos-
Vidal, is unwarranted, especially so if it will defeat or unduly restrict the power of
the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation. Verba legis non est recedendum. From the words of
a statute there should be no departure.31 It is this Court’s firm view that the phrase in
the presidential pardon at issue which declares that former President Estrada "is
hereby restored to his civil and political rights" substantially complies with the
requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was
no express remission and/or restoration of the rights of suffrage and/or to hold public
office in the pardon granted to former President Estrada, as required by Articles 36
and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal provisions must be
followed by the President, as they do not abridge or diminish the President’s power
to extend clemency. He opines that they do not reduce the coverage of the
President’s pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only
provide a procedural prescription. They are not concerned with areas where or the
instances when the President may grant pardon; they are only concerned with how he
or she is to exercise such power so that no other governmental instrumentality needs
to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in
the pardon the restoration of the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute disqualification,he or she
should do so expressly. Articles 36 and 41 only ask that the President state his or her
intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the point,
the President retains the power to make such restoration or remission, subject to a
prescription on the manner by which he or she is to state it. 32
With due respect, I disagree with the overbroad statement that Congress may dictate
as to how the President may exercise his/her power of executive clemency. The form
or manner by which the President, or Congress for that matter, should exercise their
respective Constitutional powers or prerogatives cannot be interfered with unless it is
so provided in the Constitution. This is the essence of the principle of separation of
powers deeply ingrained in our system of government which "ordains that each of
the three great branches of government has exclusive cognizance of and is supreme
in matters falling within its own constitutionally allocated sphere." 33 Moreso, this
fundamental principle must be observed if noncompliance with the form imposed by
one branch on a co-equal and coordinate branch will result into the diminution of an
exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in
a way that will give full effect to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that may serve to impair or
diminish the import of the pardon which emanated from the Office of the President
and duly signed by the Chief Executive himself/herself. The said codal provisions
must be construed to harmonize the power of Congress to define crimes and
prescribe the penalties for such crimes and the power of the President to grant
executive clemency. All that the said provisions impart is that the pardon of the
principal penalty does notcarry with it the remission of the accessory penalties unless
the President expressly includes said accessory penalties in the pardon. It still
recognizes the Presidential prerogative to grant executive clemency and, specifically,
to decide to pardon the principal penalty while excluding its accessory penalties or to
pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided
upon by the President on the penalties imposedin accordance with law.
A close scrutiny of the text of the pardon extended to former President Estrada shows
that both the principal penalty of reclusion perpetua and its accessory penalties are
included in the pardon. The first sentence refers to the executive clemency extended
to former President Estrada who was convicted by the Sandiganbayan of plunder and
imposed a penalty of reclusion perpetua. The latter is the principal penalty pardoned
which relieved him of imprisonment. The sentence that followed, which states that
"(h)e is hereby restored to his civil and political rights," expressly remitted the
accessory penalties that attached to the principal penalty of reclusion perpetua.
Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is
indubitable from the textof the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly remitted together
with the principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is recognized by law as
falling under the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship
Retention and Reacquisition Act of 2003," reads as follows:
Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions: (1) Those intending to exercise their right
of suffrage must meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear an oath
of allegiance to the Republic of the Philippines and its duly constituted
authorities prior to their assumption of office: Provided, That they renounce
their oath of allegiance to the country where they took that oath; (4) Those
intending to practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the
country of which theyare naturalized citizens; and/or
(b) are in active service as commissioned or non commissioned
officers in the armed forces of the country which they are
naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and Political Rights, to which the
Philippines is a signatory, acknowledges the existence of said right. Article 25(b) of
the Convention states: Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court
unequivocally referred to the right to seek public elective office as a political right, to
wit:
Stated differently, it is an additional qualification for elective office specific only to
Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225.
It is the operative act that restores their right to run for public office. The petitioner’s
failure to comply there with in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian Citizenship she executed
on September 18, 2006. As such, she is yet to regain her political right to seek
elective office. Unless she executes a sworn renunciation of her Australian
citizenship, she is ineligible to run for and hold any elective office in the Philippines.
(Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted tohim,
he regained his FULL civil and political rights – including the right to seek elective
office.
On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said
penal provisions; and prescribes a formal requirement that is not only unnecessary
but, if insisted upon, could be in derogation of the constitutional prohibition relative
to the principle that the exercise of presidential pardon cannot be affected by
legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v.
Factoran, Jr.36 to justify her argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and that the penalty of perpetual
absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned views of
Justices Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do
not form partof the controlling doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the majority opinion in Monsanto, penned
by no less than Chief Justice Marcelo B. Fernan, reveals no statement that denotes
adherence to a stringent and overly nuanced application of Articles 36 and 41 of the
Revised Penal Code that will in effect require the President to use a statutorily
prescribed language in extending executive clemency, even if the intent of the
President can otherwise be deduced from the text or words used in the pardon.
Furthermore, as explained above, the pardon here is consistent with, and not contrary
to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the LGC in
relation to Section 12 of the OEC was removed by his acceptance of the absolute
pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any elective
local position. Risos-Vidal argues that former President Estrada is disqualified under
item (a), to wit:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for
an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given plenary pardon or
granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction
for plunder disqualifies him from running for the elective local position of Mayor of
the City of Manila under Section 40(a) of the LGC. However, the subsequent
absolute pardon granted to former President Estrada effectively restored his right to
seek public elective office. This is made possible by reading Section 40(a) of the
LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the LGC is worded
in absolute terms, Section 12 of the OEC provides a legal escape from the
prohibition – a plenary pardon or amnesty. In other words, the latter provision allows
any person who has been granted plenary pardon or amnesty after conviction by final
judgment of an offense involving moral turpitude, inter alia, to run for and hold any
public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates running for
local elective positions is not unprecedented. In Jalosjos, Jr. v. Commission on
Elections,37 the Court acknowledged the aforementioned provision as one of the legal
remedies that may be availed of to disqualify a candidate in a local election filed any
day after the last day for filing of certificates of candidacy, but not later than the date
of proclamation.38 The pertinent ruling in the Jalosjos case is quoted as follows:
What is indisputably clear is that false material representation of Jalosjos is a ground
for a petition under Section 78. However, since the false material representation
arises from a crime penalized by prision mayor, a petition under Section 12 ofthe
Omnibus Election Code or Section 40 of the Local Government Code can also be
properly filed. The petitioner has a choice whether to anchor his petition on Section
12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local
Government Code. The law expressly provides multiple remedies and the choice of
which remedy to adopt belongs to petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to make the pardon
conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e.,
"[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office," neither makes the pardon conditional, nor militate against
the conclusion that former President Estrada’s rights to suffrage and to seek public
elective office have been restored.
This is especially true as the pardon itself does not explicitly impose a condition or
limitation, considering the unqualified use of the term "civil and political rights"as
being restored. Jurisprudence educates that a preamble is not an essential part of an
act as it is an introductory or preparatory clause that explains the reasons for the
enactment, usually introduced by the word "whereas." 40 Whereas clauses do not form
part of a statute because, strictly speaking, they are not part of the operative language
of the statute.41 In this case, the whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt of COMELEC
Commissioner Maria Gracia Padaca’s separate concurring opinion in the assailed
April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which
captured the essence of the legal effect of preambular paragraphs/whereas clauses,
viz:
The present dispute does not raise anything which the 20 January 2010 Resolution
did not conclude upon. Here, Petitioner Risos-Vidal raised the same argument with
respect to the 3rd "whereas clause" or preambular paragraph of the decree of pardon.
It states that "Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office." On this contention, the undersigned reiterates the ruling
of the Commission that the 3rd preambular paragraph does not have any legal or
binding effect on the absolute nature of the pardon extended by former President
Arroyo to herein Respondent. This ruling is consistent with the traditional and
customary usage of preambular paragraphs. In the case of Echegaray v. Secretary of
Justice, the Supreme Court ruled on the legal effect of preambular paragraphs or
whereas clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely an introduction
to show its intent or purposes. It cannot be the origin of rights and obligations.
Where the meaning of a statute is clear and unambiguous, the preamble can neither
expand nor restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on
Respondent’s promise never to seek a public office again, the former ought to have
explicitly stated the same in the text of the pardon itself. Since former President
Arroyo did not make this an integral part of the decree of pardon, the Commission is
constrained to rule that the 3rd preambular clause cannot be interpreted as a
condition to the pardon extended to former President Estrada. 42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s silence on former President
Estrada’s decision torun for President in the May 2010 elections against, among
others, the candidate of the political party of former President Arroyo, after the
latter’s receipt and acceptance of the pardon speaks volume of her intention to
restore him to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the President is
in issue, the Court must turn to the only evidence available to it, and that is the
pardon itself. From a detailed review ofthe four corners of said document, nothing
therein gives an iota of intimation that the third Whereas Clause is actually a
limitation, proviso, stipulation or condition on the grant of the pardon, such that the
breach of the mentioned commitment not to seek public office will result ina
revocation or cancellation of said pardon. To the Court, what it is simply is a
statement of fact or the prevailing situation at the time the executive clemency was
granted. It was not used as a condition to the efficacy orto delimit the scope of the
pardon.
Even if the Court were to subscribe to the view that the third Whereas Clausewas one
of the reasons to grant the pardon, the pardon itself does not provide for the attendant
consequence of the breach thereof. This Court will be hard put to discern the
resultant effect of an eventual infringement. Just like it will be hard put to determine
which civil or political rights were restored if the Court were to take the road
suggested by Risos-Vidal that the statement "[h]e is hereby restored to his civil and
political rights" excludes the restoration of former President Estrada’s rights to
suffrage and to hold public office. The aforequoted text ofthe executive clemency
granted does not provide the Court with any guide asto how and where to draw the
line between the included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for resolution is not
whether the pardon is contingent on the condition that former President Estrada will
not seek janother elective public office, but it actually concerns the coverage of the
pardon – whether the pardon granted to former President Estrada was so expansive
as to have restored all his political rights, inclusive of the rights of suffrage and to
hold public office. Justice Leonen is of the view that the pardon in question is not
absolute nor plenary in scope despite the statement that former President Estrada is
"hereby restored to his civil and political rights," that is, the foregoing statement
restored to former President Estrada all his civil and political rights except the rights
denied to him by the unremitted penalty of perpetual absolute disqualification made
up of, among others, the rights of suffrage and to hold public office. He adds that had
the President chosen to be so expansive as to include the rights of suffrage and to
hold public office, she should have been more clear on her intentions.
However, the statement "[h]e is hereby restored to his civil and political rights," to
the mind of the Court, iscrystal clear – the pardon granted to former President
Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in
scope, complete and plenary in character, as the term "political rights"adverted to has
a settled meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission of the
qualifying word "full" can be construed as excluding the restoration of the rights of
suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term "political rights" used alone
without any qualification. How to ascribe to the latter term the meaning that it is
"partial" and not "full" defies one’s understanding. More so, it will be extremely
difficult to identify which of the political rights are restored by the pardon, when the
text of the latter is silent on this matter. Exceptions to the grant of pardon cannot be
presumed from the absence of the qualifying word "full" when the pardon restored
the "political rights" of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the pardon granted to
former President Estrada was absolute in the absence of a clear, unequivocal and
concrete factual basis upon which to anchor or support the Presidential intent to grant
a limited pardon.
To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand
close scrutiny even under the provisions of Articles 36 and 41 of the Revised Penal
Code.
The COMELEC did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC
did not commit grave abuse of discretion amounting to lack or excess of jurisdiction
in issuing the assailed Resolutions.
The Court has consistently held that a petition for certiorariagainst actions of the
COMELEC is confined only to instances of grave abuse of discretion amounting to
patentand substantial denial of due process, because the COMELEC is presumed to
be most competent in matters falling within its domain.43
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of
power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or
capricious exercise of power that amounts to an evasion or refusal to perform a
positive duty enjoined by law or to act at all in contemplation of law. For an act to be
condemned as having been done with grave abuse of discretion, such an abuse must
be patent and gross.44
The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual
or legal bases to prove that the assailed COMELEC Resolutions were issued in a
"whimsical, arbitrary or capricious exercise of power that amounts to an evasion
orrefusal to perform a positive duty enjoined by law" or were so "patent and gross"
as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it unnecessary to
separately discuss Lim's petition-in-intervention, which substantially presented the
same arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-inintervention are
DISMISSED. The Resolution dated April 1, 2013 of the Commission on Elections,
Second Division, and the Resolution dated April 23, 2013 of the Commission on
Elections, En bane, both in SPA No. 13-211 (DC), are AFFIRMED.
SO ORDERED.
G.R. No. 199527
PEOPLE OF THE PHILIPPINES, thru Private Complainant BRIAN VICTOR
BRITCHFORD, Petitioner
vs.
SALVADOR ALAPAN, Respondent
DECISION
MARITRES, J.:
This is a petition for review on certiorari assailing the Resolution, dated 22
November 2011, of the Court of Appeals (CA) in CA-G.R. SP No. 118333, which
dismissed the petition seeking the imposition of subsidiary imprisonment for
nonpayment of fine in eight (8) cases of violation of Batas Pambansa Bilang 22 (B.P.
Blg. 22).
THE FACTS
In an Information, dated 26 May 2006, respondent Salvador Alapan (respondent) and
his wife Myrna Alapan (Myrna) were charged with eight (8) counts of violation of
B.P. Blg. 22. Upon arraignment on 1 September 2006, they pleaded not guilty to the
charges.
In August 2005, the Spouses Alapan borrowed ₱400,000.00 from petitioner Brian
Victor Britchford (petitioner) with a promise that they would pay the said amount
within three (3) months. To secure the indebtedness, respondent issued eight (8)
postdated checks.
When the checks matured, petitioner deposited then at the Philippine National
Bank (PNB), Olongapo City branch. One week thereafter, PNB informed petitioner
that the checks were dishonored for the reason that the account against which the
checks were drawn was closed. Petitioner immediately informed respondent of the
dishonor of the checks.
On their part, the Spouses Alapan averred that their account was closed only on the
last week of October 2005 because they suffered business reverses. They nonetheless
stated that they were willing to settle their monetary obligation.
The MTC Ruling
In a decision,1 dated 4 February 2009, the Municipal Trial Court, San Felipe,
Zambales (MTC), convicted respondent of eight (8) counts of violation of B.P. Big.
22. It imposed a penalty of fine instead of imprisonment considering that
respondent's act of issuing the bounced checks was not tainted with bad faith and that
he was a first-time offender. On the other hand, the MTC acquitted Myrna because
she did not participate in the issuance of the dishonored checks. The fallo reads:
WHEREFORE, the Court finds the evidence of the prosecution to have established
the guilt of Accused Salvador Alapan of the eight (8) counts of Violation of B.P. Blg.
22 and imposes upon the aforenamed accused to pay a fine of ₱30,000.00 for each
case or total of ₱240,000.00 and to indemnify the offended party, Mr. Brian Victor
Britchford the sum of FOUR HUNDRED ELEVEN THOUSAND (₱411,000.00)
Philippine Currency, representing the face value of the dishonored checks, with legal
interest per annum commencing from March 8, 2006, when demand was made, until
fully paid, and to pay attorney's fees of ₱15,000.00 and to pay the costs.2
After the MTC judgment became final and executory, a writ of execution was issued.
The writ, however, was returned unsatisfied. Petitioner thus filed a Motion to Impose
Subsidiary Penalty3 for respondent's failure to pay the fine imposed by the MTC.
In its Order,4 dated 24 September 2010, the MTC denied the motion on the ground
that subsidiary imprisonment in case of insolvency was not imposed in the judgment
of convicion.
Aggrieved, petitioner filed an appeal before the Regional Trial Court, Branch 69, Iba,
Zambales (RTC).
The RTC Ruling
In a decision,5 dated 25 January 2011, the RTC dismissed the appeal for lack of
jurisdiction. It held that respondent could not be made to undergo subsidiary
imprisonment because the judgment of conviction did not provide for such penalty in
case of non-payment of fine. The RTC further opined that the MTC decision which
already attained finality could no longer be altered or modified. It disposed the case
in this wise:
IN VIEW THEREOF, the appeal is DISMISSED for lack of jurisdiction. 6
Undeterred, petitioner filed a petition for review before the CA.
The CA Ruling
In a Resolution, dated 22 November 2011, the CA dismissed the petition. It ruled
that the petition was filed without the intervention of the Office of the Solicitor
General (OSG) which was contrary to Section 35, Chapter 12, Title III, Book IV of
the Administrative Code. The dispositive portion reads:
In view of the foregoing and finding the Manifestation (in lieu of Comment) filed by
the OSG to be well-founded, the petition is hereby DISMISSED pursuant to Section
3, Rule 43 of the 1997 Rules of Court.7
Hence, this petition.
ISSUES
I. WHETHER PETITIONER MAY ASSAIL THE PENALTY IMPOSED IN THE
JUDGMENT OF CONVICTION;
II. WHETHER RESPONDENT MAY UNDERGO SUBSIDIARY
IMPRISONMENT FOR FAILURE TO PAY THE FINE.
Petitioner argues that Section 35, Chapter 12, Title III, Book IV of the
Administrative Code is applicable only in cases wherein the government or any of its
branches or instrumentalities is directly involved; that the said law does not cover
matters wherein it is the interest of the private complainant that is directly affected;
and that Administrative Circular No. 13-2001 expressly states that there is no legal
obstacle to the application of the Revised Penal Code (RPC) provisions on subsidiary
imprisonment should only a fine be imposed and the accused be unable to pay the
fine.8
In his comment, respondent counters, citing Gonzales v. Chavez, 9 that it is
mandatory upon the OSG to represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of a lawyer; that it is only
the State, through its appellate counsel, the OSG, which has the sole right and
authority to institute criminal proceedings before the Court of Appeals or the
Supreme Court;10 that the imposition or the non-imposition of subsidiary penalty is a
matter that involves the interest of the State, thus, the private offended party is
without legal personality to bring an appeal on the criminal aspect of the case; and
that the imposition of subsidiary imprisonment must be clearly stated in the
judgment.11
In his reply, petitioner avers that Administrative Circular No. 13-2001 categorically
implies that subsidiary imprisonment could be resorted to even if the penalty
provided by the trial court is limited only to fine; and that the imposition of
subsidiary imprisonment would emphasize the gravity of the offense committed by
respondent and would serve as a deterrent to others not to emulate this malicious
act.12
OUR RULING
Petitioner lacks legal standing to question the trial court's order.
In the appeal of criminal cases before the Court of Appeals or the Supreme Court, the
authority to represent the People is vested solely in the Solicitor General. This power
is expressly provided in Section 35, Book IV, Title III, Chapter 12 of the Revised
Administrative Code.13 Without doubt, the OSG is the appellate counsel of the
People of the Philippines in all criminal cases.14
Jurisprudence has already settled that the interest of the private complainant is
limited only to the civil liability arising from the crime.1âwphi1 Thus, in Bautista v.
Cuneta-Pangilinan, 15 the Court ruled:
Thus, the Court has definitively ruled that in a criminal case in which the offended
party is the State, the interest of the private complainant or the private offended party
is limited to the civil liability arising therefrom. If a criminal case is dismissed by the
trial court or if there is an acquittal, an appeal of the criminal aspect may be
undertaken, whenever legally feasible, only by the State through the solicitor general.
As a rule, only the Solicitor General may represent the People of the Philippines on
appeal. The private offended party or complainant may not undertake such appeal. 16
In this case, respondent was convicted of eight (8) counts of violation of B.P. Blg. 22
for which he was imposed the penalty of fine instead of imprisonment pursuant to
Administrative Circulars No. 12-2000 and 13- 2001. Thus, the penalty of fine and the
imposition of subsidiary imprisonment in case of nonpayment thereof pertain to the
criminal aspect of the case. On the other hand, the indemnification for the face value
of the dishonored checks refers to the civil aspect of the case. Consequently
petitioner could not appeal the imposition of fine as penalty which was not even
questioned by the People through the OSG. "While a private prosecutor may be
allowed to intervene in criminal proceedings on appeal in the Court of Appeals or the
Supreme Court, his participation is subordinate to the interest of the People, hence,
he cannot be permitted to adopt a position contrary to that of the Solicitor General.
To do so would be tantamount to giving the private prosecutor the direction and
control of the criminal proceeding, contrary to the provisions of law." 17 Hence, the
CA properly dismissed the petition for review.
Subsidiary imprisonment in case of insolvency must be expressly stated in the
judgment of conviction.
Another reason which militates against petitioner's position is the lack of provision
pertaining to subsidiary imprisonment in the judgment of conviction. People v.
Fajardo, 18 in relation to Republic Act. No. 5465 which amended Article 39 of the
RPC, discusses the rationale behind the necessity for expressly imposing subsidiary
imprisonment in the judgment of conviction, viz:
The first paragraph of article 39 of the Revised Penal Code reads as follows:
ART. 39. Subsidiary penalty. - If the convict has no property with which to meet the
fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a
subsidiary personal liability at the rate of one day for each eight pesos, subject to the
following rules: ...
Article 78 of Chapter V of the same Code, in its pertinent part, which deals with the
execution and service of penalties, provides:
ART. 78. When and how a penalty is to be executed. - No penalty shall executed
except by virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed by law, nor
with any other circumstances or incidents than those expressly authorized thereby.
It is a fundamental principle consecration in section 3 of the Jones Law, the Act of
Congress of the United States of America approved on August 29, 1916, which was
still in force when the order appealed from was made, that no person may be
deprived of liberty without due process of law. This constitutional provision was in a
sense incorporated in article 78 of the Revised Penal Code prescribing that no
penalty shall be executed except by virtue of a final judgment. As the fact show that
there is no judgment sentencing the accused to suffer subsidiary imprisonment in
case of insolvent to pay the fine imposed upon him, because the said subsidiary
imprisonment is not stated in the judgment finding him guilty, it is clear that the
court could not legally compel him to serve said subsidiary imprisonment. A
contrary holding would be a violation of the laws aforementioned. That subsidiary
imprisonment is a penalty, there can be no doubt, for, according to article 39 of the
Revised Penal Code, it is imposed upon the accused and served by him in lieu of the
fine which he fails to pay on account of insolvency. There is not a single provision in
the Code from which it may be logically inferred that an accused may automatically
be made to serve subsidiary imprisonment in a case where he has been sentenced
merely to pay a fine and has been found to be insolvent. Such would be contrary to
the legal provisions above-cited and to the doctrine laid down in United States vs.
Miranda (2 Phil., 606, 610), in which it was said: "That judgment of the lower court
fails to impose subsidiary imprisonment in case of insolvency for indemnification to
the owner of the banca, but only imposes subsidiary punishment as to the costs. In
this respect the judgment is erroneous and should be modified."
We, therefore, conclude that an accused who has been sentenced by final judgment
to pay a fine only and is found to be insolvent and could not pay the fine for this
reason, cannot be compelled to serve the subsidiary imprisonment provided for in
article 39 of the Revised Penal Code. [emphasis supplied]19
Indeed, Administrative Circular No. 13-2001 provides that "should only a fine be
imposed and the accused be unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary imprisonment."
However, the Circular does not sanction indiscriminate imposition of subsidiary
imprisonment for the same must still comply with the law.
Here, the judgment of conviction did not provide subsidiary imprisonment in case of
failure to pay the penalty of fine. Thus, subsidiary imprisonment may not be imposed
without violating the RPC and the constitutional provision on due process.
The final and executory decision of the MTC can no longer be modified.
Finally, the time-honored doctrine of immutability of judgment precludes
modification of a final and executory judgment:
A decision that has acquired finality becomes immutable and unalterable. This
quality of immutability precludes the modification of a final judgment, even if the
modification is meant to correct erroneous conclusions of fact and law. And this
postulate holds true whether the modification is made by the court that rendered it or
by the highest court in the land. The orderly administration of justice requires that, at
the risk of occasional errors, the judgments/resolutions of a court must reach a point
of finality set by the law. The noble purpose is to write finis to dispute once and for
all. This is a fundamental principle in our justice system, without which there would
be no end to litigations. Utmost respect and adherence to this principle must always
be maintained by those who exercise the power of adjudication. Any act, which
violates such principle, must immediately be struck down. Indeed, the principle of
conclusiveness of prior adjudications is not confined in its operation to the judgments
of what are ordinarily known as courts, but extends to all bodies upon which judicial
powers had been conferred.
The only exceptions to the rule on the immutability of final judgments are (1) the
correction of clerical errors, (2) the so-called nunc pro tune entries which cause no
prejudice to any party, and (3) void Judgments. 20
There is no doubt that the MTC decision has long attained finality and that none of
the aforementioned exceptions finds application in this case. Hence, the MTC
decision stands and any other question involving the said decision must now be put
to rest.
WHEREFORE, the petition is DENIED. The 22 November 2011 Resolution of the
Court of Appeals in CA-G.R. SP No. 118333 is AFFIRMED.
SO ORDERED.
G.R. No. 195244 June 22, 2015
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ALVIN ESUGON y AVILA, Accused-Appellant.
DECISION
BERSAMIN, J.:
Every child is presumed qualified to be a witness. The party challenging the child's
competency as a witness has the burden of substantiating his challenge.
Under review is the decision promulgated on July 23, 2010, 1 whereby the Court of
Appeals (CA) affirmed with modification the conviction of the appellant for the
composite crime of robbery with homicide handed down by the Regional Trial Court
(RTC), Branch 211, in Mandaluyong City through its judgment rendered on January
27, 2006.2
Antecedents
The information charged the appellant with robbery with homicide, alleging as
follows:
That on or about the 22nd day of October 2003, in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, with intent to gain, with the use of a bladed weapon, by means of force and
violence, did, then and there, willfully, unlawfully and feloniously take, steal and
carry away cash money amounting to ₱13,000.00 belonging to JOSEPHINE
CASTRO y BARRERA, to the damage and prejudice of the latter; that by reason or
on occasion of said robbery, accused did, then and there willfully, unlawfully and
feloniously attack, assault and stab with the said bladed weapon said JOSEPHINE
CASTRO y BARRERA, thereby inflicting upon her physical injuries which directly
caused her death.
CONTRARY TO LAW.3
The CA adopted the RTC’s summation of the evidence of the Prosecution, to wit:
Carl or Muymoy, 5-year old son of the victim, testified that on the night of the
incident, he, his younger sister Cheche, and his mother and father, were sleeping on
the ground floor of their house. He saw appellant, whom he calls "Nonoy," enter
their house and stab her mother with a knife, while he (Carl) peeped through a chair.
Although there was no light at the ground floor, there was light upstairs. After his
mother got stabbed, his father chased the appellant. Carl saw blood come out of his
mother’s lower chest. His father then brought her to the hospital. Carl positively
identified the appellant, a neighbor who often goes to their house, as the one who
stabbed his mother. On cross-examination, he related that the assailant took money
from his father’s pocket. He likewise admitted that he did not see very well the
perpetra tor because there was no light (TSN, February 24, 2004, pp. 3, 11-23, 28,
30-32).
Upon being asked by the trial court, Carl stated that although there was no light when
his mother was stabbed, he was sure of what he saw since there was light at their
second floor, which illumined the ground floor through the stairway (TSN, February
24, 2004, pp. 33-34).
Insp. Marquez, who autopsied the body, related that the cause of the victim’s death
was hemorrhagic shock due to stab wound. The wound was located at the epigastric
region, measuring 2.8 x 0.5 cm, 4 cm from left of the anterior midline, 13 cm deep,
directed posterior and upward, piercing the right ventricle of the hear t, thoracic aorta
and lower lobe of the left lung (TSN, April 21, 2004, pp. 1, 6; Exh. "I," Records, p.
103).
Next to testify was Dennis, husband of the victim. He narrated that he and the victim
were married for nine years before the incident and that they have four children:
Monica, 11 years old; Mary Joy, 9 years old; Carl, 5 years old; and Cherry Ann, 7
months old. At about 9 p.m. on October 21, 2003, he and his wife were sleeping
downstairs in their sala, with their baby, while their other children slept upstairs.
Their sala measures 3 by 3 meters. At around 2 a.m., his son Carl woke up crying
and went downstairs to sleep with them. Fifteen to thirty minutes later, he heard
someone shout "magnanakaw!" [H]e turned on the light and saw that their door was
open. He got their bolo and ran outside. When he did not see anybody, he returned
and heard his wife moaning. He embraced and carried her and saw blood on her
back. He shouted for help and his brother-in law helped him bring the victim to the
hospital where she eventually died. He spent ₱23,000.00 for the funeral and The appellant’s mother corroborated his version.5
₱44,500.00 for the wake and burial. On cross-examination, he admitted that he has
no personal knowledge as to who stabbed his wife since he did not actually see the Judgment of the RTC
perpetrator and that it was his son who saw the appellant (TSN, August 25, 2004, pp.
3 12; October 6, 2004, pp. 5-6; November 17, 2004, pp. 3-4).
As mentioned, the RTC pronounced the appellant guilty of the crime charged under
its judgment rendered on January 27, 2006,6 disposing:
Sharon, sister-in-law of the victim, testified that she and her husband were sleeping
upstairs when they were roused from their sleep at around 2 a.m. of October 22, 2003 WHEREFORE, premises considered, finding the accused ALVIN ESUGON y
by Dennis’ cry for help. She saw that there was blood on the victim’s chest. After the
AVILA @ "NONOY" GUILTY beyond reasonable doubt of the crime of
victim was brought to the hospital, she noticed that the victim’s children were
ROBBERY WITH HOMICIDE under Article 293 and punished under Article 294
trembling in fear and were crying. They got outside and went to the billiard hall in
(1) of the Revised Penal Code, the court hereby sentences him to Reclusion Perpetua
front of their house. She took Carl and had him sit on her lap. Then Carl said, "Tita,
and to indemnify the heirs of JOSEPHINE CASTRO y BARRERA as follows:
sya pasok bahay namin" pointing to someone but she did not see who it was since
there were many people passing by. Later, the police asked Carl whether he saw
somebody enter their house and he answered yes and demonstrated how his mother 1) ₱50,000.00 civil indemnity;
was stabbed. Carl also said that the person who stabbed his mother was present in the
vicinity. He then pointed to appellant and said " siya po yung pumaso k sa bahay 2) ₱57,500.00 as actual damages;
namin." As a resident there, appellant often goes to the billiard hall and sometimes
watches the television at the house of the victim (TSN, February 9, 2005, pp. 3-14). 3) ₱50,000.00 as moral damages.

PO1 Fabela also testified that after it was reported to him that there was a stabbing SO ORDERED.7
incident, he went to the hospital then to the crime scene and interviewed the persons
thereat. Later, Carl pinpointed and positively identified the appellant as the one who Decision of the CA
stabbed his mother and robbed them of their money. Appellant was arrested and
brought to the police station (TSN, March 16, 2005, pp. 2, 5-6).
On appeal, the appellant argued that the RTC erred in finding him guilty beyond
reasonable doubt of the composite crime of robbery with homicide based solely on
PO2 Sazon meanwhile testified that while he was questioning people in the area, the testimony of Carl, a 5-year old witness whose recollections could only be the
Carl pointed to them the suspect who was one of the bystanders. They were asking product of his imagination.8
Carl questions when he suddenly blurted out that it was appellant who entered their
house and stabbed his mother. They invited the appellant to the police station but the
On July 23, 2010, however, the CA, giving credence to the child witness, and
latter denied having committed the crime. On cross-examination, the witness
opining that his inconsistencies did not discredit his testimony, affirmed the
admitted that their basis in arresting appellant was the information relayed by Carl
conviction of the appellant,9 ruling thusly:
(TSN, April 27, 2005, pp. 2, 12-17; June 15, 2005, p. 5).4

WHEREFORE, the appeal is DENIED for lack of merit. The Decision dated January
In turn, the appellant denied the accusation. According to him, he had frequented the
27, 2006 of the Regional Trial Court, Branch 211 of Mandaluyong City in Crim.
victim’s billiard hall, which was situated only four houses away from where he lived,
Case No. MC03-7597, is hereby AFFIRMED with the MODIFICATION in that the
and, on the evening in question, he had been the last to leave the billiard hall at 11 o’
award of ₱57,500.00 as actual damages should be DELETED and in lieu thereof,
clock p.m. and had then gone home. He recalled that he had been roused from
temperate damages in the amount of ₱25,000.00 should be AWARDED the heirs of
slumber by screams for help around two o’clock a.m., prompting him to ask his
Josephine Castro y Barrera.
mother for the key to the door; that he had then gone outside where he learned of the
killing of the victim; that police officers had later on approached him to inquire what
he knew about the killing because they told him that Carl, the young son of the SO ORDERED.10
victim, had pointed to him as the perpetrator, making him the primary suspect; that
he had replied that he had had nothing to do with the crime; and that he had assured Issues
the police officers that he had never been involved in any wrongdoing in his years of
living in the neighborhood.
In this appeal, the appellant posits that the adverse testimony of the 5-year old Carl,
being filled with inconsistencies, was not credible, but doubtful; that unlike him, his
sisters, who were then at the second floor of the house, were not roused from sleep;
that contrary to Carl’s recollection, the place was not even dark when the stabbing
attack on the victim occurred because his father said that he had turned the light on
upon hearing somebody shouting " Magnanakaw!;" and that his father had then
gotten his bolo, and gone outside the house.11
Moreover, the appellant maintains that the Prosecution did not prove that violence or
intimidation was employed in the course of the robbery. He argues that he could not
be held liable for robbery by using force upon things considering that the culprit had
neither broken any wall, roof, floor, door or window to gain entry in the house nor
entered the house through an opening not intended for entrance. If at all, he could be
liable only for the separate crimes of theft and homicide, not of the composite crime
of robbery with homicide.12
The Office of the Solicitor General (OSG) counters that the evidence showed that the
appellant’s principal intent had been to rob the victim’s house, with the homicide
being perpetrated as a mere incident of the robbery; and that Carl positively
identified the appellant as the person who had stabbed the victim, his identification
bearing "all the earmarks of credibility especially when he has no motive for lying
about the identity of the accused."13
Ruling of the Court
The appeal is bereft of merit.
The most important task of the St ate in the successful prosecution of the accused is
his credible and competent identification as the perpetrator of the crime. Hence, this
appeal turns on whether or not the identification of the appellant as the perpetrator of
the robbery with homicide was credible and competent considering that the
identifying witness was Carl, a 5-year old lad, whose sole testimony positively
pointed to and incriminated the appellant as the person who had entered their home,
robbed the family, and killed his mother.
The qualification of a person to testify rests on the ability to relate to others the acts
and events witnessed. Towards that end, Rule 130 of the Rules of Court makes clear
who may and may not be witnesses in judicial proceedings, to wit:
Section 20. Witnesses; their qualifications. - Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make known
their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a
crime unless otherwis e provided by law, shall not be a ground for disqualification.
(l8 a)
Section 21. Disqualification by reason of mental incapacity or immaturity. - The
following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known
their perception to others;
(b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating
them truthfully. (19a)
As the rules show, anyone who is sensible and aware of a relevant event or incident,
and can communicate such awareness, experience, or observation to others can be a
witness. Age, religion, ethnicity, gender, educational attainment, or social stat us are
not necessary to qualify a person to be a witness, so long as he does not possess any
of the disqualifications as listed the rules. The generosity with which the Rules of
Court allows people to testify is apparent, for religious beliefs, interest in the
outcome of a case, and conviction of a crime unless otherwise provided by law are
not grounds for disqualification.14
That the witness is a child cannot be the sole reason for disqualification. The
dismissiveness with which the testimonies of child witnesses were treated in the past
has long been erased. Under the Rule on Examination of a Child Witness (A.M. No.
004-07-SC 15 December 2000), every child is now presumed qualified to be a
witness. To rebut this presumption, the burden of proof lies on the party challenging
the child’s competency. Only when substantial doubt exists regarding the ability of
the child to perceive ,remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court will the court, motu proprio or on motion
of a party, conduct a competency examination of a child. 15
The assessment of the credibility of witnesses is within the province of the trial
court.16 All questions bearing on the credibility of witnesses are best addressed by
the trial court by virtue of its unique position to observe the crucial and often
incommunicable evidence of the witnesses’ deportment while testifying, something
which is denied to the appellate court because of the nature and function of its office.
The trial judge has the unique advantage of actually examining the real and
testimonial evidence, particularly the demeanor of the witnesses. Hence, the trial
judge’s assessment of the witnesses’ testimonies and findings of fact are accorded
great respect on appeal. In the absence of any substantial reason to justify the
reversal of the trial court’s assessment and conclusion, like when no significant facts
and circumstances are shown to have been overlooked or disregarded, the reviewing
court is generally bound by the former’s findings. The rule is even more stringently
applied if the appellate court has concurred with the trial court.17
The appellant did not object to Carl’s competency as a witness. He did not attempt to
adduce evidence to challenge such competency by showing that the child was
incapable of perceiving events and of communicating his perceptions, or that he did
not possess the basic qualifications of a competent witness. After the Prosecution
terminated its direct examination of Carl, the appellant extensively tested his direct
testimony on cross-examination. All that the Defense did was to attempt to discredit
the testimony of Carl, but not for once did the Defense challenge his capacity to
distinguish right from wrong, or to perceive, or to communicate his perception to the
trial court. Consequently, the trial judge favorably determined the competency of
Carl to testify against the appellant.
The appellant points to inconsistencies supposedly incurred by Carl. That is
apparently not disputed. However, it seems clear that whatever inconsistencies the
child incurred in his testimony did not concern the principal occurrence or the
elements of the composite crime charged but related only to minor and peripheral
matters. As such, their effect on his testimony was negligible, if not nil, because the
inconsistencies did not negate the positive identification of the appellant as the
perpetrator. Also, that Carl did not shout to seek help upon witnessing how the
appellant had stabbed his mother to death did not destroy his credibility. For sure, he
could not be expected to act and to react to what happened like an adult. Although
children have different levels of intelligence and different degrees of perception, the
determination of their capacity to perceive and of their ability to communicate their
perception to the courts still pertained to the trial court, because it concerned a
factual issue and should not be disturbed on appeal in the absence of a strong
showing of mistake or misappreciation on the part of the trial court.18
It is true that an appeal in a criminal case like this one opens the record of the trial
bare and open. Even so, the finding of facts by the trial court are still entitled to great
respect especially when affirmed on appeal by the CA.19This great respect for such
findings rests mainly on the trial court’s direct and personal access to the witnesses
while they testify in its presence, giving them the unique opportunity to observe their
manner and decorum during intensive grilling by the counsel for the accused, and to
see if the witnesses were fidgeting and prevaricating, or sincere and trustworthy.
With both the RTC and the CA sharing the conviction on Carl’s credibility, his
capacity to perceive and his ability to communicate his perception, we cannot depart
from their common conclusion. Moreover, according credence to Carl’s testimony
despite his tender age would not be unprecedented. In People v. Mendiola, 20 the
Court considered a 6-y ear-old victim competent, and regarded her testimony against
the accused credible. In Dulla v. Court of Appeals,21 the testimony of the three-year-
old victim was deemed acceptable. As such, Carl’s testimony was entitled to full
probative weight.
Carl positively identified the appellant as the culprit during the investigation and
during the trial. Worthy to note is that the child could not have been mistaken about
his identification of him in view of his obvious familiarity with the appellant as a
daily presence in the billiard room maintained by the child’s family. Verily, the
evidence on record overwhelmingly showed that the appellant, and no other, had
robbed and stabbed the victim.
The appellant contends that robbery was not proved beyond reasonable doubt; that to
sustain a conviction for robbery with homicide, the robbery itself must be proven as
conclusively as the other essential element of the crime; and that it was not
established that the taking of personal property was achieved by means of violence
against or intimidation of any person or by using force upon things.
The contention lacks persuasion.
To sustain a conviction for robbery with homicide, the Prosecution must prove the
concurrence of the following elements, namely: (1) the taking of personal property
belonging to another; (2) with intent to gain; (3) with the use of violence or
intimidation against a person; and (4) the crime of homicide, as used in the generic
sense, was committed on the occasion or by reason of the robbery. 22 A conviction
requires certitude that the robbery is the main objective of the malefactor, and the
killing is merely incidental to the robbery.23
The CA has indicated that the appellant carried a long-bladed weapon. The fact that
the appellant was armed with the long-bladed weapon, which was undoubtedly a
deadly weapon, competently proved the presence of violence or intimidation against
persons that qualified the offense as robbery instead of theft. For sure, too, the patent
intent of the appellant was originally to commit robbery, with the homicide being
committed only in the course or on the occasion of the perpetration of the robbery.
As the records show, Dennis was awakened by someone shouting " Magnanakaw!"
The shout was most probably made by the victim, whom the appellant then stabbed
in order to facilitate his escape. Considering that the original criminal design to rob
had been consummated with the taking of the money amounting to ₱13,000.00, the
killing of the victim under the circumstances rendered the appellant guilty beyond
reasonable doubt of robbery with homicide.
Robbery with homicide is a composite crime, also known as a special complex
crime. It is composed of two or more crimes but is treated by law as a single
indivisible and unique offense for being the product of one criminal impulse. It is a
specific crime with a specific penalty provided by law, and is to be distinguished
from a compound or complex crime under Article 48 of the Revised Penal Code. 24 A
composite crime is truly distinct and different from a complex or compound crime.
In a composite crime, the composition of the offenses is fixed by law, but in a
complex or compound crime, the combination of the offenses is not specified but
generalized, that is, grave and/or less grave, or one offense being the necessary
means to commit the other. In a composite crime, the penalty for the specified
combination of crimes is specific, but in a complex or compound crime the penalty is
that corresponding to the most serious offense, to be imposed in the maximum
period. A light felony that accompanies the commission of a complex or compound
crime may be made the subject of a separate information, but a light felony that
accompanies a composite crime is absorbed.
The aggravating circumstances of dwelling and nighttime are not appreciated to raise
the penalty to be imposed because the information did not specifically allege them.
But they should be appreciated in order to justify the grant of exemplary damages to
the heirs of the victim in the amount of ₱30,000.00 in accordance with relevant
jurisprudence.25 Under Article 2230 of the Civil Code, exemplary damages may be
granted if at least one aggravating circumstance attended the commission of the
crime. The aggravating circumstance for this purpose need not be specifically alleged
in the information, and can be either a qualifying or attendant circumstance. As
expounded in People v. Catubig:26
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.1âwphi1 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. 27
In line with current jurisprudence,28 we increase the civil indemnity to
₱75,000.00, and the moral damages to ₱75,000.00.
In addition to the damages awarded by the CA, the appellant should be liable to pay
the heirs of the victim interest at the legal rate of 6% per annum on all the monetary
awards for damages from the date of the finality of this decision until the awards are
fully paid.
WHEREFORE, the Court AFFIRMS the decision promulgated on July 23, 2010
subject to the MODIFICATIONS that then accused-appellant ALVIN ESUGON y
AVILA shall pay to the heirs of the late Josephine Castro y Barrera civil indemnity
of ₱75,000.00; moral damages of ₱75,000.00; exemplary damages of ₱30,000.00;
temperate damages of ₱25,000.00; and interest at the legal rate of 6% per annum on
all monetary awards for damages reckoned from the date of the finality of this
decision until the awards are fully paid, plus the costs of suit.
The accused-appellant is ORDERED to pay the costs of suit.
SO ORDERED.
G.R. No. 172716 November 17, 2010
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan
Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig
City affirming sub-silencio a lower court’s ruling finding inapplicable the Double
Jeopardy Clause to bar a second prosecution for Reckless Imprudence Resulting in
Homicide and Damage to Property. This, despite the accused’s previous conviction
for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same
incident grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner)
was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC),
with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical
Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline
L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide
and Damage to Property (Criminal Case No. 82366) for the death of respondent
Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle.
Petitioner posted bail for his temporary release in both cases.
On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No.
82367 and was meted out the penalty of public censure. Invoking this conviction,
petitioner moved to quash the Information in Criminal Case No. 82366 for placing
him in jeopardy of second punishment for the same offense of reckless imprudence.
The MeTC refused quashal, finding no identity of offenses in the two cases. 3
After unsuccessfully seeking reconsideration, petitioner elevated the matter to the
Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari
(S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC the suspension of
proceedings in Criminal Case No. 82366, including the arraignment on 17 May
2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on
petitioner’s motion, the MeTC proceeded with the arraignment and, because of
petitioner’s absence, cancelled his bail and ordered his arrest. 4 Seven days later, the
MeTC issued a resolution denying petitioner’s motion to suspend proceedings and
postponing his arraignment until after his arrest.5 Petitioner sought reconsideration
but as of the filing of this petition, the motion remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce sought in the RTC
the dismissal of S.C.A. No. 2803 for petitioner’s loss of standing to maintain the suit.
Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly
grounding its ruling on petitioner’s forfeiture of standing to maintain S.C.A. No.
2803 arising from the MeTC’s order to arrest petitioner for his non-appearance at the
arraignment in Criminal Case No. 82366. Thus, without reaching the merits of
S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought
reconsideration but this proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803
constrained him to forego participation in the proceedings in Criminal Case No.
82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning
dismissal of appeals for absconding appellants because his appeal before the RTC
was a special civil action seeking a pre-trial relief, not a post-trial appeal of a
judgment of conviction.7
Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A.
2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be
placed twice in jeopardy of punishment for the same offense bars his prosecution in
Criminal Case No. 82366, having been previously convicted in Criminal Case No.
82367 for the same offense of reckless imprudence charged in Criminal Case No.
82366. Petitioner submits that the multiple consequences of such crime are material
only to determine his penalty.
Respondent Ponce finds no reason for the Court to disturb the RTC’s decision
forfeiting petitioner’s standing to maintain his petition in S.C.A. 2803. On the merits,
respondent Ponce calls the Court’s attention to jurisprudence holding that light
offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the
Revised Penal Code with grave or less grave felonies (e.g. homicide). Hence, the
prosecution was obliged to separate the charge in Criminal Case No. 82366 for the
slight physical injuries from Criminal Case No. 82367 for the homicide and damage
to property.
In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s
motion not to file a comment to the petition as the public respondent judge is merely
a nominal party and private respondent is represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner forfeited his
standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following
his non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the
negative, whether petitioner’s constitutional right under the Double Jeopardy Clause
bars further proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case
No. 82366 did not divest him of personality to maintain the petition in S.C.A. 2803;
and (2) the protection afforded by the Constitution shielding petitioner from
prosecutions placing him in jeopardy of second punishment for the same offense bars
further proceedings in Criminal Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s escape from custody or violation
of the terms of his bail bond are governed by the second paragraph of Section 8, Rule
124,8 in relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure
authorizing this Court or the Court of Appeals to "also, upon motion of the appellee
or motu proprio, dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the pendency of the
appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review
judgments of convictions.
The RTC’s dismissal of petitioner’s special civil action for certiorari to review a pre-
arraignment ancillary question on the applicability of the Due Process Clause to bar
proceedings in Criminal Case No. 82366 finds no basis under procedural rules and
jurisprudence. The RTC’s reliance on People v. Esparas9 undercuts the cogency of
its ruling because Esparas stands for a proposition contrary to the RTC’s ruling.
There, the Court granted review to an appeal by an accused who was sentenced to
death for importing prohibited drugs even though she jumped bail pending trial and
was thus tried and convicted in absentia. The Court in Esparas treated the mandatory
review of death sentences under Republic Act No. 7659 as an exception to Section 8
of Rule 124.10
The mischief in the RTC’s treatment of petitioner’s non-appearance at his
arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes
more evident when one considers the Rules of Court’s treatment of a defendant who
absents himself from post-arraignment hearings. Under Section 21, Rule 114 11 of the
Revised Rules of Criminal Procedure, the defendant’s absence merely renders his
bondsman potentially liable on its bond (subject to cancellation should the bondsman
fail to produce the accused within 30 days); the defendant retains his standing and,
should he fail to surrender, will be tried in absentia and could be convicted or
acquitted. Indeed, the 30-day period granted to the bondsman to produce the accused
underscores the fact that mere non-appearance does not ipso facto convert the
accused’s status to that of a fugitive without standing.
Further, the RTC’s observation that petitioner provided "no explanation why he
failed to attend the scheduled proceeding"12 at the MeTC is belied by the records.
Days before the arraignment, petitioner sought the suspension of the MeTC’s
proceedings in Criminal Case No. 82366 in light of his petition with the RTC in
S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment (the order for
which was released days after the MeTC ordered petitioner’s arrest), petitioner
sought reconsideration. His motion remained unresolved as of the filing of this
petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put in jeopardy of
punishment for the same offense" 13 protects him from, among others, post-conviction
prosecution for the same offense, with the prior verdict rendered by a court of
competent jurisdiction upon a valid information.14 It is not disputed that petitioner’s
conviction in Criminal Case No. 82367 was rendered by a court of competent
jurisdiction upon a valid charge. Thus, the case turns on the question whether
Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same offense."
Petitioner adopts the affirmative view, submitting that the two cases concern the
same offense of reckless imprudence. The MeTC ruled otherwise, finding that
Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate
offense from Reckless Imprudence Resulting in Homicide and Damage to Property
"as the [latter] requires proof of an additional fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were prosecuted
under the same provision of the Revised Penal Code, as amended, namely, Article
365 defining and penalizing quasi-offenses. The text of the provision reads:
Imprudence and negligence. — Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period to prision correccional in
its medium period; if it would have constituted a less grave felony, the penalty of
arresto mayor in its minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum period shall
be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which
would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor
in its medium and maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only resulted in
damage to the property of another, the offender shall be punished by a fine ranging
from an amount equal to the value of said damages to three times such value, but
which shall in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any
person who, by simple imprudence or negligence, shall cause some wrong which, if
done maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall exercise their sound discretion,
without regard to the rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those
provided in the first two paragraphs of this article, in which case the court
 shall impose the penalty next lower in degree than that which should be
imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the
Automobile Law, to death of a person shall be caused, in which case the
defendant shall be punished by prision correccional in its medium and
maximum periods.
Reckless imprudence consists in voluntary, 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 or failing to perform such act, taking
into consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases in
which the damage impending to be caused is not immediate nor the danger clearly
manifest.
The penalty next higher in degree to those provided for in this article shall be
imposed upon the offender who fails to lend on the spot to the injured parties such
help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-groupings relating to
(1) the penalties attached to the quasi-offenses of "imprudence" and "negligence"
(paragraphs 1-2); (2) a modified penalty scheme for either or both quasi-offenses
(paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing penalties
(paragraph 5); and (4) the definition of "reckless imprudence" and "simple
imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental
attitude or condition behind the act, the dangerous recklessness, lack of care or
foresight, the imprudencia punible," 16 unlike willful offenses which punish the
intentional criminal act. These structural and conceptual features of quasi-offenses
set them apart from the mass of intentional crimes under the first 13 Titles of Book II
of the Revised Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct
species of crime, separately defined and penalized under the framework of our penal
laws, is nothing new. As early as the middle of the last century, we already sought to
bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga
the proposition that "reckless imprudence is not a crime in itself but simply a way of
committing it x x x"17 on three points of analysis: (1) the object of punishment in
quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat
quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating
circumstance of minimal intent) and; (3) the different penalty structures for quasi-
crimes and intentional crimes:
The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless
imprudence" is not a crime in itself but simply a way of committing it and merely
determines a lower degree of criminal liability is too broad to deserve unqualified
assent. There are crimes that by their structure cannot be committed through
imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt
with separately from willful offenses. It is not a mere question of classification or
terminology. In intentional crimes, the act itself is punished; in negligence or
imprudence, what is principally penalized is the mental attitude or condition behind
the act, the dangerous recklessness, lack of care or foresight, the imprudencia
punible. x x x x
Were criminal negligence but a modality in the commission of felonies, operating
only to reduce the penalty therefor, then it would be absorbed in the mitigating
circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as
the one actually committed. Furthermore, the theory would require that the
corresponding penalty should be fixed in proportion to the penalty prescribed for
each crime when committed willfully. For each penalty for the willful offense, there
would then be a corresponding penalty for the negligent variety. But instead, our
Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto
mayor maximum, to prision correccional [medium], if the willful act would
constitute a grave felony, notwithstanding that the penalty for the latter could range
all the way from prision mayor to death, according to the case. It can be seen that the
actual penalty for criminal negligence bears no relation to the individual willful
crime, but is set in relation to a whole class, or series, of crimes. 18 (Emphasis
supplied)
This explains why the technically correct way to allege quasi-crimes is to state that
their commission results in damage, either to person or property. 19
Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear
a case for "Damage to Property through Reckless Imprudence," its jurisdiction being
limited to trying charges for Malicious Mischief, an intentional crime conceptually
incompatible with the element of imprudence obtaining in quasi-crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal
code) and since repeatedly reiterated,21 stands on solid conceptual foundation. The
contrary doctrinal pronouncement in People v. Faller22 that "[r]eckless impudence is
not a crime in itself x x x [but] simply a way of committing it x x x," 23 has long been
abandoned when the Court en banc promulgated Quizon in 1955 nearly two
decades after the Court decided Faller in 1939. Quizon rejected Faller’s
conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are
distinct species of crimes and not merely methods of committing crimes. Faller
found expression in post-Quizon jurisprudence24 only by dint of lingering doctrinal
confusion arising from an indiscriminate fusion of criminal law rules defining Article
365 crimes and the complexing of intentional crimes under Article 48 of the Revised
Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-
crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related
branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses,
barring second prosecutions for a quasi-offense alleging one resulting act after a
prior conviction or acquittal of a quasi-offense alleging another resulting act but
arising from the same reckless act or omission upon which the second prosecution
was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single quasi-offense by
itself and not merely a means to commit other crimes such that conviction or
acquittal of such quasi-offense bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts, undergirded this Court’s unbroken
chain of jurisprudence on double jeopardy as applied to Article 365 starting with
People v. Diaz,25 decided in 1954. There, a full Court, speaking through Mr. Justice
Montemayor, ordered the dismissal of a case for "damage to property thru reckless
imprudence" because a prior case against the same accused for "reckless driving,"
arising from the same act upon which the first prosecution was based, had been
dismissed earlier. Since then, whenever the same legal question was brought before
the Court, that is, whether prior conviction or acquittal of reckless imprudence bars
subsequent prosecution for the same quasi-offense, regardless of the consequences
alleged for both charges, the Court unfailingly and consistently answered in the
affirmative in People v. Belga26 (promulgated in 1957 by the Court en banc, per
Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.),
People v. Narvas28 (promulgated in 1960 by the Court en banc, per Bengzon J.),
People v. Silva29 (promulgated in 1962 by the Court en banc, per Paredes, J.), People
v. Macabuhay30 (promulgated in 1966 by the Court en banc, per Makalintal, J.),
People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en
banc, per Relova, J.), and People v. City Court of Manila 33 (promulgated in 1983 by
the First Division, per Relova, J.). These cases uniformly barred the second
prosecutions as constitutionally impermissible under the Double Jeopardy Clause.
The reason for this consistent stance of extending the constitutional protection under
the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice
J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious
physical injuries and damage to property thru reckless imprudence" because of the
accused’s prior acquittal of "slight physical injuries thru reckless imprudence," with
both charges grounded on the same act, the Court explained: 34
Reason and precedent both coincide in that once convicted or acquitted of a specific
act of reckless imprudence, the accused may not be prosecuted again for that same
act. For the essence of the quasi offense of criminal negligence under article 365 of
the Revised Penal Code lies in the execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The gravity of the consequence is
only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should
affect one person or several persons, the offense (criminal negligence) remains one
and the same, and can not be split into different crimes and prosecutions.35 x x x
(Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its
logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this unbroken line of
authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v.
Estipona,36 decided by the pre-war colonial Court in November 1940, allowed the
subsequent prosecution of an accused for reckless imprudence resulting in damage to
property despite his previous conviction for multiple physical injuries arising from
the same reckless operation of a motor vehicle upon which the second prosecution
was based. Estipona’s inconsistency with the post-war Diaz chain of jurisprudence
suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to
rest in 1982 in Buerano.37 There, we reviewed the Court of Appeals’ conviction of an
accused for "damage to property for reckless imprudence" despite his prior
conviction for "slight and less serious physical injuries thru reckless imprudence,"
arising from the same act upon which the second charge was based. The Court of
Appeals had relied on Estipona. We reversed on the strength of Buan: 38
Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the
pre-war case of People vs. Estipona decided on November 14, 1940. However, in the
case of People vs. Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru
Justice J. B. L. Reyes, held that –
Reason and precedent both coincide in that once convicted or acquitted of a specific
act of reckless imprudence, the accused may not be prosecuted again for that same
act. For the essence of the quasi offense of criminal negligence under Article 365 of
the Revised Penal Code lies in the execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The gravity of the consequence is
only taken into account to determine the penalty, it does not qualify the substance of
the offense. And, as the careless act is single, whether the injurious result should
affect one person or several persons, the offense (criminal negligence) remains one
and the same, and can not be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now
Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries
through reckless imprudence, prevents his being prosecuted for serious physical
injuries through reckless imprudence in the Court of First Instance of the province,
where both charges are derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second jeopardy for
the same offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively overruled Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier
stance in Silva, joined causes with the accused, a fact which did not escape the
Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION
dated December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals
erred in not sustaining petitioner’s plea of double jeopardy and submits that "its
affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding
petitioner guilty of damage to property through reckless imprudence should be set
aside, without costs." He stressed that "if double jeopardy exists where the reckless
act resulted into homicide and physical injuries. then the same consequence must
perforce follow where the same reckless act caused merely damage to property-not
death-and physical injuries. Verily, the value of a human life lost as a result of a
vehicular collision cannot be equated with any amount of damages caused to a
motors vehicle arising from the same mishap." 40 (Emphasis supplied)
Hence, we find merit in petitioner’s submission that the lower courts erred in
refusing to extend in his favor the mantle of protection afforded by the Double
Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioner’s
case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also
involved in a vehicular collision, was charged in two separate Informations with
"Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious
Physical Injuries thru Reckless Imprudence." Following his acquittal of the former,
the accused sought the quashal of the latter, invoking the Double Jeopardy Clause.
The trial court initially denied relief, but, on reconsideration, found merit in the
accused’s claim and dismissed the second case. In affirming the trial court, we
quoted with approval its analysis of the issue following Diaz and its progeny People
v. Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and
dismissed the case, holding: —
[T]he Court believes that the case falls squarely within the doctrine of double
jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and
Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with
the crime of physical injuries through reckless imprudence arising from a collision
between the two automobiles driven by them (Crim. Case No. 88). Without the
aforesaid complaint having been dismissed or otherwise disposed of, two other
criminal complaints were filed in the same justice of the peace court, in connection
with the same collision one for damage to property through reckless imprudence
(Crim. Case No. 95) signed by the owner of one of the vehicles involved in the
collision, and another for multiple physical injuries through reckless imprudence
(Crim. Case No. 96) signed by the passengers injured in the accident. Both of these
two complaints were filed against Jose Belga only. After trial, both defendants were
acquitted of the charge against them in Crim. Case No. 88. Following his acquittal,
Jose Belga moved to quash the complaint for multiple physical injuries through
reckless imprudence filed against him by the injured passengers, contending that the
case was just a duplication of the one filed by the Chief of Police wherein he had just
been acquitted. The motion to quash was denied and after trial Jose Belga was
convicted, whereupon he appealed to the Court of First Instance of Albay. In the
meantime, the case for damage to property through reckless imprudence filed by one
of the owners of the vehicles involved in the collision had been remanded to the
Court of First Instance of Albay after Jose Belga had waived the second stage of the
preliminary investigation. After such remand, the Provincial Fiscal filed in the Court
of First Instance two informations against Jose Belga, one for physical injuries
through reckless imprudence, and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First Instance, upon motion
of the defendant Jose Belga who alleged double jeopardy in a motion to quash. On
appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court
in the following language: .
The question for determination is whether the acquittal of Jose Belga in the case filed
by the chief of police constitutes a bar to his subsequent prosecution for multiple
physical injuries and damage to property through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the
accused was charged in the municipal court of Pasay City with reckless driving
under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile in
a ῾fast and reckless manner ... thereby causing an accident.’ After the accused had
pleaded not guilty the case was dismissed in that court ῾for failure of the Government
to prosecute’. But some time thereafter the city attorney filed an information in the
Court of First Instance of Rizal, charging the same accused with damage to property
thru reckless imprudence. The amount of the damage was alleged to be ₱249.50.
Pleading double jeopardy, the accused filed a motion, and on appeal by the
Government we affirmed the ruling. Among other things we there said through Mr.
Justice Montemayor —
The next question to determine is the relation between the first offense of violation of
the Motor Vehicle Law prosecuted before the Pasay City Municipal Court and the
offense of damage to property thru reckless imprudence charged in the Rizal Court
of First Instance. One of the tests of double jeopardy is whether or not the second
offense charged necessarily includes or is necessarily included in the offense charged
in the former complaint or information (Rule 113, Sec. 9). Another test is whether
the evidence which proves one would prove the other that is to say whether the facts
alleged in the first charge if proven, would have been sufficient to support the second
charge and vice versa; or whether one crime is an ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also disposes of the contention of the
prosecuting attorney that the charge for slight physical injuries through reckless
imprudence could not have been joined with the charge for homicide with serious
physical injuries through reckless imprudence in this case, in view of the provisions
of Art. 48 of the Revised Penal Code, as amended. The prosecution’s contention
might be true. But neither was the prosecution obliged to first prosecute the accused
for slight physical injuries through reckless imprudence before pressing the more
serious charge of homicide with serious physical injuries through reckless
imprudence. Having first prosecuted the defendant for the lesser offense in the
Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant,
the prosecuting attorney is not now in a position to press in this case the more serious
charge of homicide with serious physical injuries through reckless imprudence which
arose out of the same alleged reckless imprudence of which the defendant have been
previously cleared by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and
hence, Diaz) "for the purpose of delimiting or clarifying its application."44 We
declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing the case, on the
ground of double jeopardy, upon the basis of the acquittal of the accused in the JP
court for Slight Physical Injuries, thru Reckless Imprudence. In the same breath said
State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely
on the ruling of the Belga case x x x, upon which the order of dismissal of the lower
court was anchored. The Solicitor General, however, urges a re-examination of said
ruling, upon certain considerations for the purpose of delimiting or clarifying its
application. We find, nevertheless, that further elucidation or disquisition on the
ruling in the Belga case, the facts of which are analogous or similar to those in the
present case, will yield no practical advantage to the government. On one hand, there
is nothing which would warrant a delimitation or clarification of the applicability of
the Belga case. It was clear. On the other, this Court has reiterated the views
expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-
12669, April 30, 1959.45 (Emphasis supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to which the MeTC
succumbed, stems from persistent but awkward attempts to harmonize conceptually
incompatible substantive and procedural rules in criminal law, namely, Article 365
defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both
under the Revised Penal Code. Article 48 is a procedural device allowing single
prosecution of multiple felonies falling under either of two categories: (1) when a
single act constitutes two or more grave or less grave felonies (thus excluding from
its operation light felonies46); and (2) when an offense is a necessary means for
committing the other. The legislature crafted this procedural tool to benefit the
accused who, in lieu of serving multiple penalties, will only serve the maximum of
the penalty for the most serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony
but "the mental attitude x x x behind the act, the dangerous recklessness, lack of care
or foresight x x x,"47 a single mental attitude regardless of the resulting
consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or
more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48 works to combine
in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II
of the Revised Penal Code, when proper; Article 365 governs the prosecution of
imprudent acts and their consequences. However, the complexities of human
interaction can produce a hybrid quasi-offense not falling under either models – that
of a single criminal negligence resulting in multiple non-crime damages to persons
and property with varying penalties corresponding to light, less grave or grave
offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-
crime be prosecuted? Should Article 48’s framework apply to "complex" the single
quasi-offense with its multiple (non-criminal) consequences (excluding those
amounting to light offenses which will be tried separately)? Or should the
prosecution proceed under a single charge, collectively alleging all the consequences
of the single quasi-crime, to be penalized separately following the scheme of
penalties under Article 365?
Jurisprudence adopts both approaches. Thus, one line of rulings (none of which
involved the issue of double jeopardy) applied Article 48 by "complexing" one
quasi-crime with its multiple consequences48 unless one consequence amounts to a
light felony, in which case charges were split by grouping, on the one hand, resulting
acts amounting to grave or less grave felonies and filing the charge with the second
level courts and, on the other hand, resulting acts amounting to light felonies and
filing the charge with the first level courts.49 Expectedly, this is the approach the
MeTC impliedly sanctioned (and respondent Ponce invokes), even though under
Republic Act No. 7691,50 the MeTC has now exclusive original jurisdiction to
impose the most serious penalty under Article 365 which is prision correccional in its
medium period.
Under this approach, the issue of double jeopardy will not arise if the "complexing"
of acts penalized under Article 365 involves only resulting acts penalized as grave or
less grave felonies because there will be a single prosecution of all the resulting acts.
The issue of double jeopardy arises if one of the resulting acts is penalized as a light
offense and the other acts are penalized as grave or less grave offenses, in which case
Article 48 is not deemed to apply and the act penalized as a light offense is tried
separately from the resulting acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a single prosecution
of all the effects of the quasi-crime collectively alleged in one charge, regardless of
their number or severity,51 penalizing each consequence separately. Thus, in Angeles
v. Jose,52 we interpreted paragraph three of Article 365, in relation to a charge
alleging "reckless imprudence resulting in damage to property and less serious
physical injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have only resulted in
damage to the property of another, the offender shall be punished by a fine ranging
from an amount equal to the value of said damage to three times such value, but
which shall in no case be less than 25 pesos.
The above-quoted provision simply means that if there is only damage to property
the amount fixed therein shall be imposed, but if there are also physical injuries there
should be an additional penalty for the latter. The information cannot be split into
two; one for the physical injuries, and another for the damage to property, x x
x.53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty scheme under Article
365.
Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field
demands choosing one framework over the other. Either (1) we allow the
"complexing" of a single quasi-crime by breaking its resulting acts into separate
offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its
present framing under Article 365, discard its conception under the Quizon and Diaz
lines of cases, and treat the multiple consequences of a quasi-crime as separate
intentional felonies defined under Titles 1-13, Book II under the penal code; or (2)
we forbid the application of Article 48 in the prosecution and sentencing of quasi-
crimes, require single prosecution of all the resulting acts regardless of their number
and severity, separately penalize each as provided in Article 365, and thus maintain
the distinct concept of quasi-crimes as crafted under Article 365, articulated in
Quizon and applied to double jeopardy adjudication in the Diaz line of
cases.1avvphi1
A becoming regard of this Court’s place in our scheme of government denying it the
power to make laws constrains us to keep inviolate the conceptual distinction
between quasi-crimes and intentional felonies under our penal code. Article 48 is
incongruent to the notion of quasi-crimes under Article 365. It is conceptually
impossible for a quasi-offense to stand for (1) a single act constituting two or more
grave or less grave felonies; or (2) an offense which is a necessary means for
committing another. This is why, way back in 1968 in Buan, we rejected the
Solicitor General’s argument that double jeopardy does not bar a second prosecution
for slight physical injuries through reckless imprudence allegedly because the charge
for that offense could not be joined with the other charge for serious physical injuries
through reckless imprudence following Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for slight physical injuries
through reckless imprudence could not be joined with the accusation for serious
physical injuries through reckless imprudence, because Article 48 of the Revised
Penal Code allows only the complexing of grave or less grave felonies. This same
argument was considered and rejected by this Court in the case of People vs. [Silva]
x x x:
[T]he prosecution’s contention might be true. But neither was the prosecution
obliged to first prosecute the accused for slight physical injuries through reckless
imprudence before pressing the more serious charge of homicide with serious
physical injuries through reckless imprudence. Having first prosecuted the defendant
for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan,
which acquitted the defendant, the prosecuting attorney is not now in a position to
press in this case the more serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same alleged reckless
imprudence of which the defendant has been previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of
the Peace x x x of the charge of slight physical injuries through reckless imprudence,
prevents his being prosecuted for serious physical injuries through reckless
imprudence in the Court of First Instance of the province, where both charges are
derived from the consequences of one and the same vehicular accident, because the
second accusation places the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of
charges under Article 365, irrespective of the number and severity of the resulting
acts, rampant occasions of constitutionally impermissible second prosecutions are
avoided, not to mention that scarce state resources are conserved and diverted to
proper use.
Hence, we hold that prosecutions under Article 365 should proceed from a single
charge regardless of the number or severity of the consequences. In imposing
penalties, the judge will do no more than apply the penalties under Article 365 for
each consequence alleged and proven. In short, there shall be no splitting of charges
under Article 365, and only one information shall be filed in the same first level
court.55
Our ruling today secures for the accused facing an Article 365 charge a stronger and
simpler protection of their constitutional right under the Double Jeopardy Clause.
True, they are thereby denied the beneficent effect of the favorable sentencing
formula under Article 48, but any disadvantage thus caused is more than
compensated by the certainty of non-prosecution for quasi-crime effects qualifying
as "light offenses" (or, as here, for the more serious consequence prosecuted
belatedly). If it is so minded, Congress can re-craft Article 365 by extending to
quasi-crimes the sentencing formula of Article 48 so that only the most severe
penalty shall be imposed under a single prosecution of all resulting acts, whether
penalized as grave, less grave or light offenses. This will still keep intact the distinct
concept of quasi-offenses. Meanwhile, the lenient schedule of penalties under Article
365, befitting crimes occupying a lower rung of culpability, should cushion the effect
of this ruling.
WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2
February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch
157. We DISMISS the Information in Criminal Case No. 82366 against petitioner
Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City,
Branch 71 on the ground of double jeopardy.
Let a copy of this ruling be served on the President of the Senate and the Speaker of
the House of Representatives.
SO ORDERED.
G. R. No. 146099 - April 30, 2003
PEOPLE OF THE PHILIPPINES, Appellee, vs. JIMMEL SANIDAD, PONCE
MANUEL alias PAMBONG, JOHN DOE (at large) and PETER DOE (at
large), accused.
JIMMEL SANIDAD and PONCE MANUEL alias PAMBONG, appellants.
PER CURIAM:
CONDEMNED TO DEATH by the trial court on 26 July 2000 1 for the complex
crime of murder and multiple attempted murder, accused-appellants JIMMEL
SANIDAD and PONCE MANUEL alias PAMBONG now seek the reversal of their
conviction as we review automatically the judgment pursuant to Sec. 22, Rep. Act
No. 7659, amending Art. 47 of The Revised Penal Code.
On 16 January 1999 at around five o'clock in the afternoon Marlon Tugadi, Jun
Quipay, Raymund Fontanilla, Rolando Tugadi, Pepito Tugadi, Delfin Tadeo, Ricardo
Tadeo, Edwin Tumalip, Bobby Velasquez and Dennis Balueg left Budac, Tagum,
Abra, on board a passenger jeepney driven by Delfin Tadeo to attend a barangay
fiesta in the neighboring town of Lagangilang, Abra. When they arrived they joined
the residents in a drinking spree that lasted up to the wee hours the following
morning. In the course of their conviviality, accused-appellants Jimmel Sanidad,
Ponce Manuel alias Pambong and several other residents of Lagangilang joined them
in drinking.2 Marlon Tugadi and accused Jimmel Sanidad were drinking buddies and
members of the CAFGU before then.3
On 17 January 1999 at about four o'clock in the morning Jimmel Sanidad and his
companions finished drinking and left.4 Shortly after, the group of Marlon Tugadi
also stopped drinking and headed home for Budac, Tagum, Abra, boarding the same
jeepney driven by Delfin Tadeo. Seated next to Delfin in front were Ricardo Tadeo
and Rolando Tugadi, while on the left rear seat were Marlon Tugadi, Jun Quipay and
Raymund Fontanilla. Seated on the right rear seat were Bobby Velasquez, Dennis
Balueg, Edwin Tumalip and Pepito Tugadi.5
With Delfin Tadeo on the wheels the jeepney cruised the rough and gravelly dirt road
of Abra-Cervantes with its passengers completely unaware that danger lurked ahead
in the dark and dreary stretch of the road. The jeepney's headlights sharply ablaze
and glaring illuminated the path and radiated towards the lush vegetation of the
surrounding landscape. As the jeepney approached a plantation, its headlights
beamed at accused-appellants Jimmel Sanidad, Ponce Manuel and two (2) other
unidentified companions who were positioned next to a mango tree at the left side of
the road approximately fifteen (15) meters away. Accused-appellants were armed
with an armalite, a .45 caliber pistol and shotguns with buckshots.
As the jeepney moved closer, the accused in a classic case of ambuscade suddenly
and without warning unleashed a volley of shots at the jeepney. 6 Delfin stepped on
the gas in a vain effort to elude their assailants, but they continued firing at the
hapless victims. Bullets plowed the side of the vehicle and all the passengers sitting
at the back instinctively ducked on the floor to avoid being hit. The accused pursued
the vehicle on foot and fired at it incessantly until it finally stalled a few meters
away.7
The jeepney was left in shambles. Its tires, headlights and taillights were shattered;
its windshield broken to pieces, and the front and left sides of the vehicle riddled
with bullets.8 Miraculously, almost all of its passengers, with the exception of
Rolando Tugadi, survived the ambush and suffered only minor injuries. Marlon
Tugadi tried to pull his brother Rolando Tugadi from the vehicle to safety only to
realize that he was not only too heavy, he was already dead. As the pursuing gunmen
drew near, Marlon decided to abandon Rolando and scampered away with the other
victims until they reached a bushy area about fifteen (15) meters away from the
vehicle.9
Meanwhile, the accused caught up with the crippled jeepney. Moments later, fire
engulfed it. The radiant flames of the burning vehicle illuminated the malefactors
who stood nearby and watched the blaze. It could not be determined whether the
accused purposely set the vehicle on fire or the fuel tank was hit during the shooting
that ignited the fire. Marlon Tugadi and Pepito Tugadi later heard one of the
unidentified companions of accused-appellant Sanidad say to him: "My gosh, we
were not able to kill all of them." 10 Thereafter, the accused left the scene, firing their
guns indiscriminately into the air as they walked away. 11
Apparently shaken and dazed by their terrifying ordeal, the victims hid in a culvert
on the side of the road and did not come out until the police arrived at the scene. The
police doused the burning vehicle with water and found the charred remains of
Rolando Tugadi.12 Likewise retrieved at the crime scene were eighty-five (85) empty
shells from an armalite rifle, two (2) empty shells from a .45 caliber pistol, and a slug
from another .45 caliber pistol.13
Dr. Maria L. Dickenson, Medico-Legal Officer of Lagangilang, Abra, conducted an
autopsy on Rolando Tugadi immediately after the incident. Her postmortem findings
were: (a) carbonization of the body, (b) long bones of lower extremities still burning,
(c) presence of lower half portion of charred skull, (d) presence of left charred thigh,
(e) presence of right charred thigh, and (e) presence of upper third of charred right
leg. Cause of death: burns, generalized, 6th degree.14
An Information for murder with multiple attempted murder and malicious mischief
was filed against Jimmel Sanidad, Ponce Manuel alias Pambong, John Doe and Peter
Doe. The defense of the accused rested on bare denial and alibi. They disclaimed
liability for the ambush insisting that at about 4:00 to 4:30 in the morning of 17
January 1999 they were already at home sleeping when they heard the clatter of
gunfire and an explosion nearby. But the trial court disregarded the defense
interposed by the accused and forthwith convicted them of the complex crime of
murder and multiple attempted murder, and sentenced them to death.
In this mandatory review, the legal questions raised essentially centered on: first, the
credibility of witnesses; and, second, the sufficiency of the prosecution evidence.
We affirm the conviction. We find that the prosecution succeeded overwhelmingly in
meeting the quantum of proof required to overturn the constitutional presumption of
innocence. The trial court properly convicted accused-appellants on the basis of the
credible and uncontroverted testimonies of the victims and other prosecution
witnesses.
It is axiomatic that the assessment on the credibility of witnesses is a function best
discharged by the trial court which is in a better position to determine conflicting
testimonies after having heard the witnesses, and observed their deportment and
manner of testifying. This Court will not interfere with the trial court's findings on
the credibility of witnesses unless those findings are arbitrary, or facts and
circumstances of weight and influence have been overlooked, misunderstood or
misapplied by the judge which, if considered, would have affected the outcome of
the case.15 None of the exceptions have been shown to exist in the instant case.
Accused-appellants pointed out supposed inconsistencies and inaccuracies in the
testimonies of prosecution witnesses Marlon Tugadi, Jun Quipay, Pepito Tugadi and
Raymund Fontanilla, thus
x x x x . ordinary human conduct is very predictable. When confronted with danger,
the first reaction is to avoid it. But not Jun Quipay, Marlon Tugadi, Pepito Tugadi
and Raymund Fontanilla. While all claimed they have jumped out of the jeep, they
did not run away. Instead they still lingered at about 750 meters away from the jeep.
So that they saw the attackers when the jeep exploded. How remarkable is their
depiction of the accused as unafraid of an exploding jeep! The testimonies of Jun
Quipay and Marlon Tugadi cancel each other out. Marlon said he saw the ambushers
come out with guns blazing. Jun said Marlon was lying down with eyes closed when
that moment happened. Again, back to human nature, Marlon Tugadi and Pepito
Tugadi saw with the morning light that their brother Rolando Tugadi is (sic) no
more. A carbonized cadaver he became. And yet they did not tell the police who did
the dastardly acts! How unnatural. And yet they claimed in court that they positively
identified the accused at the time of the ambush.16
After a cursory reading of the transcripts, however, we find that the supposed
inconsistent and inaccurate details are relatively trivial and do not affect the veracity
of the testimonies of Marlon Tugadi, Jun Quipay, Pepito Tugadi and Raymund
Fontanilla. Indeed, inconsistencies and inaccuracies in the testimonies of witnesses
which refer to minor and insignificant details do not destroy their credibility. Such
minor inconsistencies and inaccuracies even manifest truthfulness and candor, and
erase any suspicion of a rehearsed testimony.17
At any rate, the ineludible fact remains that Marlon Tugadi, Jun Quipay, Pepito
Tugadi and Raymund Fontanilla were all at the scene of the crime and almost got
killed during the ambush. They were eyewitnesses to the gruesome death of a family
member in the hands of accused-appellants. What is important is that they conveyed
to the trial court what they actually perceived, including those seeming
improbabilities, on that fateful day; and they categorically supplied all the facts
necessary for accused-appellants' conviction. Verily, victims of crimes cannot be
expected to recall with exact precision the minutiae of the incident. Human memory
is not as unerring as a photograph.18 Different persons having different reflexes
produce varying reactions, impressions, perceptions and recollections. Their
physical, mental and emotional conditions may have also affected the recall of the
details of the incident.
Significantly, the victims positively identified accused-appellants Jimmel Sanidad
and Ponce Manuel in open court as among those who ambushed them in the early
morning of 17 January 1999 at the Abra-Cervantes Road, which led to the death of
Rolando Tugadi. Quoted hereunder is an excerpt from Marlon Tugadi's testimony
Q: Mr. Witness, do you know one by the name of Jimmel Sanidad?
A: Yes sir.
Q: Will you please focus your eyes around and point to that person Jimmel
Sanidad?
A: (Witness pointed to a man seated at the accused bench and when asked of his
name he answered Jimmel Sanidad.)
Q: Why do you know this accused Jimmel Sanidad Mr. Witness?
A: We were in the same batch in the CAFGU sir.
Q: Aside from being a CAFGU batch member, what else do you know of this
accused Jimmel Sanidad?
A: We sometimes drink together when I go to their place, sir.
Q: How about the other accused Ponce Manuel alias Pambong, again I ask you
to focus your eyes around and point at him and identify him?
A: (Witness pointed to a man seated at the accused bench and when asked of his
name he answered Ponce Manuel).19
Victims Jun Quipay, Pepito Tugadi and Raymund Fontanilla were likewise asked
during the trial to identify the malefactors who staged the ambush, and they all
pointed to Jimmel Sanidad and Ponce Manuel.
It must be stressed that the incidents prior to, during and after the attack provided the
victims with more than sufficient opportunity to identify accused-appellants as the
perpetrators of the dastardly acts. The victims had a drinking session with their
assailants that lasted for many hours. During the ambush itself, the headlights of the
victims' vehicle illuminated the assailants. Again, when the vehicle burst into flames
after the ambush, the surroundings were bathed in light including the assailants who
were standing nearby, thus enabling the victims to have a good look at their faces.
These circumstances, coupled with the victims' familiarity with accused-appellants,
rendered a mistaken identification very unlikely.
The general denial and alibi of the defense are too lame to be legally accepted as
true, especially when measured up against the positive identification of accused-
appellants. The doctrine is well settled that denial and alibi are the weakest of all
defenses as they are easy to concoct and fabricate but difficult to disprove. Denial
and alibi should be rejected when the identities of accused-appellants are sufficiently
and positively established by eyewitnesses to the crime.
For alibi to be credible, the accused must not only prove his presence at another
place at the time of the commission of the offense but must also demonstrate that it
would be physically impossible for him to be at the locus criminis at that time. In the
case at bar, accused-appellants claimed that they were in their respective houses at
the time of the ambush. But the record shows that the house of accused-appellant
Jimmel Sanidad's sister where he was staying in Sitio Bio, San Isidro, Lagangilang,
Abra, is but a mere six (6) to seven (7)-minute walk, or about 700 meters, from the
crime scene.20 While accused-appellant Ponce Manuel lived "in the same place, (in)
the same community."21
Equally untenable is accused-appellants' assertion that the delay of the victims in
identifying their ambushers for more than four (4) weeks points to the conclusion
that "all the survivors of the ambush were really and timely clueless as to who the
perpetrators of the ambush (were)."22
Delay in reporting a crime to the authorities is not an uncommon phenomenon. The
rule is, delay by a witness in divulging what he or she knows about a crime is not by
itself a setback to the evidentiary value of such witness' testimony, where the delay is
sufficiently justified by any acceptable explanation. Thus, a well-founded fear of
reprisal or the individual manner by which individuals react when confronted by a
gruesome event as to place the viewer in a state of shock for sometime, is a valid
excuse for the temporary silence of witnesses. As correctly observed by the Solicitor
General in the present case
x x x the victims in the instant case were survivors of an extremely violent incident
which inflicts severe concomitant psychological stress on them. Considering also
that the survivors were being investigated by the police from another municipality
where the perpetrators not only reside but one of them was even a member of the
CAFGU, it is a natural reaction for the victims not to reveal that they know the
identities of the perpetrators and induce them to take action to prevent the victims
from testifying x x x x Furthermore, Marlon Tugadi insisted to the police during the
investigation that he knew who ambushed them but that he would talk only after his
brother's interment. This hardly qualifies as an unusual behavior. 23
Conspiracy and treachery, as the trial court found, attended the commission of the
crime. For collective responsibility to be established, it is not necessary that
conspiracy be proved by direct evidence of a prior agreement to commit the crime.
Only rarely would such an agreement be demonstrable because criminal
undertakings, in the nature of things, are rarely documented by written agreements.
The concerted actions of accused-appellants, however, clearly evinced conspiracy.
Their simultaneous acts of peppering the victims' jeepney with bullets, and thereafter
chasing the vehicle to prevent its escape, were undoubtedly in pursuance of a
common felonious design. All these sufficiently prove beyond reasonable doubt that
they conspired to consummate the killing of the victim. 24
On treachery, the deadly successive shots of accused-appellants did not allow the
victims any opportunity to put up a decent defense. The victims were like a flock of
sheep waylaid and ferociously attacked by a pack of ravening wolves. While the
victims might have realized a possible danger to their persons when they saw
accused-appellants, all armed and positioned in a mango tree ahead of them, the
attack was executed in such a vicious manner as to make the defense, not to say a
counter-attack, virtually impossible.
Under the circumstances, it is plain to us that accused-appellants had murder in their
hearts when they waylaid their unwary victims. They must consequently be held
liable for their acts. Insofar as victims Marlon Tugadi, Jun Quipay, Raymund
Fontanilla, Pepito Tugadi, Delfin Tadeo, Ricardo Tadeo, Edwin Tumalip, Bobby
Velasquez and Dennis Balueg are concerned, although they barely escaped the
ambush with superficial injuries does not alter the nature of accused-appellants'
participation in the crime of murder except that not one of them having suffered fatal
injuries which could have resulted in their death, accused-appellants should only be
held guilty of attempted murder. Accused-appellants had commenced their criminal
scheme to liquidate all the victims directly by overt acts, but were unable to perform
all the acts of execution that would have brought about their death by reason of some
cause other than their own spontaneous desistance, that is, the victims successfully
dodged the hail of gunfire and escaped.
We fully agree with the lower court that the instant case comes within the purview of
Art. 48 of The Revised Penal Code which, speaking of complex crimes, provides that
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, the penalty for the most
serious crime shall be imposed in its maximum period." In a complex crime,
although two or more crimes are actually committed, they constitute only one crime
in the eyes of the law as well as in the conscience of the offender. 25
Although several independent acts were performed by the accused in firing separate
shots from their individual firearms, it was not possible to determine who among
them actually killed victim Rolando Tugadi. Moreover, there is no evidence that
accused-appellants intended to fire at each and every one of the victims separately
and distinctly from each other. On the contrary, the evidence clearly shows a single
criminal impulse to kill Marlon Tugadi's group as a whole. 26 Thus, one of accused-
appellants exclaimed in frustration after the ambush: "My gosh, we were not able to
kill all of them."27 Where a conspiracy animates several persons with a single
purpose, their individual acts done in pursuance of that purpose are looked upon as a
single act, the act of execution, giving rise to a single complex offense. 28
The penalty for the most serious offense of murder under Art. 248 of The Revised
Penal Code as amended by Rep. Act No. 7659 is reclusion perpetua to death. It
therefore becomes our painful duty in the instant case to apply the maximum penalty
in accordance with law, and sentence accused-appellants to death.
WHEREFORE, the Decision of the court a quo of 26 July 2000 finding accused-
appellants JIMMEL SANIDAD and PONCE MANUEL alias PAMBONG guilty of
the complex crime of murder and multiple attempted murder and imposing upon
them the supreme penalty of DEATH is AFFIRMED.
Accused-appellants are likewise ordered jointly and severally to: (a) INDEMNIFY
the heirs of the deceased victim Rolando Tugadi in the amount of P50,000.00 as civil
indemnity as well as P50,000.00 as moral damages; and, (b) PAY victim Delfin
Tadeo the sum of P50,000.00 for the loss of his jeepney.
In accordance with Art. 83 of The Revised Penal Code, as amended by Sec. 25 of
Rep. Act No. 7659, upon the finality of this Decision, let the records of this case be
forthwith forwarded to Her Excellency the President for the possible exercise of her
pardoning power.
Costs de oficio.
SO ORDERED.
PEOPLE OF THE PHILIPPINES vs. INOCENCIO GONZALES, JR.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated MAY 7
2002.
G.R. No. 139542 (People of the Philippines, plaintiff-appellee, vs. Inocencio
Gonzales, Jr. y Esquivel, accused-appellant.)
This refers to the Motion filed by private complainant Noel Andres, in his behalf and
in behalf of his son Kenneth Andres and nephew Kevin Valdez, both minors, seeking
a Reconsideration of this Court's Decision dated June 21, 2001 modifying the trial
court's decision and finding appellant guilty of homicide and slight physical injuries,
instead of the complex crime of murder with double frustrated murder and attempted
murder.
In the Motion for Reconsideration private complaint alleges that treachery clearly
attended the killing of Feliber Andres and the injury of Kenneth Andres and Kevin
Valdez. He argues that the aggravating circumstance of abuse of superior strength
qualified the crime to murder as the appellant used a firearm, a Glock 9 mm.
automatic pistol which is a special kind of gun with a special kind of bullet, against
his defenseless and unarmed victims.
Appellant interposed his objection contending that the filing of a Motion for
reconsideration by private complainant would place appellant in double jeopardy and
that the grounds relied upon in the said motion have been passed upon and
thoroughly discussed by the Court. Appellant further contends that a judgment of
conviction that carries the imposition of a penalty may be modified only upon
motion of the accused or at least with the latter's consent. Appellant is of the view
that a motion for reconsideration may be filed only by the accused and not by the
prosecution or the private complainant.
The Office of the Solicitor General interposed no objection to the filing by private
complainant of the motion for reconsideration but nonetheless filed its Comment
thereto. The Solicitor General opined that the issue on treachery was thoroughly and
comprehensively discussed. The make and kind of the gun used becomes immaterial
and assumes less significance with the finding that the shooting was clearly a spur of
the moment or impulsive decision made by appellant which was preceded by a
heated altercation at the instance of the private complainant. In short, it is the opinion
of the Solicitor General that private complainant failed to raise new issues or any
new matter which would warrant a reversal or modification of this Court's Decision.
We agree with appellant and the Solicitor General.
The purpose of private complainant in filing the motion for reconsideration is to
correct the penalty imposed. Private respondent's prayer in the Motion for
Reconsideration seeks a modification of this Court's decision from the finding of
guilt of the appellant of the crimes of homicide and slight physical injuries to the
complex crime of murder with double frustrated murder and attempted murder. In
effect, this would increase the penalty already imposed as private respondent is
seeking for a more severe penalty. This we cannot do.
While private respondent, no doubt, has the legal personality to file a motion for
reconsideration having an interest in the maintenance of the criminal
prosecution,[1]cralaw the limitation is inscribed in Section 1, [2]cralaw Rule 122 of the
Revised Rules of Criminal Procedure (effective December 1, 2000) that "(A)ny party
may appeal from a final judgment or order, except if the accused would be placed
thereby in double jeopardy." To reconsider the case for the purpose of increasing the
penalty would be placing the appellant in double jeopardy. This has been a time-
honored and long-standing jurisprudence. [3]cralaw On this score alone, the motion
for reconsideration filed by private complainant should be denied.
Finally, as correctly pointed out by appellant and the Solicitor General, the
arguments raised by private complainant in his motion for reconsideration have been
discussed and passed upon in the Court's Decision sought to be reconsidered. No
compelling nor cogent reason exists to warrant a modification of this Court's
decision.
WHEREFORE, the Motion for Reconsideration filed by private complainant is
hereby DENIED with FINALITY. No further pleadings is allowed. (Justices Puno,
Kapunan and Panganiban reiterate their dissent; Justice Sandoval-Gutierrez is on
leave). (De Leon, J., abroad on official business.)
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
G.R. No. 131588. March 27, 2001
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GLENN DE LOS
SANTOS, Accused-Appellant.
DECISION
DAVIDE, JR., C.J.:
One may perhaps easily recall the gruesome and tragic event in Cagayan de Oro
City, reported over print and broadcast media, which claimed the lives of several
members of the Philippine National Police (PNP) who were undergoing an
endurance run as part of the Special Counter Insurgency Operation Unit Training.
Not much effort was spared for the search of the one responsible therefor, as herein
accused-appellant Glenn de los Santos (hereafter GLENN) immediately surrendered
to local authorities. GLENN was then charged with the crimes of Multiple Murder,
Multiple Frustrated Murder, and Multiple Attempted Murder in an information filed
with the Regional Trial Court of Cagayan de Oro City. The information reads as
follows:
That on or about October 05, 1995, in the early morning, at Maitum Highway, within
Barangay Puerto, Cagayan de Oro City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, with deliberate intent to kill, taking
advantage of his driven motor vehicle, an Isuzu Elf, and with treachery, did then and
there willfully, unlawfully and feloniously kill and inflict mortal wounds from
behind in a sudden and unexpected manner with the use of said vehicle members of
the Philippine National Police (PNP), undergoing a Special Training Course (Scout
Class 07-95), wearing black T-shirts and black short pants, performing an Endurance
Run of 35 kilometers coming from their camp in Manolo Fortich, Bukidnon, heading
to Regional Training Headquarters in Camp Alagar, Cagayan de Oro City, running in
a column of 3, with a distance of two feet, more or less, from one trainee to another,
thus forming a [sic] three lines, with a length of more or less 50 meters from the 1st
man to the last man, unable to defend themselves, because the accused ran or moved
his driven vehicle on the direction of the backs of the PNP joggers in spite of the
continuous warning signals made by six of the joggers, namely: PO1 Allan Tabacon
Espana, Waldon Sinda Sacro, Lemuel Ybanez Pangca, Artemio Jamil Villaflor,
Nardo Omasas Collantes and Joselito Buyser Escartin, who were at the rear echelon
of said run, acting as guards, by continuously waving their hands at the accused for
him to take the left lane of the highway, going to the City proper, from a distance of
100 meters away from the joggers rear portion, but which accused failed and refused
to heed; instead, he proceeded to operate his driven vehicle (an Isuzu Elf) on high
speed directly towards the joggers, thus forcing the rear guard[s] to throw themselves
to [a] nearby canal, to avoid injuries, then hitting, bumping, or ramming the first four
(4) victims, causing the bodies to be thrown towards the windshields of said Isuzu
Elf, breaking said windshield, and upon being aware that bodies of the victims flew
on the windshield of his driven vehicle, instead of applying his brake, continued to
travel on a high speed, this time putting off its headlights, thus hitting the succeeding
joggers on said 1st line, as a result thereof the following were killed on the spot:
1. Vincent Labis Rosal 7. Antonio Flores Lasco
2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren
4. Nathaniel Mugot Baculio 10. Raul Plaza Martinez
5. Romil Gosila Legrano 11. Jerry Pedrosa Pajo
6. Arnulfo Limbago Jacutin 12. Rolando Paremcio Pancito
While another trainee/victim, Antonio Palomino Mino, died few days after the
incident, while the following eleven (11) other trainee/victims were seriously
wounded, the accused thus performing all the acts of execution which would produce
the crime of Murder as a consequence but nevertheless did not produce it by reason
of some cause other than said accuseds spontaneous desistance, that is, by the timely
and able medical assistance rendered on the following victims which prevented their
death, to wit:
1. Rey Go Boquis 7. Melchor Hinlo
2. Rene Tuako Calabria 8. Noel Ganzan Oclarit
3. Nonata Ibarra Erno 9. Charito Penza Gepala
4. Rey Tamayo Estofil 10. Victor Malicse Olavo
5. Joel Rey Migue Galendez 11. Bimbo Glabe Polboroza
6. Arman Neri Hernaiz
While the following Police Officers I (POI) sustained minor injuries, to wit:
1. Romanito Andrada 6. Romualdo Cotor Dacera
2. Richard Canoy Caday 7. Ramil Rivas Gaisano
3. Rey Cayusa 8. Dibangkita Magandang
4. Avelino Chua 9. Martin Olivero Pelarion
5. Henry Gadis Coubeta 10. Flordicante Martin Piligro
after which said accused thereafter escaped from the scene of the incident, leaving
behind the victims afore-enumerated helpless.
Contrary to Article 248, in relation to Article 6 of the Revised Penal Code.
The evidence for the prosecution disclose that the Special Counter Insurgency
Operation Unit Training held at Camp Damilag, Manolo Fortich, Bukidnon, started
on 1 September 1995 and was to end on 15 October 1995. The last phase of the
training was the endurance run from said Camp to Camp Alagar, Cagayan de Oro
City. The run on 5 October 1995 started at 2:20 a.m. The PNP trainees were divided
into three columns: the first and second of which had 22 trainees each, and the third
had 21. The trainees were wearing black T-shirts, black short pants, and green and
black combat shoes. At the start of the run, a Hummer vehicle tailed the jogging
trainees. When they reached Alae, the driver of the Hummer vehicle was instructed
to dispatch advanced security at strategic locations in Carmen Hill. Since the jogging
trainees were occupying the right lane of the highway, two rear security guards were
assigned to each rear column. Their duty was to jog backwards facing the oncoming
vehicles and give hand signals for other vehicles to take the left
lane. 1cräläwvirtualibräry
Prosecution witnesses Lemuel Y. Pangca and Weldon Sacro testified that they were
assigned as rear guards of the first column. They recalled that from Alae to Maitum
Highway, Puerto, Cagayan de Oro City, about 20 vehicles passed them, all of which
slowed down and took the left portion of the road when signaled to do
so. 2cräläwvirtualibräry
While they were negotiating Maitum Highway, they saw an Isuzu Elf truck coming
at high speed towards them. The vehicle lights were in the high beam. At a distance
of 100 meters, the rear security guards started waving their hands for the vehicle to
take the other side of the road, but the vehicle just kept its speed, apparently ignoring
their signals and coming closer and closer to them. Realizing that the vehicle would
hit them, the rear guards told their co-trainees to retract. The guards forthwith
jumped in different directions. Lemuel and Weldon saw their co-trainees being hit by
the said vehicle, falling like dominoes one after the other. Some were thrown, and
others were overrun by the vehicle. The driver did not reduce his speed even after
hitting the first and second columns. The guards then stopped oncoming vehicles to
prevent their comrades from being hit again. 3cräläwvirtualibräry
The trial court judge, together with the City Prosecutor, GLENN and his counsel,
conducted an ocular inspection of the place where the incident happened. They then
proceeded to inspect the Isuzu Elf at the police station. The City Prosecutor
manifested, thus:
The vehicle which we are now inspecting at the police station is the same vehicle
which [was] involved in the October 5, 1995 incident, an Isuzu Elf vehicle colored
light blue with strips painting along the side colored orange and yellow as well as in
front. We further manifest that the windshield was totally damaged and 2/3 portion
of the front just below the windshield was heavily dented as a consequence of the
impact. The lower portion was likewise damaged more particularly in the radiator
guard. The bumper of said vehicle was likewise heavily damaged in fact there is a
cut of the plastic used as a bumper; that the right side of the headlight was likewise
totally damaged. The front signal light, right side was likewise damaged. The side
mirror was likewise totally damaged. The height of the truck from the ground to the
lower portion of the windshield is 5 ft. and the height of the truck on the front level is
5 ft.4cräläwvirtualibräry
PO3 Jose Cabugwas testified that he was assigned at the Investigation Division at
Precinct 6, Cagayan de Oro City, and that at 4 a.m. of 5 October 1995, several
members of the PNP came to their station and reported that they had been bumped
by a certain vehicle. Immediately after receiving the report, he and two other
policemen proceeded to the traffic scene to conduct an ocular inspection. Only
bloodstains and broken particles of the hit-and-run vehicle remained on the highway.
They did not see any brake marks on the highway, which led him to conclude that
the brakes of the vehicle had not been applied. The policemen measured the
bloodstains and found them to be 70 ft. long. 5cräläwvirtualibräry
GLENNs version of the events that transpired that evening is as follows:
At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting Galindez
and the latters fellow band members to provide them with transportation, if possible
an Isuzu Forward, that would bring their band instruments, band utilities and band
members from Macasandig and Corrales, Cagayan de Oro City, to Balingoan. From
there, they were supposed to be taken to Mambajao, Camiguin, to participate in the
San Miguel-sponsored Sabado Nights of the Lanzones Festival from 5-7 October
1995. It was the thirteenth time that Enting had asked such a favor from him. 6 Since
the arrangement was to fetch Galindez and his group at 4:00 a.m. of 5 October 1995,
GLENN immediately went to Cugman, Cagayan de Oro City, to get his Isuzu Elf
truck. After which, he proceeded back to his house at Bugo, Cagayan de Oro City,
and told his wife that he would go to Bukidnon to get his aunts Isuzu Forward truck
because the twenty band members and nine utilities and band instruments could not
be accommodated in the Isuzu Elf truck. Three of his friends asked to go along,
namely, Roldan Paltonag, Andot Pea, and a certain Akut. 7cräläwvirtualibräry
After leaving GLENNs house, the group decided to stop at Celebrity Plaza
Restaurant. GLENN saw his kumpare Danilo Cosin and the latters wife, and joined
them at the table. GLENN finished three bottles of pale pilsen beer. When the Cosin
spouses left, GLENN joined his travelling companions at their table. The group left
at 12:00 midnight for Bukidnon. The environment was dark and foggy, with
occasional rains. It took them sometime looking for the Isuzu Forward truck. Finally,
they saw the truck in Agusan Canyon. Much to their disappointment, the said truck
had mechanical problems. Hence, GLENN decided to go back to Cagayan de Oro
City to tell Enting that they would use the Isuzu Elf truck
instead. 8cräläwvirtualibräry
GLENN drove slowly because the road was slippery. The vicinity was dark: there
was no moon or star; neither were there lampposts. From the Alae junction, he and
his companions used the national highway, traversing the right lane going to
Cagayan de Oro City. At the vicinity of Mambatangan junction, as the Elf was
negotiating a left curve going slightly downward, GLENN saw a very bright and
glaring light coming from the opposite direction of the national highway. GLENN
blinked his headlights as a signal for the other driver to switch his headlights from
bright to dim. GLENN switched his own lights from bright to dim and reduced his
speed from 80 to 60 kilometers per hour. It was only when the vehicles were at a
distance of 10 to 15 meters from each other that the other cars headlights were
switched from bright to dim. As a result, GLENN found it extremely hard to adjust
from high brightness to sudden darkness. 9cräläwvirtualibräry
It was while the truck was still cruising at a speed of 60 km./hr., and immediately
after passing the oncoming vehicle, that GLENN suddenly heard and felt bumping
thuds. At the sound of the first bumping thuds, GLENN put his right foot on the
brake pedal. But the impact was so sudden that he was astonished and afraid. He was
trembling and could not see what were being bumped. At the succeeding bumping
thuds, he was not able to pump the brake, nor did he notice that his foot was pushing
the pedal. He returned to his senses only when one of his companions woke up and
said to him: Gard, it seems we bumped on something. Just relax, we might all die.
Due to its momentum, the Elf continued on its track and was able to stop only when
it was already very near the next curve. 10cräläwvirtualibräry
GLENN could not distinguish in the darkness what he had hit, especially since the
right headlights of the truck had been busted upon the first bumping thuds. In his
confusion and fear, he immediately proceeded home. GLENN did not report the
incident to the Puerto Police Station because he was not aware of what exactly he
had hit. It was only when he reached his house that he noticed that the grill of the
truck was broken; the side mirror and round mirror, missing; and the windshield,
splintered. Two hours later, he heard on Bombo Radyo that an accident had occurred,
and he realized that it was the PNP group that he had hit. GLENN surrendered that
same day to Governor Emano. 11cräläwvirtualibräry
The defense also presented Crescente Galindez, as well as Shirley Almazan of the
PAG-ASA Office, Cagayan de Oro City. The former testified that when he went to
GLENNs house at about 10:00 p.m. of 4 October 1995, there was heavy rain; and at
12:00 midnight, the rain was moderate. He corroborated GLENNs testimony that he
(Crescente) went to GLENNs house that evening in order to hire a truck that would
bring the band instruments, band utilities and band members from Cagayan de Oro to
Camiguin for the Lanzones Festival. 12 Almazan, on the other hand, testified that
based on an observed weather report within the vicinity of Cagayan de Oro City,
there was rain from 8:00 p.m. of October 1995 to 2:00 a.m. the next day; and the sky
was overcast from 11:00 p.m. of 4 October 1995 to 5:00 a.m. of 5 October 1995.
What she meant by overcast is that there was no break in the sky; and, definitely, the
moon and stars could not be seen. 13cräläwvirtualibräry
The prosecution presented rebuttal witness Danilo Olarita whose house was just 100
meters away from the place where the incident occurred. He testified that he was
awakened on that fateful night by a series of loud thuds. Thereafter, a man came to
his house and asked for a glass of water, claiming to have been hit by a vehicle.
Danilo further stated that the weather at the time was fair, and that the soil was dry
and not muddy. 14cräläwvirtualibräry
In its decision of 26 August 1997, the trial court convicted GLENN of the complex
crime of multiple murder, multiple frustrated murder and multiple attempted murder,
with the use of motor vehicle as the qualifying circumstance. It sentenced him to
suffer the penalty of death and ordered him to indemnify each group of the heirs of
the deceased in the amount of P75,000; each of the victims of frustrated murder in
the amount of P30,000; and each of the victims of attempted murder in the amount of
P10,000.
Hence, this automatic review, wherein GLENN contends that the trial court erred (a)
in finding that he caused the Isuzu Elf truck to hit the trainees even after seeing the
rear guards waving and the PNP trainees jogging; (b) in finding that he caused the
truck to run even faster after noticing the first thuds; and (c) in finding that he could
still have avoided the accident from a distance of 150 meters, despite the bright and
glaring light from the oncoming vehicle.
In convicting GLENN, the trial court found that the accused out of mischief and
dare-devilness [sic], in the exhilaration of the night breeze and having dr[u]nk at
least three bottles of beer earlier, merely wanted to scare the rear guard[s] and see
them scamper away as they saw him and his vehicle coming at them to ram them
down. 15cräläwvirtualibräry
Likewise, the OSG posits that the evil motive of the appellant in injuring the jogging
trainees was probably brought by the fact that he had dr[u]nk a total of three (3)
bottles of beer earlier before the incident. 16cräläwvirtualibräry
Not to be outdone, the defense also advances another speculation, i.e., the possibility
that [GLENN] could have fallen asleep out of sheer fatigue in that unholy hour of
3:30 in the early morning, and thus was not able to stop his Isuzu Elf truck when the
bumping thuds were occurring in rapid succession; and after he was able to wake up
upon hearing the shout of his companions, it was already too late, as the bumping
thuds had already occurred. 17cräläwvirtualibräry
Considering that death penalty is involved, the trial court should have been more
scrupulous in weighing the evidence. If we are to subscribe to the trial courts finding
that GLENN must have merely wanted to scare the rear guards, then intent to kill
was wanting. In the absence of a criminal intent, he cannot be held liable for an
intentional felony. All reasonable doubt intended to demonstrate negligence, and not
criminal intent, should be indulged. 18cräläwvirtualibräry
From the convergence of circumstances, we are inclined to believe that the tragic
event was more a product of reckless imprudence than of a malicious intent on
GLENNs part.
First, as testified to by prosecution rebuttal witness Danilo Olarita, the place of the
incident was very dark, as there was no moon. And according to PAG-ASAs
observed weather report within the vicinity of Cagayan de Oro City covering a radius
of 50 kilometers, at the time the event took place, the sky was overcast, i.e., there
was absolutely no break in the thick clouds covering the celestial dome globe; hence,
there was no way for the moon and stars to be seen. Neither were there lampposts
that illuminated the highway.
Second, the jogging trainees and the rear guards were all wearing black T-shirts,
black short pants, and black and green combat shoes, which made them hard to make
out on that dark and cloudy night. The rear guards had neither reflectorized vests or
gloves nor flashlights in giving hand signals.
Third, GLENN was driving on the proper side of the road, the right lane. On the
other hand, the jogging trainees were occupying the wrong lane, the same lane as
GLENNs vehicle was traversing. Worse, they were facing the same direction as
GLENNs truck such that their backs were turned towards the oncoming vehicles
from behind.
Fourth, no convincing evidence was presented to rebut GLENNs testimony that he
had been momentarily blinded by the very bright and glaring lights of the oncoming
vehicle at the opposite direction as his truck rounded the curve. He must have been
still reeling from the blinding effect of the lights coming from the other vehicle when
he plowed into the group of police trainees.
Indeed, as pointed out by appellant, instinct tells one to stop or swerve to a safe place
the moment he sees a cow, dog, or cat on the road, in order to avoid bumping or
killing the same; and more so if the one on the road is a person. It would therefore be
inconceivable for GLENN, then a young college graduate with a pregnant wife and
three very young children who were dependent on him for support, to have
deliberately hit the group with his truck.
The conclusion of the trial court and the OSG that GLENN intentionally rammed and
hit the jogging trainees was premised on the assumption that despite the first
bumping thuds, he continued to accelerate his vehicle instead of applying his brakes,
as shown by the absence of brake marks or skid marks along the traffic scene.
For its part, the defense attributed the continuous movement of GLENNs vehicle to
the confluence of the following factors:
1. The Isuzu Elf truck, a huge vehicle, was moving fast that even if the brakes were
applied the truck would have still proceeded further on account of its momentum,
albeit at a reduced speed, and would have stopped only after a certain distance.
2. The national highway, from Alae to Puerto, Cagayan de Oro City, was made of
fine and smooth asphalt, free from obstructions on the road such as potholes or
excavations. Moreover, the highway was going a little bit downward, more
particularly from the first curve to the place of incident. Hence, it was easier and
faster to traverse a distance of 20 to 25 meters which was the approximate aggregate
distance from the first elements up to the 22nd or 23rd elements of the columns.
3. The weight of each of the trainees (the average of which could be 50 kilograms
only) could hardly make an impact on the 3,900 kilograms truck, which was moving
at a speed ranging from 60 to 70 kilometers per hour.
4. Considering that the width of the truck from the right to the left tires was wide and
the under chassis was elevated, the truck could just pass over two persons lying flat
on the ground without its rubber tires running over the bodies. Thus, GLENN would
not notice any destabilization of the rubber tires.
5. Since the police trainees were jogging in the same direction as the truck was
proceeding, the forward movements constituted a force parallel to the momentum of
the forward-moving truck such that there was even much lesser force resisting the
said ongoing momentum.
It is a well-entrenched rule that if the inculpatory facts are capable of two or more
explanations -- one consistent with the innocence or lesser degree of liability of the
accused, and the other consistent with his guilt or graver responsibility -- the Court
should adopt the explanation which is more favorable to the
accused. 19cräläwvirtualibräry
We are convinced that the incident, tragic though it was in light of the number of
persons killed and seriously injured, was an accident and not an intentional felony. It
is significant to note that there is no shred of evidence that GLENN had an axe to
grind against the police trainees that would drive him into deliberately hitting them
with intent to kill.
Although proof of motive is not indispensable to a conviction especially where the
assailant is positively identified, such proof is, nonetheless, important in determining
which of two conflicting theories of the incident is more likely to be true. 20 Thus,
in People v. Godinez, 21 this Court said that the existence of a motive on the part of
the accused becomes decisive in determining the probability or credibility of his
version that the shooting was purely accidental.
Neither is there any showing of a political angle of a leftist-sponsored massacre of
police elements disguised in a vehicular accident. 22 Even if there be such
evidence, i.e., that the motive of the killing was in furtherance of a rebellion
movement, GLENN cannot be convicted because if such were the case, the proper
charge would be rebellion, and not murder. 23cräläwvirtualibräry
GLENNs offense is in failing to apply the brakes, or to swerve his vehicle to the left
or to a safe place the moment he heard and felt the first bumping thuds. Had he done
so, many trainees would have been spared.
We have once said:
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 from instinct, 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, and those of his fellow-beings, would
ever be exposed to all manner of danger and injury.24cräläwvirtualibräry
The test for determining whether a person is negligent in doing an act whereby injury
or damage results to the person or property of another is this: Could a 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 actually pursued? If so, the
law imposes a duty on the actor to refrain from that course or to take precautions to
guard against its mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed by the ignoring of the admonition born of
this prevision, is always necessary before negligence can be held to
exist. 25cräläwvirtualibräry
GLENN showed an inexcusable lack of precaution. Article 365 of the Revised Penal
Code states that reckless imprudence consists in voluntarily, 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 or failing to
perform such act, taking into consideration (1) his employment or occupation; (2) his
degree of intelligence; (4) his physical condition; and (3) other circumstances
regarding persons, time and place.
GLENN, being then a young college graduate and an experienced driver, should
have known to apply the brakes or swerve to a safe place immediately upon hearing
the first bumping thuds to avoid further hitting the other trainees. By his own
testimony, it was established that the road was slippery and slightly going
downward; and, worse, the place of the incident was foggy and dark. He should have
observed due care in accordance with the conduct of a reasonably prudent man, such
as by slackening his speed, applying his brakes, or turning to the left side even if it
would mean entering the opposite lane (there being no evidence that a vehicle was
coming from the opposite direction). It is highly probable that he was driving at high
speed at the time. And even if he was driving within the speed limits, this did not
mean that he was exercising due care under the existing circumstances and
conditions at the time.
Considering that the incident was not a product of a malicious intent but rather the
result of a single act of reckless driving, GLENN should be held guilty of the
complex crime of reckless imprudence resulting in multiple homicide with serious
physical injuries and less serious physical injuries.
Article 48 of the Revised Penal Code provides that when the 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. Since Article 48 speaks of felonies, it is
applicable to crimes through negligence in view of the definition of felonies in
Article 3 as acts or omissions punishable by law committed either by means of deceit
(dolo) or fault (culpa). 26 In Reodica v. Court of Appeals, 27 we ruled that if a
reckless, imprudent, or negligent act results in two or more grave or less grave
felonies, a complex crime is committed. Thus, in Lapuz v. Court of Appeals, 28 the
accused was convicted, in conformity with Article 48 of the Revised Penal Code, of
the complex crime of homicide with serious physical injuries and damage to property
through reckless imprudence, and was sentenced to a single penalty of imprisonment,
instead of the two penalties imposed by the trial court. Also, in Soriao v. Court of
Appeals, 29 the accused was convicted of the complex crime of multiple homicide
with damage to property through reckless imprudence for causing a motor boat to
capsize, thereby drowning to death its twenty-eight passengers.
The slight physical injuries caused by GLENN to the ten other victims through
reckless imprudence, would, had they been intentional, have constituted light
felonies. Being light felonies, which are not covered by Article 48, they should be
treated and punished as separate offenses. Separate informations should have,
therefore, been filed.
It must be noted that only one information (for multiple murder, multiple frustrated
murder and multiple attempted murder) was filed with the trial court. However,
nothing appears in the record that GLENN objected to the multiplicity of the
information in a motion to quash before his arraignment. Hence, he is deemed to
have waived such defect. 30 Under Section 3, Rule 120 of the Rules of Court, when
two or more offenses are charged in a single complaint or information and the
accused fails to object to it before trial, the court may convict the accused of as many
offenses as are charged and proved, and impose on him the penalty for each of them.
Now, we come to the penalty. Under Article 365 of the Revised Penal Code, any
person who, by reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony shall suffer the penalty of arresto
mayor in its maximum period to prision correccional in its medium period; and if it
would have constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed. The last paragraph thereof provides that the penalty next
higher in degree shall be imposed upon the offender who fails to lend on the spot to
the injured parties such help as may be in his hand to give. This failure to render
assistance to the victim, therefore, constitutes a qualifying circumstance because the
presence thereof raises the penalty by one degree. 31 Moreover, the fifth paragraph
thereof provides that in the imposition of the penalty, the court shall exercise its
sound discretion without regard to the rules prescribed in Article 64. Elsewise stated,
in felonies through imprudence or negligence, modifying circumstances need not be
considered in the imposition of the penalty. 32cräläwvirtualibräry
In the case at bar, it has been alleged in the information and proved during the trial
that GLENN escaped from the scene of the incident, leaving behind the victims. It
being crystal clear that GLENN failed to render aid to the victims, the penalty
provided for under Article 365 shall be raised by one degree. Hence, for reckless
imprudence resulting in multiple homicide with serious physical injuries and less
serious physical injuries, the penalty would be prision correccional in its maximum
period to prision mayor in its medium period. Applying Article 48, the maximum of
said penalty, which is prision mayor in its medium period, should be imposed. For
the separate offenses of reckless imprudence resulting in slight physical injuries,
GLENN may be sentenced to suffer, for each count, the penalty of arresto mayor in
its minimum period.
Although it was established through the testimonies of prosecution witness Lemuel
Pangca 33 and of GLENN that the latter surrendered to Governor Emano of Misamis
Oriental, such mitigating circumstance need not be considered pursuant to the
aforestated fifth paragraph of Article 365.
Under the Indeterminate Sentence Law, GLENN may be sentenced to suffer an
indeterminate penalty whose minimum is within the range of the penalty next lower
in degree to that prescribed for the offense, and whose maximum is that which could
properly be imposed taking into account the modifying circumstances. Hence, for the
complex crime of reckless imprudence resulting in multiple homicide with serious
physical injuries and less serious physical injuries, qualified by his failure to render
assistance to the victims, he may be sentenced to suffer an indeterminate penalty
ranging from arresto mayor in its maximum period to prision correccional in its
medium period, as minimum, to prision mayor in its medium period, as maximum.
As to the crimes of reckless imprudence resulting in slight physical injuries, since the
maximum term for each count is only two months the Indeterminate Sentence Law
will not apply.
As far as the award of damages is concerned, we find a necessity to modify the same.
Conformably with current jurisprudence, 34 we reduce the trial courts award of death
indemnity from P75,000 to P50,000 for each group of heirs of the trainees killed.
Likewise, for lack of factual basis, we delete the awards of P30,000 to each of those
who suffered serious physical injuries and of P10,000 to each of those who suffered
minor physical injuries.
WHEREFORE , the decision of the Regional Trial Court, Branch 38, Cagayan de
Oro City, is hereby SET ASIDE, and another one is rendered holding herein
accused-appellant GLENN DE LOS SANTOS guilty beyond reasonable doubt of (1)
the complex crime of reckless imprudence resulting in multiple homicide with
serious physical injuries and less serious physical injuries, and sentencing him to
suffer an indeterminate penalty of four (4) years of prision correccional,
as minimum, to ten (10) years of prision mayor, as maximum; and (2) ten (10)
counts of reckless imprudence resulting in slight physical injuries and sentencing
him, for each count, to the penalty of two (2) months of arresto mayor. Furthermore,
the awards of death indemnity for each group of heirs of the trainees killed are
reduced to P50,000; and the awards in favor of the other victims are deleted. Costs
against accused-appellant.
SO ORDERED.
G.R. No. 125066 July 8, 1998
ISABELITA REODICA, Petitioner, v. COURT OF APPEALS, and PEOPLE
OF THE PHILIPPINES, Respondents.
DAVIDE, JR., J.:
On the evening of 17 October 1987, petitioner Isabelita Reodica was driving a van
along Doña Soledad Avenue, Better Living Subdivision, Parañaque, Metro Manila.
Allegedly because of her recklessness, her van hit the car of complainant Norberto
Bonsol. As a result, complainant sustained physical injuries, while the damage to his
car amounted to P8,542.00.
Three days after the incident, or on 20 October 1987, the complainant filed an
Affidavit of Complaint 1 against petitioner with the Fiscal's Office.
On 13 January 1988, an information 2 was filed before the Regional Trial Court
(RTC) of Makati (docketed as Criminal Case No. 33919) charging petitioner with
"Reckless Imprudence Resulting in Damage to Property with Slight Physical Injury."
The information read:
The undersigned 2nd Asst. Fiscal accuses Isabelita Reodica of the crime of Reckless
Imprudence Resulting in Damage to Property with Slight Physical Injury as follows:
That on or about the 17th day of October, 1987 in the Municipality of Parañaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
abovementioned accused, Isabelita Velasco Reodica, being then the driver and/or
person in charge of a Tamaraw bearing plate no. NJU-306, did then and there
willfully, unlawfully and feloniously drive, manage and operate the same in a
reckless, careless, negligent and imprudent manner, without regard to traffic laws,
rules and regulations and without taking the necessary care and precaution to avoid
damage to property and injuries to person, causing by such negligence, carelessness
and imprudence the said vehicle to bump/collide with a Toyota Corolla bearing plate
no. NIM-919 driven and owned by Norberto Bonsol, thereby causing damage
amounting to P8,542.00, to the damage and prejudice of its owner, in the
aforementioned amount of P8,542.00.
That as further consequence due to the strong impact, said Norberto Bonsol suffered
bodily injuries which required medical attendance for a period of less that nine (9)
days and incapacitated him from performing his customary labor for the same period
of time.
Upon arraignment, petitioner pleaded not guilty to the charge. Trial then ensued.
On 31 January 1991, the RTC of Makati, Branch 145, rendered a
decision 3 convicting petitioner of the "quasi offense of reckless imprudence
resulting in damage to property with slight physical injuries," and sentencing her:
[t]o suffer imprisonment of six (6) months of arresto mayor, and to pay the
complainant, Norberto Bonsol y Atienza, the sum of Thirteen Thousand Five
Hundred Forty-Two (P13,542), Philippine Currency, without subsidiary impairment
in case of insolvency; and to pay the costs. 4
The trial court justified imposing a 6-month prison term in this wise:
As a result of the reckless imprudence of the accused, complainant suffered slight
physical injuries (Exhs. D, H and I). In view of the resulting physical injuries, the
penalty to be imposed is not fine, but imprisonment (Gregorio, Fundamental of
Criminal Law Review, Eight Edition 1988, p. 711). Slight physical injuries thru
reckless imprudence is now punished with penalty of arresto mayor in its maximum
period (People v. Aguiles, L-11302, October 28, 1960, cited in Gregorio's book, p.
718). 5
As to the sum of P13,542.00, this represented the cost of the car repairs (P8,542.00)
and medical expenses (P5,000.00).
Petitioner appealed from the decision to the Court of Appeals, which docketed the
case as CA-G.R. CR No. 14660. After her motions for extension of time to file her
brief were granted, she filed a Motion to Withdraw Appeal for Probation Purposes,
and to Suspend, Ex Abundanti Cautela, Period for Filing Appellant's Brief. However,
respondent Court of Appeals denied this motion and directed petitioner to file her
brief. 6
After passing upon the errors imputed by petitioner to the trial court, respondent
Court of Appeals rendered a decision 7 on 31 January 1996 affirming the appealed
decision.
Petitioner subsequently filed a motion for reconsideration 8 raising new issues, thus:
NOW THAT AN ACQUITTAL SEEMS IMPOSSIBLE, MAY WE REVISIT THE
PENALTY AND MOVE THAT IT BE REVIEWED AND SET ASIDE SINCE IT
IS RESPECTFULLY SUBMITTED TO BE ERROR TO COMPLEX DAMAGE TO
PROPERTY AND SLIGHT PHYSICAL INJURIES, AS BOTH ARE LIGHT
OFFENSES, OVER WHICH THE RESPONDENT COURT HAD NO
JURISDICTION AND EVEN ASSUMING SUCH JURISDICTION, IT CANNOT
IMPOSE A PENALTY IN EXCESS OF WHAT IS AUTHORIZED BY LAW. 9
xxx xxx xxx
REVERSAL OF THE DECISION REMAINS POSSIBLE ON GROUNDS OF
PRESCRIPTION OR LACK OF JURISDICTION. 10
In its Resolution of 24 May 1996, the Court of Appeals denied petitioner's motion for
reconsideration for lack of merit, as well as her supplemental motion for
reconsideration. Hence, the present petition for review on certiorari under Rule 45 of
the Rules of Court premised on the following grounds:
RESPONDENT COURT OF APPEALS' DECISION DATED JANUARY 31, 1996
AND MORE SO ITS RESOLUTION DATED MAY 24, 1996, ARE CONTRARY
TO LAW AND GROSSLY ERRONEOUS IN THAT THEY IMPOSED A
PENALTY IN EXCESS OF WHAT IS AUTHORIZED BY LAW FOR THE
CRIME OF RECKLESS IMPRUDENCE RESULTING IN SLIGHT PHYSICAL
INJURIES, ON THE BASIS OF A CLERICAL ERROR IN A SECONDARY
SOURCE.
A. IN THE CASE OF PEOPLE V. AGUILAR, 11 THE SAME CASE WHERE THE
COURT A QUO BASED ITS FINDING OF A PENALTY WHEN IT AFFIRMED
THE DECISION OF THE REGIONAL TRIAL COURT, WHAT WAS STATED IN
THE ORIGINAL TEXT OF SAID CASE IS THAT THE PENALTY FOR SLIGHT
PHYSICAL INJURIES THROUGH RECKLESS IMPRUDENCE IS ARRESTO
MENOR AND NOT ARRESTO MAYOR. IT IS GRAVE ERROR FOR THE
RESPONDENT COURT TO PUNISH PETITIONER MORE THAN SHE SHOULD
OR COULD BE PUNISHED BECAUSE OF A CLERICAL ERROR COPIED
FROM A SECONDARY SOURCE.
B. THE RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION WHEN IT COMPLEXED THE CRIME OF RECKLESS
IMPRUDENCE RESULTING IN DAMAGE TO PROPERTY AND SLIGHT
PHYSICAL INJURIES IMPOSING A SINGLE EXCESSIVE PENALTY IN ITS
ELLIPTICAL RESOLUTION OF MAY 24, 1996.
C. THE RESPONDENT COURT OF APPEALS GRAVELY ERRED WHEN IT
AFFIRMED THE TRIAL COURT'S DECISION NOTWITHSTANDING THE
DEFENSE OF PRESCRIPTION AND LACK OF JURISDICTION.
Anent the first ground, petitioner claims that the courts below misquoted not only the
title, but likewise the ruling of the case cited as authority regarding the penalty for
slight physical injuries through reckless imprudence. Concretely, the title of the case
was not People v. Aguiles, but People v. Aguilar; while the ruling was that the
penalty for such quasi offense was arresto menor - not arresto mayor.
As regards the second assigned error, petitioner avers that the courts below should
have pronounced that there were two separate light felonies involved, namely: (1)
reckless imprudence with slight physical injuries; and (2) reckless imprudence with
damage to property, instead of considering them a complex crime. Two light
felonies, she insists, "do not . . . rate a single penalty of arresto mayor or
imprisonment of six months," citing Lontok v. Gorgonio, 12 thus:
Where the single act of imprudence resulted in double less serious physical injuries,
damage to property amounting to P10,000.00 and slight physical injuries, a chief of
police did not err in filing a separate complaint for the slight physical injuries and
another complaint for the lesiones menos graves and damage to property (Arcaya vs.
Teleron, L-37446, May 31, 1974, 57 SCRA 363, 365).
The case of Angeles vs. Jose, 96 Phil. 151, cited by investigating fiscal, is different
from the instant case because in that case the negligent act resulted in the offenses
of lesiones menos graves and damage to property which were both less grave
felonies and which, therefore, constituted a complex crime.
In the instant case, following the ruling in the Turla case, the offense of lesiones
leves through reckless imprudence should have been charged in a separate
information.
She then suggests that "at worst, the penalties of two light offenses, both imposable
in their maximum period and computed or added together, only sum up to 60 days
imprisonment and not six months as imposed by the lower courts."
On the third assigned error, petitioner insists that the offense of slight physical
injuries through reckless imprudence, being punishable only by arresto menor, is a
light offense; as such, it prescribes in two months. Here, since the information was
filed only on 13 January 1988, or almost three months from the date the vehicular
collision occurred, the offense had already prescribed, again citing Lontok, thus:
In the instant case, following the ruling in the Turla case, the offense of lesiones
leves through reckless imprudence should have been charged in a separate
information. And since, as a light offense, it prescribes in two months, Lontok's
criminal liability therefor was already extinguished (Arts. 89[5], 90 and 91, Revised
Penal Code in relation to sec. 2[e] and [f], Rule 117, Rules of Court). The trial court
committed a grave abuse of discretion in not sustaining Lontok's motion to quash
that part of the information charging him with that light offense.
Petitioner further claims that the information was filed with the wrong court, since
Regional Trial Courts do not deal with arresto menor cases. She submits that damage
to property and slight physical injuries are light felonies and thus covered by the
rules on summary procedure; therefore, only the filing with the proper Metropolitan
Trial Court could have tolled the statute of limitations, this time invoking Zaldivia v.
Reyes. 13
In its Comment filed on behalf of public respondents, the Office of the Solicitor
General (OSG) agrees with petitioner that the penalty should have been arresto
menor in its maximum period, instead of arresto mayor, pursuant to Article 365 of
the Revised Penal Code.
As to the second assigned error, the OSG contends that conformably with Buerano v.
Court of Appeals, 14 which frowns upon splitting of crimes and prosecution, it was
proper for the trial court to "complex" reckless imprudence with slight physical
injuries and damage to property because what the law seeks to penalize is the single
act of reckless imprudence, not the results thereof; hence, there was no need for two
separate informations.
To refute the third assigned error, the OSG submits that although the Municipal Trial
Court had jurisdiction to impose arresto menor for slight physical injuries, the
Regional Trial Court properly took cognizance of this case because it had the
jurisdiction to impose the higher penalty for the damage to property, which was a
fine equal to thrice the value of P8,542.00. On this score, the OSG cites Cuyos v.
Garcia. 15
The OSG then debunks petitioner's defense of prescription of the crime, arguing that
the prescriptive period here was tolled by the filing of the complaint with the fiscal's
office three days after the incident, pursuant to People v. Cuaresma 16 and Chico v.
Isidro. 17
In her Reply to the Comment of the OSG, petitioner expressed gratitude and
appreciation to the OSG in joining cause with her as to the first assigned error.
However, she considers the OSG's reliance on Buerano v. Court of Appeals 18 as
misplaced, for nothing there validates the "complexing" of the crime of reckless
imprudence with physical injuries and damage to property; besides, in that case, two
separate informations were filed - one for slight and serious physical injuries through
reckless imprudence and the other for damage to property through reckless
imprudence. She then insists that in this case, following Arcaya v.
Teleron 19 and Lontok v. Gorgonio, 20 two informations should have been filed. She
likewise submits that Cuyos v. Garcia 21 would only apply here on the assumption
that it was proper to "complex" damage to property through reckless imprudence
with slight physical injuries through reckless imprudence. Chico v. Isidro 22 is
likewise "inapposite," for it deals with attempted homicide, which is not covered by
the Rule on Summary Procedure.
Petitioner finally avers that People v. Cuaresma 23 should not be given retroactive
effect; otherwise, it would either unfairly prejudice her or render nugatory the en
banc ruling in Zaldivia 24 favorable to her.
The pleadings thus raise the following issues:
I. Whether the penalty imposed on petitioner is correct.
II. Whether the quasi offenses of reckless imprudence resulting in damage to
property in the amount of P8,542.00 and reckless imprudence resulting in slight
physical injuries are light felonies.
III. Whether the rule on complex crimes under Article 48 of the Revised Penal Code
applies to the quasi offenses in question.
IV. Whether the duplicity of the information may be questioned for the first time on
appeal.
V. Whether the Regional Trial Court had jurisdiction over the offenses in question.
VI. Whether the quasi offenses in question have already prescribed.
I. The Proper Penalty
We agree with both petitioner and the OSG that the penalty of six months of arresto
mayor imposed by the trial court and affirmed by respondent Court of Appeals is
incorrect. However, we cannot subscribe to their submission that the penalty
of arresto menor in its maximum period is the proper penalty.
Art. 365 of the Revised Penal Code provides:
Art. 365. Imprudence and negligence. - Any person who, by reckless imprudence,
shall commit any act which, had it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its maximum period to prision
correccional in its medium period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods shall be imposed;
if it would have constituted a light felony, the penalty of arresto menor in its
maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which
would otherwise constitute a grave felony, shall suffer the penalty of arresto
mayor in its medium and maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only resulted in
damage to the property of another, the offender shall be punished by a fine ranging
from an amount equal to the value of said damages to three times such value, but
which shall in no case be less than 25 pesos.
A fine not exceeding 200 pesos and censure shall be imposed upon any person who,
by simple imprudence or negligence, shall cause some wrong which, if done
maliciously, would have constituted a light felony.
In the imposition of these penalties, the courts shall exercise their sound discretion,
without regard to the rules prescribed in Article 64.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those provided
in the first two paragraphs of this article, in which case the courts shall impose the
penalty next lower in degree than that which should be imposed in the period which
they may deem proper to apply.
According to the first paragraph of the aforequoted Article, the penalty for reckless
imprudence resulting in slight physical injuries, a light felony, is arresto menor in its
maximum period, with a duration of 21 to 30 days. If the offense of slight physical
injuries is, however, committed deliberately or with malice, it is penalized
with arresto menor under Article 266 of the Revised Penal Code, with a duration of
1 day to 30 days. Plainly, the penalty then under Article 266 may be either lower
than or equal to the penalty prescribed under the first paragraph of Article 365. This
being the case, the exception in the sixth paragraph of Article 365 applies. Hence, the
proper penalty for reckless imprudence resulting in slight physical injuries is public
censure, this being the penalty next lower in degree to arresto menor. 25
As to reckless imprudence resulting in damage to property in the amount of
P8,542.00, the third paragraph of Article 365, which provides for the penalty of fine,
does not apply since the reckless imprudence in this case did not result in damage to
property only. What applies is the first paragraph of Article 365, which provides
for arresto mayor in its minimum and medium periods (1 month and 1 day to 4
months) for an act committed through reckless imprudence which, had it been
intentional, would have constituted a less grave felony. Note that if the damage to the
extent of P8,542.00 were caused deliberately, the crime would have been malicious
mischief under Article 329 of the Revised Penal Code, and the penalty would then
be arresto mayor in its medium and maximum periods (2 months and 1 day to 6
months which is higher than that prescribed in the first paragraph of Article 365). If
the penalty under Article 329 were equal to or lower than that provided for in the
first paragraph, then the sixth paragraph of Article 365 would apply, i.e., the penalty
next lower in degree, which is arresto menor in its maximum period to arresto
mayor in its minimum period or imprisonment from 21 days to 2 months.
Accordingly, the imposable penalty for reckless imprudence resulting in damage to
property to the extent of P8,542.00 would be arresto mayor in its minimum and
medium periods, which could be anywhere from a minimum of 1 month and 1 day to
a maximum of 4 months, at the discretion of the court, since the fifth paragraph of
Article 365 provides that in the imposition of the penalties therein provided "the
courts shall exercise their sound discretion without regard to the rules prescribed in
article 64."
II. Classification of the Quasi Offense in Question.
Felonies committed not only by means of deceit (dolo), but likewise by means of
fault (culpa). There is deceit when the wrongful act is performed with deliberate
intent; and there is fault when the wrongful act results from imprudence, negligence,
lack of foresight or lack of skill. 26
As earlier stated, reckless imprudence resulting in slight physical injuries is
punishable by public censure only. Article 9, paragraph 3, of the Revised Penal Code
defines light felonies as infractions of law carrying the penalty of arresto menor or a
fine not exceeding P200.00, or both. Since public censure is classified under Article
25 of the Code as a light penalty, and is considered under the graduated scale
provided in Article 71 of the same Code as a penalty lower than arresto menor, it
follows that the offense of reckless imprudence resulting in slight physical injuries is
a light felony.
On the other hand, reckless imprudence also resulting in damage to property is, as
earlier discussed, penalized with arresto mayor in its minimum and medium periods.
Since arresto mayor is a correctional penalty under Article 25 of the Revised Penal
Code, the quasi offense in question is a less grave felony - not a light felony as
claimed by petitioner.
III. Applicability of the Rule on Complex Crimes.
Since criminal negligence may, as here, result in more than one felony, should
Article 48 of the Revised Code on complex crimes be applied? Article 48 provides as
follows:
Art. 48. Penalty for complex crimes. - When a single act constitutes two or more
grave or less grave felonies, or when an offense is necessary a means for committing
the other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period.
Clearly, if a reckless, imprudent or negligent act results in two or more grave or less
grave felonies, a complex crime is committed. However, in Lontok v.
Gorgonio, 27 this Court declared that where one of the resulting offenses in criminal
negligence constitutes a light felony, there is no complex crime, thus:
Applying article 48, it follows that if one offense is light, there is no complex crime.
The resulting offenses may be treated as separate or the light felony may be absorbed
by the grave felony. Thus, the light felonies of damage to property and slight
physical injuries, both resulting from a single act of imprudence, do not constitute a
complex crime. They cannot be charged in one information. They are separate
offenses subject to distinct penalties (People vs. Turla, 50 Phil. 1001; See People vs.
Estipona, 70 Phil. 513).
Where the single act of imprudence resulted in double less serious physical injuries,
damage to property amounting to P10,000 and slight physical injuries, a chief of
police did not err in filing a separate complaint for the slight physical injuries and
another complaint for the lesiones menor graves and damage to property [Arcaya vs.
Teleron, L-37446, May 31, 1974, 57 SCRA 363, 365].
Hence, the trial court erred in considering the following felonies as a complex crime:
the less grave felony of reckless imprudence resulting in damage to property in the
amount of P8,542.00 and the light felony of reckless imprudence resulting in physical
injuries.
IV. The Right to Assail the Duplicity of the Information.
Following Lontok, the conclusion is inescapable here, that the quasi offense of
reckless imprudence resulting in slight physical injuries should have been charged in
a separate information because it is not covered by Article 48 of the Revised Penal
Code. However, petitioner may no longer question, at this stage, the duplicitous
character of the information, i.e., charging two separate offenses in one information,
to wit: (1) reckless imprudence resulting in damage to property; and (2) reckless
imprudence resulting in slight physical injuries. This defect was deemed waived by
her failure to raise it in a motion to quash before she pleaded to the
information. 28 Under Section 3, Rule 120 of the Rules of Court, when two or more
offenses are charged in a single complaint or information and the accused fails to
object to it before trial, the court may convict the accused of as many offenses as are
charged and proved and impose on him the penalty for each of them. 29
V. Which Court Has Jurisdiction Over the
Quasi Offenses in Question.
The jurisdiction to try a criminal action is to be determined by the law in force at the
time of the institution of the action, unless the statute expressly provides, or is
construed to the effect that it is intended to operate as to actions pending before its
enactment. 30
At the time of the filing of the information in this case, the law in force was Batas
Pambansa Blg. 129, otherwise known as "The Judiciary Reorganization Act of
1980." Section 32(2) 31 thereof provided that except in cases falling within the
exclusive original jurisdiction of the Regional Trial Courts and of the
Sandiganbayan, the Metropolitan Trial Courts (MTCs), Municipal Trial Courts
(MTCs), and Municipal Circuit Trial Courts (MCTCs) had exclusive original
jurisdiction over "all offenses punishable with imprisonment of got exceeding four
years and two months, or a fine of not more than four thousand pesos, or both fine
and imprisonment, regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value or amount thereof."
The criminal jurisdiction of the lower courts was then determined by the duration of
the imprisonment and the amount of fine prescribed by law for the offense charged.
The question thus arises as to which court has jurisdiction over offenses punishable
by censure, such as reckless imprudence resulting in slight physical injuries.
In Uy Chin Hua v. Dinglasan, 32 this Court found that a lacuna existed in the law as
to which court had jurisdiction over offenses penalized with destierro, the duration
of which was from 6 months and 1 day to 6 years, which was co-extensive
with prision correccional. We then interpreted the law in this wise:
Since the legislature has placed offenses penalized with arresto mayor under the
jurisdiction of justice of the peace and municipal courts, and since by Article 71 of
the Revised Penal Code, as amended by Section 3 of Commonwealth Act No. 217, it
has placed destierro below arresto mayor as a lower penalty than the latter, in the
absence of any express provision of law to the contrary it is logical and reasonable to
infer from said provisions that its intention was to place offenses penalized
with destierro also under the jurisdiction of justice of the peace and municipal courts
and not under that of courts of first instance.
Similarly, since offenses punishable by imprisonment of not exceeding 4 years and 2
months were within the jurisdictional ambit of the MeTCs, MTCs and MCTCs, it
follows that those penalized with censure, which is a penalty lower than arresto
menor under the graduated scale in Article 71 of the Revised Penal Code and with a
duration of 1 to 30 days, should also fall within the jurisdiction of said courts. Thus,
reckless imprudence resulting in slight physical injuries was cognizable by said
courts.
As to the reckless imprudence resulting in damage to property in the amount of
P8,542.00, the same was also under the jurisdiction of MeTCs, MTCs or MCTCs
because the imposable penalty therefor was arresto mayor in its minimum and
medium periods - the duration of which was from 1 month and 1 day to 4 months.
Criminal Case No. 33919 should, therefore, be dismissed for lack of jurisdiction on
the part of the RTC of Makati.
VI. Prescription of the Quasi Offenses in Question.
Pursuant to Article 90 of the Revised Penal Code, reckless imprudence resulting in
slight physical injuries, being a light felony, prescribes in two months. On the other
hand, reckless imprudence resulting in damage to property in the amount of
P8,542.00, being a less grave felony whose penalty is arresto mayor in its minimum
and medium periods, prescribes in five years.
To resolve the issue of whether these quasi offenses have already prescribed, it is
necessary to determine whether the filing of the complaint with the fiscal's office
three days after the incident in question tolled the running of the prescriptive period.
Art. 91 of the Revised Penal Code provides:
Art. 91. Computation of prescription of offenses. - The period of prescription shall
commence to run from the day on which the crime is discovered by the offended
party, the authorities, or their agents, and shall be interrupted by the filing of the
complaint of information, and shall commence to run again when such proceedings
terminate without the accused being convicted or acquitted, or are unjustifiably
stopped by any reason not imputable to him. (emphasis supplied)
Notably, the aforequoted article, in declaring that the prescriptive period "shall be
interrupted by the filing of the complaint or information," does not distinguish
whether the complaint is filed for preliminary examination or investigation only or
for an action on the merits. 33 Thus, in Francisco v. Court of Appeals 34 and People v.
Cuaresma, 35 this Court held that the filing of the complaint even with the fiscal's
office suspends the running of the statute of limitations.
We cannot apply Section 9 36 of the Rule on Summary Procedure, which provides
that in cases covered thereby, such as offenses punishable by imprisonment not
exceeding 6 months, as in the instant case, "the prosecution commences by the filing
of a complaint or information directly with the MeTC, RTC or MCTC without need
of a prior preliminary examination or investigation; provided that in Metropolitan
Manila and Chartered Cities, said cases may be commenced only by information."
However, this Section cannot be taken to mean that the prescriptive period is
interrupted only by the filing of a complaint or information directly with said courts.
It must be stressed that prescription in criminal cases is a matter of substantive law.
Pursuant to Section 5(5), Article VIII of the Constitution, this Court, in the exercise
of its rule-making power, is not allowed to diminish, increase or modify substantive
rights. 37 Hence, in case of conflict between the Rule on Summary Procedure
promulgated by this Court and the Revised Penal Code, the latter prevails.
Neither does Zaldivia control in this instance. It must be recalled that what was
involved therein was a violation of a municipal ordinance; thus, the applicable law
was not Article 91 of the Revised Penal Code, but Act. No. 3326, as amended,
entitled "An Act to Establish Periods of Prescription for Violations Penalized by
Special Acts and Municipal Ordinances and to Provide When Prescription Shall
Begin to Run." Under Section 2 thereof, the period of prescription is suspended only
when judicial proceedings are instituted against the guilty party. Accordingly, this
Court held that the prescriptive period was not interrupted by the filing of the
complaint with the Office of the Provincial Prosecutor, as such did not constitute a
judicial proceeding; what could have tolled the prescriptive period there was only the
filing of the information in the proper court.
In the instant case, as the offenses involved are covered by the Revised Penal Code,
Article 91 thereof and the rulings in Francisco and Cuaresma apply. Thus, the
prescriptive period for the quasi offenses in question was interrupted by the filing of
the complaint with the fiscal's office three days after the vehicular mishap and
remained tolled pending the termination of this case. We cannot, therefore, uphold
petitioner's defense of prescription of the offenses charged in the information in this
case.
WHEREFORE, the instant petition is GRANTED. The challenge decision of
respondent Court of Appeals in CA-G.R. CR No. 14660 is SET ASIDE as the
Regional Trial Court, whose decision was affirmed therein, had no jurisdiction over
Criminal Case No. 33919.
Criminal Case No. 33919 is ordered DISMISSED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 92163 June 5, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN
PONCE ENRILE, petitioner
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of
Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE,
PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY
PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF
INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA
TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND
ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE
PERSON OF JUAN PONCE ENRILE, respondents.
G.R. No. 92164 June 5, 1990
SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,
vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE,
FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON.
JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial
Court, Quezon City, Branch 103, respondents.
NARVASA, J.:
Thirty-four years after it wrote history into our criminal jurisprudence, People vs.
Hernandez 1 once more takes center stage as the focus of a confrontation at law that
would re-examine, if not the validity of its doctrine, the limits of its applicability. To
be sure, the intervening period saw a number of similar cases 2 that took issue with
the ruling-all with a marked lack of success-but none, it would Beem, where season
and circumstance had more effectively conspired to attract wide public attention and
excite impassioned debate, even among laymen; none, certainly, which has seen
quite the kind and range of arguments that are now brought to bear on the same
question.
The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority
Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by
Director Alfredo Lim of the National Bureau of Investigation on the strength of a
warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City
Branch 103, in Criminal Case No. 9010941. The warrant had issued on an
information signed and earlier that day filed by a panel of prosecutors composed of
Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis
and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the
spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of
rebellion with murder and multiple frustrated murder allegedly committed during the
period of the failed coup attempt from November 29 to December 10, 1990. Senator
Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue,
Manila, without bail, none having been recommended in the information and none
fixed in the arrest warrant. The following morning, February 28, 1990, he was
brought to Camp Tomas Karingal in Quezon City where he was given over to the
custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo
Dula Torres.3
On the same date of February 28, 1990, Senator Enrile, through counsel, filed the
petition for habeas corpus herein (which was followed by a supplemental petition
filed on March 2, 1990), alleging that he was deprived of his constitutional rights in
being, or having been:
(a) held to answer for criminal offense which does not exist in the
statute books;
 (b) charged with a criminal offense in an information for which no
complaint was initially filed or preliminary investigation was
conducted, hence was denied due process;
(c) denied his right to bail; and
(d) arrested and detained on the strength of a warrant issued
without the judge who issued it first having personally determined
the existence of probable cause. 4
The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for
hearing on March 6, 1990. 5 On March 5, 1990, the Solicitor General filed a
consolidated return 6 for the respondents in this case and in G.R. No. 92164 7 Which
had been contemporaneously but separately filed by two of Senator Enrile's co-
accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said
return urged that the petitioners' case does not fall within the Hernandez ruling
because-and this is putting it very simply-the information in Hernandez charged
murders and other common crimes committed as a necessary means for the
commission of rebellion, whereas the information against Sen. Enrile et al. charged
murder and frustrated murder committed on the occasion, but not in furtherance, of
rebellion. Stated otherwise, the Solicitor General would distinguish between the
complex crime ("delito complejo") arising from an offense being a necessary means
for committing another, which is referred to in the second clause of Article 48,
Revised Penal Code, and is the subject of the Hernandez ruling, and the compound
crime ("delito compuesto") arising from a single act constituting two or more grave
or less grave offenses referred to in the first clause of the same paragraph, with
which Hernandez was not concerned and to which, therefore, it should not apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990, after which
the Court issued its Resolution of the same date 8 granting Senator Enrile and the
Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours
from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and
P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued
without prejudice to a more extended resolution on the matter of the provisional
liberty of the petitioners and stressed that it was not passing upon the legal issues
raised in both cases. Four Members of the Court 9 voted against granting bail to
Senator Enrile, and two 10 against granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated in
Senator Enrile's petition, G.R. No. 92163.
The parties' oral and written pleas presented the Court with the following options:
(a) abandon Hernandez and adopt the minority view expressed in
the main dissent of Justice Montemayor in said case that rebellion
cannot absorb more serious crimes, and that under Article 48 of the
Revised Penal Code rebellion may properly be complexed with
common offenses, so-called; this option was suggested by the
Solicitor General in oral argument although it is not offered in his
written pleadings;
(b) hold Hernandez applicable only to offenses committed in
furtherance, or as a necessary means for the commission, of
rebellion, but not to acts committed in the course of a rebellion
which also constitute "common" crimes of grave or less grave
character;
(c) maintain Hernandez as applying to make rebellion absorb all
other offenses committed in its course, whether or not necessary to
its commission or in furtherance thereof.
On the first option, eleven (11) Members of the Court voted against abandoning
Hernandez. Two (2) Members felt that the doctrine should be re-examined. 10-A In
the view of the majority, the ruling remains good law, its substantive and logical
bases have withstood all subsequent challenges and no new ones are presented here
persuasive enough to warrant a complete reversal. This view is reinforced by the fact
that not too long ago, the incumbent President, exercising her powers under the 1986
Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942
of the former regime which precisely sought to nullify or neutralize Hernandez by
enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that
"(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter
(Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon
which graver penalties are imposed by law are committed, the penalty for the most
serious offense in its maximum period shall be imposed upon the offender."' 11 In
thus acting, the President in effect by legislative flat reinstated Hernandez as binding
doctrine with the effect of law. The Court can do no less than accord it the same
recognition, absent any sufficiently powerful reason against so doing.
On the second option, the Court unanimously voted to reject the theory
that Hernandez is, or should be, limited in its application to offenses committed as a
necessary means for the commission of rebellion and that the ruling should not be
interpreted as prohibiting the complexing of rebellion with other common crimes
committed on the occasion, but not in furtherance, thereof. While four Members of
the Court felt that the proponents' arguments were not entirely devoid of merit, the
consensus was that they were not sufficient to overcome what appears to be the real
thrust of Hernandez to rule out the complexing of rebellion with any other offense
committed in its course under either of the aforecited clauses of Article 48, as is
made clear by the following excerpt from the majority opinion in that case:
There is one other reason-and a fundamental one at that-why
Article 48 of our Penal Code cannot be applied in the case at bar. If
murder were not complexed with rebellion, and the two crimes
were punished separately (assuming that this could be done), the
following penalties would be imposable upon the movant, namely:
(1) for the crime of rebellion, a fine not exceeding P20,000
and prision mayor, in the corresponding period, depending upon
the modifying circumstances present, but never exceeding 12 years
of prision mayor, and (2) for the crime of murder, reclusion
temporal in its maximum period to death, depending upon the
modifying circumstances present. in other words, in the absence of
aggravating circumstances, the extreme penalty could not be
imposed upon him. However, under Article 48 said penalty would
have to be meted out to him, even in the absence of a single
aggravating circumstance. Thus, said provision, if construed in
conformity with the theory of the prosecution, would
be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose
of favoring the culprit, not of sentencing him to a penalty more
severe than that which would be proper if the several acts
performed by him were punished separately. In the words of
Rodriguez Navarro:
La unificacion de penas en los casos de concurso
de delitos a que hace referencia este articulo (75
del Codigo de 1932), esta basado francamente en
el principio pro reo.' (II Doctrina Penal del
Tribunal Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71
(later 75) of the Spanish Penal Code (the counterpart of our Article
48), as amended in 1908 and then in 1932, reading:
Las disposiciones del articulo anterior no son
aplicables en el caso de que un solo hecho
constituya dos o mas delitos, o cuando el uno de
ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena
correspondiente al delito mas grave en su grado
maximo, hasta el limite que represents la suma
de las que pudieran imponerse, penando
separadamente los delitos.
Cuando la pena asi computada exceda de este
limite, se sancionaran los delitos por separado.
(Rodriguez Navarro, Doctrina Penal del Tribunal
Supremo, Vol. II, p. 2163)
and that our Article 48 does not contain the qualification inserted
in said amendment, restricting the imposition of the penalty for the
graver offense in its maximum period to the case when it does not
exceed the sum total of the penalties imposable if the acts charged
were dealt with separately. The absence of said limitation in our
Penal Code does not, to our mind, affect substantially the spirit of
said Article 48. Indeed, if one act constitutes two or more offenses,
there can be no reason to inflict a punishment graver than that
prescribed for each one of said offenses put together. In directing
that the penalty for the graver offense be, in such case, imposed in
its maximum period, Article 48 could have had no other purpose
than to prescribe a penalty lower than the aggregate of the penalties
for each offense, if imposed separately. The reason for this
benevolent spirit of article 48 is readily discernible. When two or
more crimes are the result of a single act, the offender is deemed
less perverse than when he commits said crimes thru separate and
distinct acts. Instead of sentencing him for each crime
independently from the other, he must suffer the maximum of the
penalty for the more serious one, on the assumption that it is less
grave than the sum total of the separate penalties for each
offense. 12
The rejection of both options shapes and determines the primary ruling of the Court,
which is that Hernandez remains binding doctrine operating to prohibit the
complexing of rebellion with any other offense committed on the occasion thereof,
either as a means necessary to its commission or as an unintended effect of an
activity that constitutes rebellion.
This, however, does not write finis to the case. Petitioner's guilt or innocence is not
here inquired into, much less adjudged. That is for the trial court to do at the proper
time. The Court's ruling merely provides a take-off point for the disposition of other
questions relevant to the petitioner's complaints about the denial of his rights and to
the propriety of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed against the
petitioner does in fact charge an offense. Disregarding the objectionable phrasing
that would complex rebellion with murder and multiple frustrated murder, that
indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court
said:
 In conclusion, we hold that, under the allegations of the amended
information against defendant-appellant Amado V. Hernandez, the
murders, arsons and robberies described therein are mere
ingredients of the crime of rebellion allegedly committed by said
defendants, as means "necessary" (4) for the perpetration of said
offense of rebellion; that the crime charged in the aforementioned
amended information is, therefore, simple rebellion, not the
complex crime of rebellion with multiple murder, arsons and
robberies; that the maximum penalty imposable under such charge
cannot exceed twelve (12) years of prision mayor and a fine of
P2H,HHH; and that, in conformity with the policy of this court in
dealing with accused persons amenable to a similar punishment,
said defendant may be allowed bail. 13
The plaint of petitioner's counsel that he is charged with a crime that does not exist in
the statute books, while technically correct so far as the Court has ruled that rebellion
may not be complexed with other offenses committed on the occasion thereof, must
therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez,
the information does indeed charge the petitioner with a crime defined and punished
by the Revised Penal Code: simple rebellion.
Was the petitioner charged without a complaint having been initially filed and/or
preliminary investigation conducted? The record shows otherwise, that a complaint
against petitioner for simple rebellion was filed by the Director of the National
Bureau of Investigation, and that on the strength of said complaint a preliminary
investigation was conducted by the respondent prosecutors, culminating in the filing
of the questioned information. 14 There is nothing inherently irregular or contrary to
law in filing against a respondent an indictment for an offense different from what is
charged in the initiatory complaint, if warranted by the evidence developed during
the preliminary investigation.
It is also contended that the respondent Judge issued the warrant for petitioner's
arrest without first personally determining the existence of probable cause by
examining under oath or affirmation the complainant and his witnesses, in violation
of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it
is not the unavoidable duty of the judge to make such a personal examination, it
being sufficient that he follows established procedure by personally evaluating the
report and the supporting documents submitted by the prosecutor.16 Petitioner claims
that the warrant of arrest issued barely one hour and twenty minutes after the case
was raffled off to the respondent Judge, which hardly gave the latter sufficient time
to personally go over the voluminous records of the preliminary
investigation. 17 Merely because said respondent had what some might consider only
a relatively brief period within which to comply with that duty, gives no reason to
assume that he had not, or could not have, so complied; nor does that single
circumstance suffice to overcome the legal presumption that official duty has been
regularly performed.
Petitioner finally claims that he was denied the right to bail. In the light of the Court's
reaffirmation of Hernandez as applicable to petitioner's case, and of the logical and
necessary corollary that the information against him should be considered as
charging only the crime of simple rebellion, which is bailable before conviction, that
must now be accepted as a correct proposition. But the question remains: Given the
facts from which this case arose, was a petition for habeas corpus in this Court the
appropriate vehicle for asserting a right to bail or vindicating its denial?
The criminal case before the respondent Judge was the normal venue for invoking
the petitioner's right to have provisional liberty pending trial and judgment. The
original jurisdiction to grant or deny bail rested with said respondent. The correct
course was for petitioner to invoke that jurisdiction by filing a petition to be admitted
to bail, claiming a right to bail per se by reason of the weakness of the evidence
against him. Only after that remedy was denied by the trial court should the review
jurisdiction of this Court have been invoked, and even then, not without first
applying to the Court of Appeals if appropriate relief was also available there.
Even acceptance of petitioner's premise that going by the Hernandez ruling, the
information charges a non-existent crime or, contrarily, theorizing on the same basis
that it charges more than one offense, would not excuse or justify his improper
choice of remedies. Under either hypothesis, the obvious recourse would have been a
motion to quash brought in the criminal action before the respondent Judge. 18
There thus seems to be no question that All the grounds upon which petitioner has
founded the present petition, whether these went into the substance of what is
charged in the information or imputed error or omission on the part of the
prosecuting panel or of the respondent Judge in dealing with the charges against him,
were originally justiciable in the criminal case before said Judge and should have
been brought up there instead of directly to this Court.
There was and is no reason to assume that the resolution of any of these questions
was beyond the ability or competence of the respondent Judge-indeed such an
assumption would be demeaning and less than fair to our trial courts; none whatever
to hold them to be of such complexity or transcendental importance as to disqualify
every court, except this Court, from deciding them; none, in short that would justify
by passing established judicial processes designed to orderly move litigation through
the hierarchy of our courts. Parenthentically, this is the reason behind the vote of four
Members of the Court against the grant of bail to petitioner: the view that the trial
court should not thus be precipitately ousted of its original jurisdiction to grant or
deny bail, and if it erred in that matter, denied an opportunity to correct its error. It
makes no difference that the respondent Judge here issued a warrant of arrest fixing
no bail. Immemorial practice sanctions simply following the prosecutor's
recommendation regarding bail, though it may be perceived as the better course for
the judge motu proprio to set a bail hearing where a capital offense is charged.19 It is,
in any event, incumbent on the accused as to whom no bail has been recommended
or fixed to claim the right to a bail hearing and thereby put to proof the strength or
weakness of the evidence against him.
It is apropos to point out that the present petition has triggered a rush to this Court of
other parties in a similar situation, all apparently taking their cue from it, distrustful
or contemptuous of the efficacy of seeking recourse in the regular manner just
outlined. The proliferation of such pleas has only contributed to the delay that the
petitioner may have hoped to avoid by coming directly to this Court.
Not only because popular interest seems focused on the outcome of the present
petition, but also because to wash the Court's hand off it on jurisdictional grounds
would only compound the delay that it has already gone through, the Court now
decides the same on the merits. But in so doing, the Court cannot express too
strongly the view that said petition interdicted the ordered and orderly progression of
proceedings that should have started with the trial court and reached this Court only
if the relief appealed for was denied by the former and, in a proper case, by the Court
of Appeals on review.
Let it be made very clear that hereafter the Court will no longer countenance, but will
give short shrift to, pleas like the present, that clearly short-circuit the judicial
process and burden it with the resolution of issues properly within the original
competence of the lower courts. What has thus far been stated is equally applicable
to and decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is
virtually Identical to that of petitioner Enrile in factual milieu and is therefore
determinable on the same principles already set forth. Said spouses have
uncontestedly pleaded 20 that warrants of arrest issued against them as co-accused of
petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before
NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into
custody and detained without bail on the strength of said warrants in violation-they
claim-of their constitutional rights.
It may be that in the light of contemporary events, the act of rebellion has lost that
quitessentiany quixotic quality that justifies the relative leniency with which it is
regarded and punished by law, that present-day rebels are less impelled by love of
country than by lust for power and have become no better than mere terrorists to
whom nothing, not even the sanctity of human life, is allowed to stand in the way of
their ambitions. Nothing so underscores this aberration as the rash of seemingly
senseless killings, bombings, kidnappings and assorted mayhem so much in the news
these days, as often perpetrated against innocent civilians as against the military, but
by and large attributable to, or even claimed by so-called rebels to be part of, an
ongoing rebellion.
It is enough to give anyone pause-and the Court is no exception-that not even the
crowded streets of our capital City seem safe from such unsettling violence that is
disruptive of the public peace and stymies every effort at national economic
recovery. There is an apparent need to restructure the law on rebellion, either to raise
the penalty therefor or to clearly define and delimit the other offenses to be
considered as absorbed thereby, so that it cannot be conveniently utilized as the
umbrella for every sort of illegal activity undertaken in its name. The Court has no
power to effect such change, for it can only interpret the law as it stands at any given
time, and what is needed lies beyond interpretation. Hopefully, Congress will
perceive the need for promptly seizing the initiative in this matter, which is properly
within its province.
WHEREFORE, the Court reiterates that based on the doctrine enunciated in People
vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile
and the spouses Rebecco and Erlinda Panlilio must be read as charging simple
rebellion only, hence said petitioners are entitled to bail, before final conviction, as a
matter of right. The Court's earlier grant of bail to petitioners being merely
provisional in character, the proceedings in both cases are ordered REMANDED to
the respondent Judge to fix the amount of bail to be posted by the petitioners. Once
bail is fixed by said respondent for any of the petitioners, the corresponding bail
bond flied with this Court shall become functus oficio. No pronouncement as to
costs.
SO ORDERED.
G.R. No. 109266 December 2, 1993
MIRIAM DEFENSOR SANTIAGO, petitioner,
vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First
Division) and PEOPLE OF THE PHILIPPINES, respondents.
Amado M. Santiago, Jr. for petitioner.
The Solicitor General for the People of the Philippines.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set
aside: (a) the Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice
Francis Garchitorena of the Sandiganbayan, disqualified from acting in said criminal
case; and (b) the Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against
petitioner (Rollo, pp. 2-35 and pp. 36-94).
On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the
Sandiganbayan with violation of Section 3(e) of R.A. No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed
by her favoring "unqualified" aliens with the benefits of the Alien Legalization
Program (Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition,
docketed as G.R. No. 99289-99290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to
enjoin the Sandiganbayan from proceeding with Criminal Case No. 16698 on the
ground that said case was intended solely to harass her as she was then a presidential
candidate. She alleged that this was in violation of Section 10, Article IX-C of the
Constitution which provides that "(b)ona fide candidates for any public office shall
be free from any form of harassment and discrimination." The petition was dismissed
on January 13, 1992.
On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice
Garchitorena, which motion was set for hearing on November 13, 1992 at 8:00 A.M.
(Rollo, pp. 38-41).
On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice
Garchitorena is a member, set the criminal case for arraignment on November 13,
1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the arraignment on the grounds that
there was a pending motion for inhibition, and that petitioner intended to file a
motion for a bill of particulars (Rollo, pp. 43-44).
On November 9, 1992, the Sandiganbayan (First Division) denied the motion to
defer the arraignment (Rollo, p. 45).
On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp.
47-48). The motion stated that while the information alleged that petitioner had
approved the application or legalization of "aliens" and gave them indirect benefits
and advantages it lacked a list of the favored aliens. According to petitioner, unless
she was furnished with the names and identities of the aliens, she could not properly
plead and prepare for trial.
On November 12, 1992 and upon motion of petitioner in G.R.
No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the
Sandiganbayan (First Division) to reset the arraignment to a later date and to dispose
of the two incidents pending before it (Re: disqualification of Presiding Justice
Garchitorena and the motion for the bill of particulars).
At the hearing on November 13, 1992 on the motion for a bill of particulars, the
prosecution stated categorically that they would file only one amended information
against petitioner.
However, on December 8, 1992, the prosecution filed a motion to
admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo,
pp. 61-126).
On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution
dated March 11, 1993, denying the motion for his disqualification (Rollo, pp. 151-
164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution,
admitting the 32 Amended Informations and ordering petitioner to post the
corresponding bail bonds within ten days from notice (Rollo, pp. 165-185).
Petitioner's arraignment on the 32 Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining order, we issued the
Resolution dated March 25, 1993, ordering Presiding Justice Garchitorena "to
CEASE and DESIST from sitting in the case until the question of his disqualification
is finally resolved by this Court and from enforcing the resolution dated March 11,
1993, ordering petitioner to post bail bonds for the 32 Amended Informations and
from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).
Re: Disqualification of the Sandiganbayan Presiding Justice
The petition for disqualification of Presiding Justice Garchitorena is based on the
publication of is letter in the July 29, 1992 issue of the Philippine Star, which to
petitioner "prejudged" the validity of the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected
to change the conclusions he has subconsciously drawn in his public statements . . .
when he sits in judgment on the merits of the case . . ." (Rollo, pp. 16-17).
The letter in question was written in response to an item in Teodoro Benigno's
column in the July 22, 1992 issue of the Philippine Star, criticizing the
Sandiganbayan for issuing on July 11, 1992 a hold-departure order against petitioner.
Benigno wrote that said order reflected a "perverse morality" of the Sandiganbayan
and the lack of "legal morality" of its Presiding Justice, thus:
I cannot, for example accept the legal morality of Sandiganbayan
Justice Francis Garchitorena who would stop Miriam Defensor
 Santiago from going abroad for a Harvard scholarship because of
graft charges against her. Some of the most perfidious Filipinos I
know have come and gone, left and returned to these shores
without Mr. Garchitorena kicking any kind of rumpus. Compared
to the peccadilloes of this country's outstanding felons, what
Miriam is accused of is kindergarten stuff. The Sandiganbayan
Supremo got a lot of headlines for stopping Miriam but I contend
this is the kind of perverse morality we can do without (Rollo, p.
156).
The portion of the letter of Presiding Justice Garchitorena, which petitioner finds
objectionable, reads as follows:
(c) Mrs. Santiago has never informed any court where her cases are
pending of her intention to travel, whether the Regional Trial Court
where she is charged with soliciting donations from people
transacting with her office at Immigration or before the
Sandiganbayan where she is charged with having favored
unqualified aliens with the benefits of the Alien Legalization
Program nor even the Supreme Court where her petition is still
pending (Rollo, p. 158).
In particular, petitioner considered as prejudgment the statement of Presiding Justice
Garchitorena that petitioner had been charged before the Sandiganbayan "with
having favored unqualified aliens with the benefits of the Alien Legalization
Program."
The statement complained of was just a restatement of the Information filed against
petitioner in Criminal Case No. 16698 in connection with which the hold-departure
order was issued. Said Information specified the act constituting the offense charged,
thus:
That on or about October 17, 1988, or for sometime prior or
subsequent thereto, in Manila, Philippines, and within the
jurisdiction of this Honorable Court, accused Miriam Defensor-
Santiago, being then the Commissioner of the Commission on
Immigration and Deportation, with evident bad faith and manifest
partiality, did then and there willfully, unlawfully and criminally
approve the application for legalization of aliens who arrived in the
Philippines after January 1, 1984 in violation of Executive Order
No. 324 dated April 13, 1988 which does not allow the legalization
of the same, thereby causing undue injury to the government and
giving unwarranted benefits and advantages to said aliens in the
discharge of the official and administrative functions of said
accused (Rollo, p. 36).
It appears that petitioner tried to leave the country without first securing the
permission of the Sandiganbayan, prompting it to issue the hold-departure order
which Benigno viewed as uncalled for. The letter of Presiding Justice Garchitorena,
written in defense of the dignity and integrity of the Sandiganbayan, merely stated
that all persons facing criminal charges in court, with no exception, have to secure
permission to leave the country. Nowhere in the letter is the merit of the charge
against petitioner ever touched. Certainly, there would have been no occasion for the
letter had Benigno not written his diatribe, unfair at that, against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be taken into consideration that the
Sandiganbayan sits in three divisions with three justices in each division. Unanimity
among the three members is mandatory for arriving at any decision of a division
(P.D. No. 1606, Sec. 5). The collegiate character of the Sandiganbayan thus renders
baseless petitioner's fear of prejudice and bias on the part of Presiding Justice
Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights to due process were violated
by reason of the delay in the termination of the preliminary investigation. According
to her, while the offense was allegedly committed "on or before October 17, 1988",
the information was filed only on May 9, 1991 and the amended informations on
December 8, 1992 (Rollo, p. 14).
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case.
In Tatad, there indeed was an unexplained inaction on the part of the public
prosecutors inspite of the simplicity of the legal and factual issues involved therein.
In the case at bench, there was a continuum of the investigatory process but it got
snarled because of the complexity of the issues involved. The act complained of in
the original information came to the attention of the Ombudsman only when it was
first reported in the January 10, 1989 issue of the Manila Standard. Immediately
thereafter, the investigatory process was set in motion. The investigation was first
assigned to Special Prosecutor Gualberto dela Llana but on request of petitioner
herself the investigation was first assigned to Special Prosecutor Gualberto dela
Llana but on request of petitioner herself the investigation was re-assigned to the
Office of the Deputy Ombudsman for Luzon. The case was handled by a panel of
four prosecutors, who submitted a draft resolution for the filing of the charges on
March 29, 1990. The draft resolution had to undergo the hierarchy of review, normal
for a draft resolution with a dissenting vote, until it reached the Ombudsman in
March 1991.
We note that petitioner had previously filed two petitions before us involving
Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in
the preliminary investigation and the filing of the information against her in those
petitions. a piece-meal presentation of issues, like the splitting of causes of action, is
self-defeating.
Petitioner next claims that the Amended Informations did not charge any offense
punishable under Section 3 (e) of R.A. No. 3019 because the official acts complained
of therein were authorized under Executive Order No. 324 and that the Board of
Commissioners of the Bureau of Investigation adopted the policy of approving
applications for legalization of spouses and unmarried, minor children of "qualified
aliens" even though they had arrived in the Philippines after December 31, 1983. she
concludes that the Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the allegations of fact in the
information (People v. Supnad, 7 SCRA 603 [1963] ). Therefore, petitioner admitted
hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for legalization of the stay of
aliens, who arrived in the Philippines after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in "evident bad faith and manifest partiality in the
execution of her official functions."
The foregoing allegations of fact constitute the elements of the offense defined in
Section 3 (e) of R.A. No. 3019.
The claims that the acts complained of were indeed authorized under Executive
Order No. 324, that petitioner merely followed in good faith the policy adopted by
the Board of Commissioners and that the aliens were spouses or unmarried minor
children of persons qualified for legalization of stay, are matters of defense which
she can establish at the trial.
Anent petitioner's claim that the Amended Informations did not allege that she had
caused "undue injury to any party, including the Government," there are two ways of
violating Section 3 (e) of R.A. No. 3019. These are: (a) by causing undue injury to
any party, including the Government; and (b) by giving any private party any
unwarranted benefit, advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:
The use of the distinctive term "or" connotes that either act
qualifies as a violation of Section 3 (a). In other words the act of
giving any private party any unwarranted benefit, advantage or
preference is not an indispensable element of the offense of
"causing any undue injury to any party" as claimed by petitioners
although there may be instances where both elements concur.
Re: Delito continuado
Be that as it may, our attention was attracted by the allegation in the petition that the
public prosecutors filed 32 Amended Informations against petitioner, after
manifesting to the Sandiganbayan that they would only file one amended information
(Rollo, pp. 6-61). We also noted that petitioner questioned in her opposition to the
motion to admit the 32 Amended Informations, the splitting of the original
information (Rollo, pp. 127-129). In the furtherance of justice, we therefore proceed
to inquire deeper into the validity of said plant, which petitioner failed to pursue with
vigor in her petition.
We find that, technically, there was only one crime that was committed in petitioner's
case, and hence, there should only be one information to be file against her.
The 32 Amended Informations charge what is known as delito continuado or
"continued crime" and sometimes referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne
in mind that the concept of delito continuado has been a vexing problem in Criminal
Law — difficult as it is to define and more difficult to apply.
According to Cuello Calon, for delito continuado to exist there should be a plurality
of acts performed during a period of time; unity of penal provision violated; and
unity of criminal intent or purpose, which means that two or more violations of the
same penal provisions are united in one and same instant or resolution leading to the
perpetration of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito continuado consists of several crimes
but in reality there is only one crime in the mind of the perpetrator (Commentaries on
the Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippine Criminal
Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one criminal
intent or resolution (Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting only one
offense the following cases:
(1) The theft of 13 cows belonging to two different owners
committed by the accused at the same time and at the same period
of time (People v. Tumlos, 67 Phil. 320 [1939] ).
(2) The theft of six roosters belonging to two different owners from
the same coop and at the same period of time (People v. Jaranillo,
55 SCRA 563 [1974] ).
(3) The theft of two roosters in the same place and on the same
occasion (People v. De Leon, 49 Phil. 437 [1926] ).
(4) The illegal charging of fees for services rendered by a lawyer
every time he collects veteran's benefits on behalf of a client, who
agreed that the attorney's fees shall be paid out of said benefits
(People v. Sabbun, 10 SCRA 156 [1964] ). The collection of the
legal fees were impelled by the same motive, that of collecting fees
for services rendered, and all acts of collection were made under
the same criminal impulse (People v. Lawas, 97 Phil. 975 [1955] ).
On the other hand, we declined to apply the concept to the following cases:
(1) Two estafa cases, one of which was committed during the
period from January 19 to December 1955 and the other from
January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306
[1961] ). The said acts were committed on two different occasions.
(2) Several malversations committed in May, June and July, 1936,
and falsifications to conceal said offenses committed in August and
October 1936. The malversations and falsifications "were not the
result of only one purpose or of only one resolution to embezzle
and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).
(3) Two estafa cases, one committed in December 1963 involving
the failure of the collector to turn over the installments for a radio
and the other in June 1964 involving the pocketing of the
installments for a sewing machine (People v. Ledesma, 73 SCRA
77 [1976] ).
(4) 75 estafa cases committed by the conversion by the agent of
collections from customers of the employer made on different
dates (Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcry of the Spanish Penal Code, has
been applied to crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered
following up claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156
[1964] ).
Under Article 10 of the Revised Penal Code, the Code shall be supplementary to
special laws, unless the latter provide the contrary. Hence, legal principles developed
from the Penal Code may be applied in a supplementary capacity to crimes punished
under special laws.
The question of whether a series of criminal acts over a period of time creates a
single offense or separate offenses has troubled also American Criminal Law and
perplexed American courts as shown by the several theories that have evolved in
theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine, that is,
the taking of several things, whether belonging to the same or different owners, at the
same time and place constitutes but one larceny. Many courts have abandoned the
"separate larceny doctrine," under which there is a distinct larceny as to the property
of each victim. Also abandoned was the doctrine that the government has the
discretion to prosecute the accused or one offense or for as many distinct offenses as
there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule, look at the commission of
the different criminal acts as but one continuous act involving the same "transaction"
or as done on the same "occasion" (State v. Sampson, 157 Iowa 257, 138 NW 473;
People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52
NW 539).
An American court held that a contrary rule would violate the constitutional
guarantee against putting a man in jeopardy twice for the same offense (Annotation,
28 ALR 2d 1179). Another court observed that the doctrine is a humane rule, since if
a separate charge could be filed for each act, the accused may be sentenced to the
penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).
In the case at bench, the original information charged petitioner with performing a
single criminal act — that of her approving the application for legalization of aliens
not qualified under the law to enjoy such privilege.
The original information also averred that the criminal act : (i) committed by
petitioner was in violation of a law — Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government,
and (iii) was done on a single day, i.e., on or about October 17, 1988.
The 32 Amended Informations reproduced verbatim the allegation of the original
information, except that instead of the word "aliens" in the original information each
amended information states the name of the individual whose stay was legalized.
At the hearing of the motion for a bill of particulars, the public prosecutors
manifested that they would file only one amended information embodying the
legalization of stay of the 32 aliens. As stated in the Order dated November 12, 1992
of the Sandiganbayan (First Division):
On the matter of the Bill of Particulars, the prosecution has
conceded categorically that the accusation against Miriam
Defensor Santiago consists of one violation of the law represented
by the approval of the applications of 32 foreign nationals for
availment (sic) of the Alien Legalization Program. In this respect,
and responding directly to the concerns of the accused through
counsel, the prosecution is categorical that there will not be 32
accusations but only one . . . (Rollo, p. 59).
The 32 Amended Informations aver that the offenses were committed on the same
period of time, i.e., on or about October 17, 1988. The strong probability even exists
that the approval of the application or the legalization of the stay of the 32 aliens was
done by a single stroke of the pen, as when the approval was embodied in the same
document.
Likewise, the public prosecutors manifested at the hearing the motion for a bill of
particulars that the Government suffered a single harm or injury. The Sandiganbayan
in its Order dated November 13, 1992 stated as follows:
. . . Equally, the prosecution has stated that insofar as the damage
and prejudice to the government is concerned, the same is
represented not only by the very fact of the violation of the law
itself but because of the adverse effect on the stability and security
of the country in granting citizenship to those not qualified (Rollo,
p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of
the Sandiganbayan (First Division) is AFFIRMED and its Resolution dated March
11, 1993 in Criminal Case No. 16698 is MODIFIED in the sense that the Office of
the Special Prosecutor of the Office of the Ombudsman is directed to consolidate the
32 Amended Informations (Criminal Cases Nos. 18371 to 18402) into one
information charging only one offense under the original case number, i.e., No.
16698. The temporary restraining order issued by this Court on March 25, 1993 is
LIFTED insofar as to the disqualification of Presiding Justice Francis Garchitorena is
concerned.
SO ORDERED.
INDETERMINATE SENTENCE LAW
G.R. No. 200087, October 12, 2016
YOLANDA LUY Y GANUELAS, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This case involves the criminal attempt by the petitioner to smuggle dangerous
drugs (shabu) inside a detention facility to her detained husband by submerging the
packets of shabu inside a plastic jar filled with strawberry juice and cracked ice. The
attempt failed because of the alacrity of the lady guard manning the entrance of the
jail compound.chanroblesvirtuallawlibrary
The Case
Under appeal is the decision promulgated on August 31, 2011,1 whereby the Court of
Appeals (CA) affirmed in CA-G.R. CR No. 33057 the judgment rendered on
September 18, 2009 by the Regional Trial Court (RTC), Branch 74, in Olongapo
City finding the petitioner guilty beyond reasonable doubt of illegal possession of six
heat-sealed transparent plastic sachets containing methamphetamine
hydrochloride (shabu) with a total net weight of approximately 2.60 grams. 2
Antecedents
The Office of the City Prosecutor in Olongapo City initiated the prosecution through
the information filed in the RTC charging the petitioner with violation of Section 11,
Article II, Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of
2002), alleging:chanRoblesvirtualLawlibrary
That on or about the twenty-fifth (25th) day of October 2004, in the City of
Olongapo, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and knowingly have in her
effective possession and control six (6) heat-sealed transparent plastic sachets
containing Methamphetamine Hydrochloride otherwise known as 'Shabu' with an
approximate total weight of Two Gram (sic) and Six Tenth (2.6) of a gram which is a
dangerous drugs (sic), said accused not having the corresponding license or
prescription to possess said dangerous drugs, (sic)
CONTRARY TO LAW.3
chanrobleslaw
The CA narrated the factual and procedural antecedents, viz.:
During the trial, the prosecution presented the lone testimony of Jail Officer 3
Myrose Joaquin, while the accused-appellant testified for the defense.
As part of her testimony, JO3 Joaquin claimed that on 25 October 2004, she was
doing her usual duty as female guard at the gate of the Bureau of Jail Management
Bureau Olongapo City. When she searched the effects of accused-appellant for
possible contrabands, her attention was called on the strawberry juice placed in a
white container full of cracked ice inside. When she was asked what was unusual
about the juice, JO3 Joaquin answered that accused-appellant can make the juice
inside if she wanted to. To quell her suspicion, JO3 Joaquin asked accused-appellant
if she could transfer it in another container but accused-appellant refused. JO3
Joaquin insisted, nevertheless. They then went to the guardhouse and transferred the
juice into a bowl. As the ice inside scattered, the illegal drugs were revealed.
Accused-appellant allegedly pleaded for her not to report the matter to the jail
warden, but JO3 Joaquin ignored her plea. After bringing accused-appellant to the
jail warden, they brought the confiscated items to the laboratory for examination.
The examination revealed that the confiscated items were positive for
methamphetamine hydrochloride.
JO3 Joaquin also identified the accused-appellant in court and the confiscated items
and claimed that they can identify them to be the same items seized from accused-
appellant because of the markings she placed thereon.
On cross-examination, JO3 Joaquin explained that the heat-sealed plastic sachets
were wrapped with a plastic and two (2)-peso coin. She also admitted that she placed
accused-appellant on a close watch because even prior to the incident, accused-
appellant would bring with her ready-made juice, making her think that accused-
appellant was peddling illegal drugs inside the prison. Finally, she claimed that she
never had a misunderstanding with accused-appellant prior to the date of the
incident.
Accused-appellant, on the other hand, claimed that on 25 October 2004, she was at
the BJMP to visit her husband, Nestor, a prisoner therein. As she was about to go
inside the compound, a certain Melda called her and requested that she give the juice
to her husband, a certain Bong, who was also a prisoner at the BJMP. Accused-
appellant initially declined and advised Melda to go personally so she could talk to
her husband. Melda, however, was supposedly in a hurry as she still had to fetch her
child. Melda allegedly also had no identification at that time. Because of Melda's
insistence, accused-appellant acceded to her request and got Melda's plastic box
containing a Tupperware and a juice container. When she was asked who could
corroborate this story, accused-appellant claimed that nobody saw Melda handed
(sic) to her the juice container as she had no companion at that time.
Accused-appellant further stated that after receiving Melda's items, she already went
inside the compound and went passed (sic) through the routine security inspection.
When JO3 Joaquin transferred the juice into a bowl, she saw a plastic that contained
two (2) coins. Thereafter, JO3 Joaquin brought her to the office of the BJMP. After a
while, she was detained.
On cross-examination, accused-appellant admitted that her husband was convicted of
a drug-related case and that she, herself, was once detained before. She did not know
the full name of Melda or her husband but she had seen them in the past inside the
jail. She also admitted that there can be no dispute that the drugs were found in her
possession but maintained that the same came from Melda.4
chanrobleslaw
Judgment of the RTC
After the trial, the RTC rendered judgment on September 18, 2009 convicting the
petitioner as charged,5 disposing thusly:chanRoblesvirtualLawlibrary
WHEREFORE, this Court finds accused Yolanda Luy y Ganuelas guilty beyond
reasonable doubt of violation of Section 11, Article II, R. A. 9165 and is hereby
sentenced to suffer the penalty of imprisonment of twelve (12) years and one (1) day
and to pay a fine of P300,000.00 with subsidiary imprisonment in case of inability to
pay the fine. The illegal drug confiscated from the accused is hereby ordered to be
turned over to the Philippine Drug and (sic) Enforcement Agency (PDEA) for
disposition in accordance with law.
SO ORDERED.6
chanrobleslaw
Decision of the CA
The petitioner appealed, but the CA affirmed the conviction through the now assailed
decision, holding:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant Appeal is DENIED. The assailed
Decision of the court a quo is AFFIRMED IN TOTO.
SO ORDERED.7
chanrobleslaw
Issue
In this appeal, the petitioner insists that the CA erred in affirming her conviction
despite the failure of the Prosecution to show that arresting officer JOS Myrose
Joaquin had faithfully complied with the requirement on the chain of custody under
Section 21 of R.A. No. 9165; that, accordingly, the packets of shabu presented in
court as evidence were not shown to be the same substances recovered from her;
that, moreover, JO3 Joaquin claimed to have brought the substances herself to the
crime laboratory for chemical examination, but did not mention the person who had
received the same from her at the laboratory; and that no inventory of the seized
substances was made and no any pictures of them were taken at the point of arrest.
Ruling of the Court
The appeal lacks merit.
First of all, the factual findings 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 on the credibility of the witnesses on which said findings were anchored
are accorded great respect. This great respect rests in the trial court's first-hand
access to the evidence presented during the trial, and in its direct observation of the
witnesses and their demeanor while they testify on the occurrences and events
attested to.8 Absent any showing of a fact or circumstance of weight and influence
that would appear to have been overlooked and, if considered, could affect the
outcome of the case, the factual findings on and assessment of the credibility of
witnesses made by the trial court are binding on the appellate tribunal. 9 Unlike the
appellate court, the trial court has the unique opportunity of such personal
observation. The respect for the latter court's factual findings particularly deepens
once the appellate court has affirmed such factual findings, for the latter, performing
its sworn duty to re-examine the trial records as thoroughly as it could in order to
uncover any fact or circumstances that could impact the verdict in favor of the
appellant, is then presumed to have uncovered none sufficient to undo or reverse the
conviction. As such, the lower courts' unanimous factual findings are generally
binding upon the Court which is not a trier of facts. 10
Upon review, the Court has not found any valid reason to disturb the factual findings
of the RTC and the CA.
Secondly, a successful prosecution for the illegal possession of dangerous drugs in
violation of Section 11 of R. A. No. 9165 requires that the following essential
elements of the offense be established, namely: (1) the accused is in possession of an
item or object identified as a prohibited drug; (2) her possession is not authorized by
law; and (3) she freely and consciously possessed the drug. 11
The petitioner, whose husband, Nestor, was a detainee in the Olongapo City jail, was
caught in the actual illegal possession of the shabu involved herein as she was
entering the gate of the jail compound by JO3 Joaquin, the female guard, during the
latter's routine inspection of her person and personal belongings on October 25,
2004. JO3 Joaquin, as the designated searcher of female visitors, conducted the
search in the presence of other jail guards. Noticing the round white-colored plastic
jar labeled Tang Orange filled with cracked ice and strawberry juice, she insisted
that the petitioner transfer the strawberry juice into another container, but the latter
resisted. JO3 Joaquin and a fellow jail guard then brought the jar inside the
guardhouse with the petitioner in tow, and there emptied its contents into a bowl.
Upon removing the cracked ice, the jail guards discovered the plastic material
containing two P1 coins inside the jar. At that point, the petitioner pleaded with them
not to report their discovery to the jail warden, but JOS Joaquin ignored her. The
guards immediately haled her before the warden along with the plastic material and
its contents. Opening the plastic material in the presence of the petitioner, they found
the six heat-sealed transparent plastic sachets with suspected shabu inside. Under the
circumstances, the petitioner was arrested in flagrante delicto.
At the time of confiscation on October 25, 2004, JO3 Joaquin marked the heat-sealed
plastic sachets of shabu with her initials "MCJ/AO".12 Thereafter, the request for
laboratory examination was prepared by P./Chief Insp. Miguel Gallardo
Corpus.13 The request and the substances were delivered to the laboratory by PO1
CM. Ballon. Later on, the PNP Crime Laboratory Service issued Chemistry Report
No. D-0181-2004 (Exhibit C) through P./Sr. Insp. Arlyn M. Dascie, Forensic
Chemist, attesting to the findings on the substances indicating the presence of
methylamphetamine hydrochloride, or shabu.14
The petitioner expectedly denied that the shabu belonged to her. Her sole
explanation for why she had the shabu at the time was that a certain Melda had
requested her to bring the jar of strawberry juice inside the jail compound for her
husband, Bong, also a detainee, because Melda had supposedly forgotten to bring her
identification card that day, and because she was then in a hurry to fetch her child.
The RTC after the trial and the CA on appeal rejected the petitioner's denial and
explanation. We also reject them now. Denial, aside from being easily fabricated, has
been the common excuse tendered by those arrested and prosecuted for the illegal
possession of dangerous drugs. Under Section 11 15 of R.A. Act No. 9165, however,
the mere possession of the dangerous drugs was enough to render the possessor
guilty of the offense. Moreover, the denial by the petitioner, being self-serving and
negative, did not prevail over the positive declarations of JO3 Joaquin. In order for
the denial to be accorded credence, it must be substantiated by strong and convincing
evidence.16 Alas, the petitioner did not present such evidence here. As to her
explanation, she could have presented Melda herself to corroborate her story. Her
word alone not enough because she had been caught in the actual possession of
the shabu during the routinary search at the gate of the jail compound. As such, we
cannot allow her denial to gain traction at all.17
In fine, all the essential elements of illegal possession of dangerous drugs were
established. To start with, she was caught in the voluntary possession of
the shabu. And, secondly, she presented no evidence about her being authorized to
possess the shabu. Worthy to reiterate is that her mere possession of
the shabu constituted the crime itself. Her animus possidendi — the intent to possess
essential in crimes of mere possession like this - was established beyond reasonable
doubt in view of the absence of a credible explanation for the possession. 18
Thirdly, the petitioner insists that the State did not prove the chain of custody of
the shabu. In our view, however, her immediate admission of the possession of
the shabu following her arrest in flagranti delicto bound her for, under the rules on
evidence, the act, declaration or omission of a party as to a relevant fact was
admissible against her.19 Her admission renders her insistence irrelevant and
inconsequential.
Finally, the CA affirmed the penalty fixed by the RTC of 12 years and one day of
imprisonment and fine of P300,000.00 with subsidiary imprisonment in case of
inability to pay the fine. The affirmance was erroneous for two reasons,
namely: one, the penalty of imprisonment thus imposed was a straight penalty, which
was contrary to Section 1 of the Indeterminate Sentence Law; and, two, mandating
the subsidiary imprisonment was legally invalid and unenforceable.
The penalty for the crime committed by the petitioner is provided for in Section
11(3) of R.A. No. 9165, as follows:chanRoblesvirtualLawlibrary
Section 11. Possession of Dangerous Drugs. — The 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 possess any dangerous drug In the following quantities,
regardless of the degree of purity thereof:cralawlawlibrary
xxxx
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000.00) to four hundred
thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five
(5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana
resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or
other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA,
LSD, GHB, and those similarly designed or newly introduced drugs and their
derivatives, without having any therapeutic value or if the quantity possessed is far
beyond therapeutic requirements; or less than three hundred (300) grams of
marijuana.
chanrobleslaw
Based on the provision, the correct penalty was an indeterminate sentence whose
minimum should not be less than the minimum of 12 years and one day prescribed
by Section 11(3), R.A. No. 9165, supra, and whose maximum should not exceed the
maximum of 20 years as also prescribed by Section 11(3), R.A. No. 9165, supra. The
imposition of the indeterminate sentence was required by Section 1 of
the Indeterminate Sentence Law, viz.:
Section 1. Hereafter, in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term prescribed by the
same. (As amended by Act No. 4225)
chanrobleslaw
Considering that neither the offense committed nor the imposable penalty was
expressly exempt from the coverage of the Indeterminate Sentence Law pursuant to
Section 220 thereof, the imposition of the indeterminate sentence was
mandatory.21 The minimum and the maximum periods had a worthy objective, for, as
the Court expounded in Bacar v. Judge de Guzman, Jr.:22chanroblesvirtuallawlibrary
The need for specifying the minimum and maximum periods of the indeterminate
sentence is to prevent the unnecessary and excessive deprivation of liberty and to
enhance the economic usefulness of the accused, since he may be exempted from
serving the entire sentence, depending upon his behavior and his physical, mental,
and moral record.
The requirement of imposing an indeterminate sentence in all criminal offenses
whether punishable by the RPC or by special laws, with definite minimum and
maximum terms, as the Court deems proper within the legal range of the penalty
specified by the law must, therefore, be deemed mandatory.
chanrobleslaw
To conform with the Indeterminate Sentence Law, therefore, the indeterminate
sentence should be 12 years and one day, as minimum, to 14 years, as maximum.
The other error of the lower courts was in imposing subsidiary imprisonment should
the petitioner be unable to pay the fine. The imposition of subsidiary imprisonment,
which is a subsidiary personal liability of a person found guilty by final judgment
who has no property with which to meet the fine, is based on and in accord with
Article 39 of the Revised Penal Code, a provision that is supplementary to special
laws (like R.A. No. 9165) unless the latter should specially provide the
contrary.23 But subsidiary imprisonment cannot be imposed on the petitioner because
her principal penalty, supra, was higher then prision correccional or imprisonment
for six years. In this regard, Article 39 of the Revised Penal Code relevantly
states:chanRoblesvirtualLawlibrary
Article 39. Subsidiary penalty. — If the convict has no property with which to meet
the fine mentioned in the paragraph 3 of the next preceding article, he shall be
subject to a subsidiary personal liability at the rate of one day for each eight pesos,
subject to the following rules:cralawlawlibrary
xxxx
3. When the principal imposed is higher than prision correctional, no subsidiary
imprisonment shall be imposed upon the culprit.

xxxx
chanrobleslaw
To repeat, the RTC's imposition of subsidiary imprisonment "in case of inability to
pay the fine" of P300,000.00 was invalid and legally unenforceable.
In view of the foregoing, the petitioner is ordered to suffer the modified penalty of an
indeterminate sentence of 12 years and one day, as minimum, to 14 years, as
maximum, and to pay a fine of P300,000.00, without subsidiary imprisonment in
case of her insolvency.
WHEREFORE, the Court AFFIRMS the decision promulgated on August 31, 2011
in CA-G.R. CR No. 33057 subject to the MODIFICATION that the penalty of the
petitioner is the indeterminate sentence of 12 years and one day, as minimum, to 14
years, as maximum, and to pay a fine of P300,000.00 without subsidiary
imprisonment in case of her insolvency; and ORDERS the petitioner to pay the costs
of suit.
SO ORDERED.ChanRoblesVirtualawlibrary
G.R. No. 189343 July 10, 2013
BENILDA N. BACASMAS, Petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.
x-----------------------x
SERENO, CJ.:
Before us are three consolidated cases: (1) Petition for Review on Certiorari 1 dated
16 September 2009 (G.R. No. 189343), (2) Petition for Review on Certiorari 2 dated
15 September 2009 (G.R. No. 189369), and (3) Petition for Review on
Certiorari3 dated 12 October 2009 (G.R. No. 189553). All assail the Decision 4 in
Crim. Case No. 26914 dated 7 May 2009 of the Sandiganbayan, the dispositive
portion of which reads:
ACCORDINGLY, accused Alan C. Gaviola ("Gaviola"), Eustaquio B. Cesa
("Cesa"), Benilda N. Bacasmas ("Bacasmas") and Edna J. Jaca ("Jaca") are found
guilty beyond reasonable doubt for violation of Section 3 (e) of Republic Act No.
3019 and are sentenced to suffer in prison the penalty of 12 years and 1 month to 15
years. They also have to suffer perpetual disqualification from holding any public
office and to indemnify jointly and severally the City Government of Cebu the
amount of Nine Million Eight Hundred Ten Thousand, Seven Hundred Fifty-two and
60/100 Pesos (Php 9,810,752.60).5 (Emphasis in the original)
The Petitions also question the Resolution6 dated 27 August 2009 denying the
Motions for Reconsideration7 of the Decision dated 7 May 2009.
ANTECEDENT FACTS
All the petitioners work for the City Government of Cebu. 8 Benilda B. Bacasmas
(Bacasmas), the Cash Division Chief, is the petitioner in G.R. No. 189343. 9 Alan C.
Gaviola (Gaviola), the City Administrator, is the petitioner in G.R. No.
189369.10 Eustaquio B. Cesa (Cesa), the City Treasurer, is the petitioner in G.R. No.
189553.11

G.R. No. 189369 By virtue of their positions, they are involved in the process of approving and
releasing cash advances for the City. The procedure is as follows:
ALAN C. GAVIOLA, Petitioner,
vs. A written request for a cash advance is made by paymaster Luz Gonzales (Gonzales),
PEOPLE OF THE PHILIPPINES, Respondents. who then submits it to Cash Division Chief Bacasmas for approval. Once the latter
approves the request, she affixes her initials to the voucher, which she forwards to
x-----------------------x City Treasurer Cesa for his signature in the same box. By signing, Bacasmas and
Cesa certify that the expense or cash advance is necessary, lawful, and incurred
G.R. No. 189553 under their direct supervision.12

EUSTAQUIO B. CESA, Petitioner, Thereafter, the voucher is forwarded to City Accountant Edna C. Jaca (Jaca) for
vs. processing and pre-audit. She also signs the voucher to certify that there is adequate
PEOPLE OF THE PHILIPPINES, Respondents. available funding/budgetary allotment; that the expenditures are properly certified
and supported by documents; and that previous cash advances have been liquidated
DECISION and accounted for. She then prepares an Accountant’s Advice (Advice). 13
This Advice is returned with the voucher to the Chief Cashier for the preparation of
the check. After it has been prepared, she affixes her initials to the check, which Cesa
then signs. Afterwards, City Administrator Gaviola approves the voucher and
countersigns the check.14
The voucher, the Advice, and the check are then returned to the Cash Division,
where Gonzales signs the receipt portion of the voucher, as well as the Check
Register to acknowledge receipt of the check for encashment.15
Upon receipt of the check, Gonzales encashes it at the bank, signs the voucher, and
records the cash advance in her Individual Paymaster Cashbook. She then liquidates
it within five days after payment.16
A report of those cash advances liquidated by Gonzales is called a Report of
Disbursement (RD). An RD must contain the audit voucher number, the names of the
local government employees who were paid using the money from the cash advance,
the amount for each employee, as well as the receipts. The RDs are examined and
verified by the City Auditor and are thereafter submitted to the Cash Division for
recording in the official cash book.17
On 4 March 1998, COA issued Office Order No. 98-001 creating a team to conduct
an examination of the cash and accounts of the accountable officers of the Cash
Division, City Treasurer’s Office of Cebu City.18
This team conducted a surprise cash count on 5 March 1998. 19 The examination
revealed an accumulated shortage of ₱9,810,752.60 from 20 September 1995 to 5
March 1998 from the cash and accounts of Gonzales.20 The team found that
Bacasmas, Gaviola, Cesa, and Jaca failed to follow the above-mentioned procedure,
thus facilitating the loss of more than nine million pesos on the part of the city
government. Specifically, the team said in its report that there were irregularities in
the grant, utilization, and liquidation of cash advances; shortages were concealed;
and inaccurate and misleading pieces of information were included in the financial
statements.21 These irregularities were manifested in the following: additional cash
advances were granted even if previous cash advances had not yet been liquidated,
cash advance vouchers for salaries were not supported by payrolls or lists of payees,
and cash advances for salaries and wages were not liquidated within five days after
each 15th day or end-of-the-month pay period.22
The report stated that Bacasmas, Gaviola, Cesa, and Jaca not only signed, certified,
and approved the cash advance vouchers, but also signed and countersigned the
checks despite the deficiencies, which amounted to a violation of Republic Act No.
(R.A.) 7160; Presidential Decree No. (P.D.) 1445; and the circulars issued by the
Commission on Audit (COA), specifically COA Circular Nos. 90-331, 92-382 and
97-002.23 According to the COA, the violation of the foregoing laws, rules, and
regulations facilitated the loss of a huge amount of public funds at the hands of
Gonzales.24
Hence, an Information25 was filed with the Sandiganbayan on 30 July 2001 against
Bacasmas, Gaviola, Cesa, and Jaca, to wit:
That on or about the 5th and subsequent thereto, at Cebu City, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, above-named
accused, ALAN C. GAVIOLA, EUSTAQUIO B. CESA, BENILDA N.
BACASMAS and EDNA J. JACA, public officers, being then the City
Administrator, City Treasurer, Cash Division Chief and City Accountant,
respectively, of the Cebu City Government, in such capacity and committing the
offense in relation to Office, conniving and confederating together and mutually
helping with each other [sic], with deliberate intent, with manifest partiality, evident
bad faith and with gross inexcusable negligence, did then and there allow LUZ M.
GONZALES, Accountant I, Disbursing Officer-Designate of the Cebu City
Government, to obtain cash advances despite the fact that she has previous
unliquidated cash advances, thus allowing LUZ M. GONZALES to accumulate Cash
Advances amounting to NINE MILLION EIGHT HUNDRED TEN day of March
1998, and for sometime prior THOUSAND SEVEN HUNDRED FIFTY-TWO
PESOS AND 60/100 (₱9,810,752.60), PHILIPPINE CURRENCY, which remains
unliquidated, thus accused in the performance of their official functions, had given
unwarranted benefits to LUZ M. GONZALES and themselves, to the damage and
prejudice of the government, particularly the Cebu City Government. 26
The prosecution presented the testimonies of the COA Auditors who had conducted
the examination on the cash and accounts of Gonzales: Cecilia Chan, Jovita Gabison,
Sulpicio Quijada, Jr., Villanilo Ando, Jr., and Rosemarie Picson. 27 The COA
Narrative Report28 on the results of the examination of the cash and accounts of
Gonzales covering the period 20 September 1995 to 05 March 1998 was also
introduced as evidence.29
Bacasmas testified in her own defense. She said that she could not be held liable,
because it was not her responsibility to examine the cash book. She pointed to Jaca
and the City Auditor as the ones responsible for determining whether the paymaster
had existing unliquidated cash advances. Bacasmas further testified that she allowed
the figures to be rounded off to the nearest million without totalling the net payroll,
because it was customary to round off the cash advance to the nearest amount. 30
Cesa averred that Jaca was the approving authority in granting cash advances. Hence,
when he signed the vouchers, he merely relied on Jaca’s certification that Gonzales
had already liquidated her cash advances. Besides, he said, he had already delegated
the function of determining whether the amount stated in the disbursement voucher
was equal to the net pay, because it was humanly impossible for him to supervise all
the personnel of his department.31
Jaca admitted that cash advances were granted even if there were no liquidations, so
that salaries could be paid on time, because cash advances usually overlapped with
the previous one. Additionally, she acknowledged that when she affixed her
signatures to the vouchers despite the non-attachment of the payrolls, she was aware
that Gonzales still had unliquidated cash advances.32
Lastly, Gaviola claimed that when he affixed his signatures, he was not aware of any
anomaly. Allegedly, he only signed on the basis of the signatures of Cesa and Jaca. 33
The Sandiganbayan, in its Decision dated 7 May 2009, did not give credence to the
defense of the accused, but instead afforded significant weight to the COA Narrative
Report submitted in evidence. It found that the accused, as public officers, had acted
with gross inexcusable negligence by religiously disregarding the instructions for
preparing a disbursement voucher and by being totally remiss in their respective
duties and functions under the Local Government Code of 1991. 34 Their gross
inexcusable negligence amounted to bad faith, because they still continued with the
illegal practice even if they admittedly had knowledge of the relevant law and COA
rules and regulations.35 The Sandiganbayan held that the acts of the accused had
caused not only undue injury to the government because of the ₱9,810,752.60
shortage, but also gave unwarranted benefit to Gonzales by allowing her to obtain
cash advances to which she was not entitled.36 Lastly, it found conspiracy to be
present in the acts and omissions of the accused showing that they had confederated,
connived with, and mutually helped one another in causing undue injury to the
government through the loss of public money.37
Gaviola, Cesa, Bacasmas, and Jaca individually filed their Motions for
Reconsideration of the 7 May 2009 Decision.38 Their motions impugned the
sufficiency of the Information and the finding of gross inexcusable negligence,
undue injury, and unwarranted benefit.39 To support their innocence, they invoked
the cases of Arias v. Sandiganbayan,40 Magsuci v. Sandiganbayan,41 Sistoza v.
Desierto,42 Alejandro v. People,43 and Albert v. Gangan,44 in which we held that the
heads of office may rely to a reasonable extent on their subordinates. 45 The Motion
for Reconsideration of Jaca also averred that her criminal and civil liabilities had
been extinguished by her death on 24 May 2009. 46
The Sandiganbayan, in a Resolution47 promulgated 27 August 2009 denied the
Motions for Reconsideration of the accused. It ruled that the Information was
sufficient, because the three modes of violating Section 3(e) of R.A. 3019 commonly
involved willful, intentional, and conscious acts or omissions when there is a duty to
act on the part of the public official or employee.48 Furthermore, the three modes
may all be alleged in one Information.49 The Sandiganbayan held that the accused
were all guilty of gross inexcusable negligence. Claiming that it was the practice in
their office, they admittedly disregarded the observance of the law and COA rules
and regulations on the approval and grant of cash advances. 50 The anti-graft court
also stated that the undue injury to the government was unquestionable because of
the shortage amounting to ₱9,810,752.60.51 It further declared that the
aforementioned cases cited by the accused were inapplicable, because there was
paucity of evidence of conspiracy in these cases.52 indicate, if taken collectively, that
they are vital pieces of a common design.- albeit ostensibly separate and distinct
Here, conspiracy was duly proven in that the silence and inaction of the accused
53
Finally, the Sandiganbayan decided that although the criminal liability of Jaca was
extinguished upon her death, her civil liability remained. 54 Hence, the Motions for
Reconsideration were denied.55
Thus, Bacasmas, Gaviola, and Cesa filed their respective Petitions for Review on
Certiorari, in which they rehashed the arguments they had put forward in their
Motions for Reconsideration previously filed with the Sandiganbayan.
We resolved to consolidate the three Petitions on 23 November 2009. 56 The Office of
the Special Prosecutor was required to comment on the three Petitions,57 after which
petitioners were instructed to file a Reply,58 which they did.59
Petitioners, through their respective Petitions for Review on Certiorari and
Comments, bring these two main issues before us:
I. Whether the Information was sufficient; and
II. Whether petitioners are guilty beyond reasonable doubt of violating
Section 3(e) of Republic Act No. 3019
We deny the Petitions.
I.
The Information specified when the crime was committed, and it named all of
the accused and their alleged acts or omissions constituting the offense charged.
An information is deemed sufficient if it contains the following: (a) the name of all
the accused; (b) the designation of the offense as given in the statute; (c) the acts or
omissions complained of as constituting the offense; (d) the name of the offended
party; (e) the approximate date of the commission of the offense; and (f) the place
where the offense was committed.
Cesa and Gaviola question the sufficiency of the Information on three grounds: first,
it did not specify a reasonable time frame within which the offense was committed,
in violation of their right to be informed of the charge against them; second, not all
of the accused were named, as Gonzales was not charged in the Information; and
third, the Information did not specify an offense, because negligence and conspiracy
cannot co-exist in a crime.
The Sandiganbayan earlier held that the Information was sufficient in that it
contained no inherent contradiction and properly charged an offense. We uphold its
ruling for the following reasons:
First, it is not necessary to state the precise date when the offense was committed,
except when it is a material ingredient thereof.60 The offense may be alleged to have
been committed on a date as near as possible to the actual date of its
commission.61 Here, the date is not a material ingredient of the crime, not having
been committed on one day alone, but rather within a period of time ranging from 20
September 1995 to 5 March 1998. Hence, stating the exact dates of the commission
of the crime is not only unnecessary, but impossible as well. That the Information
alleged a date and a period during which the crime was committed was sufficient,
because it duly informed petitioners that before and until 5 March 1998, over nine
million pesos had been taken by Gonzales as a result of petitioners’ acts. These acts
caused undue injury to the government and unwarranted benefits to the said
paymaster.
Second, the Information charges petitioners with violating Section 3(e) of R.A. 3019,
to wit:
Sec. 3. Corrupt practices of public officers. – In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful.
xxxx
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence.
Cesa contends that Gonzales should have been included in the Information, because
the latter incurred cash shortages and allegedly had unliquidated cash
advances.62 Cesa is wrong. The Information seeks to hold petitioners accountable for
their actions, which allowed Gonzales to obtain cash advances, and paved the way
for her to incur cash shortages, leading to a loss of over nine million pesos. Thus, the
Information correctly excluded her because her alleged acts did not fall under the
crime charged in the Information.
Third and last, the Information sufficiently specified the offense that violated Section
3(e) of R.A. 3019, the essential elements of which are as follows:
1. The accused must be a public officer discharging administrative, judicial
or official functions;
2. The accused must have acted with manifest partiality, evident bad faith or
gross inexcusable negligence; and
3. The action of the accused caused undue injury to any party, including the
government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of the functions of the accused. 63
The Information is sufficient, because it adequately describes the nature and cause of
the accusation against petitioners,64 in the same Information does not mean that
three distinct offenses were thereby charged but only implied that the offense
charged may have been committed through any of the modes provided by the
law.namely the violation of the aforementioned law. The use of the three phrases –
"manifest partiality," "evident bad faith" and "inexcusable negligence" 65 In addition,
there was no inconsistency in alleging both the presence of conspiracy and gross
inexcusable negligence, because the latter was not simple negligence.
Rather, the negligence involved a willful, intentional, and conscious indifference to
the consequences of one’s actions or omissions.66
II.
Petitioners’ gross negligence amounting to bad faith, the undue injury to the
government, and the unwarranted benefits given to Gonzales, were all proven
beyond reasonable doubt.
Petitioners do not controvert the first element of the offense but assail the
Sandiganbayan’s finding of gross inexcusable negligence, undue injury and
unwarranted benefit. Nevertheless, their contention must fail.
Petitioners committed gross
negligence amounting to bad faith
when they approved and disbursed
the cash advances in violation of law
and rules and regulations.
have to comply with R.A. 7160, P.D. 1445, and COA Circulars 90-331, 92-382, and
97-002 on the proper procedure for the approval and grant of cash advances. These
laws and rules and regulations state that cash advances can only be disbursed for a
legally authorized specific purpose and cannot be given to officials whose previous
cash advances have not been settled or properly accounted for. being the Cash
Division Chief, City Treasurer and City Administrator –Petitioners 67 Cash
advances should also be equal to the net amount of the payroll for a certain pay
period, and they should be supported by the payroll or list of payees and their net
payments.68
However, petitioners failed to observe the foregoing. We quote hereunder the
findings of the COA team as contained in its Narrative Report:
A. Granting, Utilization and Liquidation of cash advances:
1. During the period, September 20, 1995 to March 5, 1998,
records and verification documents show that additional cash
advances were granted (Annex 13), even if the previous cash
advances were not yet liquidated.
It resulted in excessive granting of cash advances, which created
the opportunity to misappropriate public funds since excess or idle
funds were placed in the hands of the paymaster under her total
control and disposal. This is in violation of Section 89, PD 1445;
Section 339, RA 7160 and paragraph 4.1.2 of COA Circular No.
97-002.
2. The amounts of cash advances for salary payments were not
equal to the net amount of the payroll for a pay period in violation
of par. 4.2.1. COA Circular No. 90-331. Section 48 (g), COA
Circular No. 92-382 and par. 4.2.1, COA Circular No. 97-002. In
fact, all cash advance vouchers for salaries were not supported by
payrolls or list of payees to determine the amount of the cash
advance to be granted, and that the face of the disbursement
voucher (sample voucher marked as Annex 14) did not indicate the
specific office/ department and period covered for which the cash
advance was granted in violation of par. 4.1.5 COA Cir. No. 90-
331, Section 48(e) COA Cir. 92-382 and par. 4.1.7 and 4.2.2 COA
Cir No. 97-002. The amount of the cash advance could therefore be
in excess of the required amount of the payroll to be paid since it
can not be determined which payroll, pay period and department
employees are going to be paid by the amount drawn.
Consequently, the liquidations which were made later, cannot
identify which particular cash advances are liquidated, considering
that there are other previous cash advances not yet liquidated, thus
resulting in the failure to control cash on hand.1âwphi1
3. Cash advances for salaries and wages were not liquidated within
5 days after each 15 day/end of the month pay period in violation
of par. 5.1.1 COA Cir. 90-331 and 97-002 and Section 48 (k) of
COA Cir No. 92-382. In fact, the balance of unliquidated cash
advance as of December 31, 1997 per audit, amounted to P
10,602,527.90 consisting of ₱6,388,147.94, ₱3,205,373.16 and P
1,009,006.80 for General, SEF and Trust Fund (Annex 15)
respectively, in violation of Par. 5.8 COA Cir Nos. 90-331 and 97-
002 and Section 48 (o) COA Cir. No. 92-382. However, the
balance shown was understated as of December 31, 1997 by
₱2,395,517.08 as discussed in items D.2 pages 15 & 16.
Records showed that part of the total cash advances of ₱12,000,000.00 appears to
have been used to liquidate partially the previous year’s unliquidated cash
advance/balance of ₱10,602,527.90 since the accountable officer liquidated her cash
advance by way of cash refunds/returns from January 8-14, 1998 in the total amount
of ₱8,076,382.36 (Annex 15 E) in violation of par. 4.1.5 COA Cir. 90-331, Section
48 of COA Cir 92-382 and par. 4.1.7 of COA Cir. 97-002.
The concerned City Officials (refer to Part III of this report) signed, certified and
approved the disbursements/cash advance vouchers, and signed and countersigned
the corresponding checks despite the deficiencies which are violations of laws, rules
and regulations mentioned in the preceding paragraphs.
The accountable officer was able to accumulate excess or idle funds within her total
control and disposal, resulting in the loss of public funds, due to the flagrant
violations by the concerned city officials of the abovementioned laws, rules and
regulations.
On the other hand, the verification and reconciliation of the paymaster’s
accountability cannot be determined immediately because the submission of
financial reports and its supporting schedules and vouchers/payrolls by the
Accounting Division was very much delayed (Annex 16), in violation of Section
122, PD 1445, despite several communications from the Auditor to submit said
reports, latest of which is attached as Annex 16.a.
xxxx
D. The following practices of the Office of the City Accountant resulted in
inaccurate and misleading information in the financial statements including the
balance of unliquidated cash advances in violation of Section 111 and 112 of PD
1445:
1. Cash returns made on January 8 to 14, 1998 were recorded in the
accounting records as credits to Mrs. Gonzales accountability in
December 1997 amounting to ₱8,075,382.36 as shown in the
subsidiary ledger (Annex 20. 1-4) and as evidenced by the official
receipts (Annex 20a. 1-6) as follows:
xxxx
 2. Some liquidations/ disbursements in January 1998 were included
as credits to accountability or a reduction of the paymaster's
accountability as of December 1997 amounting to ₱2,395,517.08.
xxxx
3. Verification of accounting records maintained in the Accounting
Division revealed that the index cards (Annex 21) as a control
device in the processing of cash advance voucher recorded only
cash advances granted to Paymaster. It failed to show the
liquidations/ disposition of public funds. Hence, unliquidated
balance of cash advances can not be determined at a glance when a
cash advance voucher is being processed by the accounting
personnel.
E. Other Deficiencies:
1. There were two claimants who alleged that they did not receive
the financial aid intended for them as fire victims. However,
payroll showed that there were initials/signatures indicated therein
acknowledging receipt of said claim.
2. There were two (2) cash advance vouchers (Annex 22b. 1-2)
which bear no approval of proper official in BOX marked as "C"
hereof, yet checks were issued in violation of Section 4.5 of PD
1445 which provide that disbursement or disposition of
government funds of property shall invariably bear the approval of
the proper officials. x x x
3. Accounting records showed that JV #354 under Trust Fund in
the amount of ₱147,200.00 was a liquidation on December 31,
1997. x x x one payroll supporting the JV was signed by only one
(1) person x x x. The other two payrolls supporting the JV were not
signed/ approved by the concerned officials, which means that the
payrolls were not valid disbursements.69 (Emphases supplied)
The above findings of the COA cannot be any clearer in thoroughly describing the
illegal and anomalous practices of the accused which led to the loss of ₱9,810,752.60
in people’s money.
When he testified before the anti-graft court, Bacasmas admitted that she did not
consider the net pay, which was lower than the amount requested, when she affixed
her signature to the vouchers, because it was supposedly common practice for the
paymaster to round off the figures.70 Furthermore, she signed the vouchers after
relying on the representation of Jaca, Cesa, and Gaviola. 71
the periods covered by the vouchers were not stated; the employees who were to be
paid by the cash advance were not specified; no supporting documents were attached
to the cash advances requested; and there was no determination of whether the
amounts requested were equivalent to the net pay.During his direct and cross-
examination, Gaviola admitted that he had affixed his signature to the vouchers,
because they had already been signed by Bacasmas, Cesa, and Jaca despite the
incompleteness thereof –72
Cesa said that because it was impossible for him to supervise all the personnel, he
instructed Bacasmas to examine and check the documents before signing
them.73 Thus, once Cesa saw the signature of Bacasmas, he immediately assumed
that the documents were in order, and he then signed the vouchers. 74
These facts show that petitioners failed to act in accordance with their respective
duties in the grant of cash advances. Moreover they repeatedly failed to do so.
Bacasmas signed 294 requests for cash advance, 11 disbursement vouchers, and 7
checks. Cesa signed cash advance requests and 299 disbursement vouchers. Gaviola
approved 303 disbursement vouchers and signed 355 checks.
not inadvertently, but wilfully and intentionally, with conscious indifference to
consequences insofar as other persons are affected.All these acts demonstrate that
petitioners, as correctly found by the Sandiganbayan, were guilty of gross negligence
amounting to bad faith. Gross and inexcusable negligence is characterized by a want
of even the slightest care, acting or omitting to act in a situation in which there is a
duty to act 75 Bad faith does not simply connote bad judgment or simple
negligence.76 It imports a dishonest purpose or some moral obloquy and conscious
doing of a wrong, a breach of a known duty due to some motive or interest or ill will
that partakes of the nature of fraud.77
Petitioners were well aware of their responsibilities before they affixed their
signatures on the cash advance vouchers. Yet, they still chose to disregard the
requirements laid down by law and rules and regulations by approving the vouchers
despite the incomplete information therein, the previous unliquidated cash advances,
the absence of payroll to support the cash requested, and the disparity between the
requested cash advances and the total net pay. What is worse is that they continue to
plead their innocence, allegedly for the reason that it was "common practice" in their
office not to follow the law and rules and regulations to the letter. For them to resort
to that defense is preposterous, considering that as public employees they are
required to perform and discharge their duties with the highest degree of excellence,
professionalism, intelligence and skill.78 The law and the rules are clear and do not
provide for exceptions.
Petitioners’ acts show that they were
unified in illegally approving
irregular cash advance vouchers in Petitioners wrongly approved Gonzales’ cash advance vouchers, thereby causing a
order to defraud the government. loss to the government in the amount of ₱9,810,752.60.

As found by the Sandiganbayan, petitioners’ acts not only show gross negligence
amounting to bad faith, but, when taken together, also show that there was
conspiracy in their willful noncompliance with their duties in order to defraud the
government.
In order to establish the existence of conspiracy, unity of purpose and unity in the
execution of an unlawful objective by the accused must be proven. 79 Direct proof is
not essential to show conspiracy.80 It is enough that there be proof that two or more
persons acted towards the accomplishment of a common unlawful objective through
a chain of circumstances, even if there was no actual meeting among them.81
The third element of the offense is that the action of the offender caused undue injury
to any party, including the government; or gave any party any unwarranted benefit,
advantage or preference in the discharge of his or her functions. Here, the
Sandiganbayan found that petitioners both brought about undue injury to the
government and gave unwarranted benefit to Gonzales. It is not mistaken.
Undue injury means actual damage.83 It must be established by evidence84 and must
have been caused by the questioned conduct of the offenders.85 On the other hand,
unwarranted benefit, advantage, or preference means giving a gain of any kind
without justification or adequate reasons.86

A cash advance request cannot be approved and disbursed without passing through When a cash examination is conducted, the paymaster should present her cashbook,
several offices, including those of petitioners. It is outrageous that they would have cash, and cash items for examination.87 Upon assessment thereof in the instant case,
us believe that they were not in conspiracy when over hundreds of vouchers were it was discovered that ₱9,810,752.60 was missing, as plainly evidenced by the COA
signed and approved by them in a course of 30 months, without their noticing Narrative Report, from which we quote:
irregularities therein that should have prompted them to refuse to sign the vouchers.
Clearly, they were in cahoots in granting the cash advances to Gonzales. By these
acts, petitioners defrauded the government of such a large sum of money that should Balance last cash examination, September 20, 1995 P 2,685,719.78
not have been disbursed in the first place, had they been circumspect in performing
Add: Cash Advances received – September 20, 1995 to March 5, 1998
their functions.
Gen. Fund 193,320,350.00
Not only were petitioners unified in defrauding the government, but they were also
unified in not reporting the negligence of their cohorts because of their own SEF 107,400,600.00
negligence. Cesa himself admitted knowing that Gonzales had unliquidated cash
advances, yet he signed the vouchers. He also failed to inform the other officials that Trust Fund 3,989,783.00 304,710,733.00
they should not sign the vouchers and tolerated their negligence when they affixed Total: P
their signatures thereto. Petitioners, through their admissions before the 307,396,452.78
Sandiganbayan, all knew that there were irregularities in the vouchers; still they
failed to correct one another, because they themselves signed the vouchers despite Less: Liquidations – September 20, 1995 to March 5, 1998
the glaring irregularities therein.
Gen. Fund 187,290,452.66
82
Petitioners cannot hide behind our declaration in Arias v. Sandiganbayan that heads
SEF 105,243,526.99
of offices cannot be convicted of a conspiracy charge just because they did not
personally examine every single detail before they, as the final approving authorities, Trust Fund 2,750,722.51 295,284,752.16
affixed their signatures to certain documents. The Court explained in that case that
conspiracy was not adequately proven, contrary to the case at bar in which Balance of Accountability, March 5, 1998 P 12,111,700.62
petitioners’ unity of purpose and unity in the execution of an unlawful objective were
sufficiently established. Also, unlike in Arias, where there were no reasons for the Less: Inventory of Cash and Cash Items Allowed 2,300,948.02
heads of offices to further examine each voucher in detail, petitioners herein, by 88
virtue of the duty given to them by law as well as by rules and regulations, had the Shortage P 9,810,752.60
responsibility to examine each voucher to ascertain whether it was proper to sign it in (Emphasis supplied)
order to approve and disburse the cash advance.
It is beside the point that no one complained about not receiving any salary from the
city government. The fact remains that more than nine million pesos was missing –
public funds lost, to the detriment of the government.
This undue injury was brought about by petitioners’ act of approving the cash
advance vouchers of Gonzales even if they lacked the requirements prescribed by
law and rules and regulations, and even if Gonzales had failed to liquidate her
previous cash advances, thereby clearly giving her an unwarranted benefit.
No less than the Constitution declares that public office is a public trust. 89 Public
officers and employees must at all times be accountable to the people and serve them
with utmost responsibility, integrity, loyalty, and efficiency. 90 Petitioners, by
intentionally approving deficient cash advance vouchers, have manifestly failed to
live up to this constitutional standard.
III.
The indeterminate penalty of 12 years and one
month as minimum to 15 years as maximum is fully justified.
Under the Indeterminate Sentence Law, if the offense is punished by a special law
such as R.A. 3019, the trial court shall sentence the accused to an indeterminate
penalty, the maximum term of which shall not exceed the maximum fixed by this
law, and the minimum term shall not be less than the minimum prescribed by the
same law. The penalty for violation of Section 3(e) of R.A. 3019 is "imprisonment
for not less than six years and one month nor more than fifteen years, perpetual
disqualification from public office, and confiscation or forfeiture in favor of the
Government of any prohibited interest and unexplained wealth manifestly out of
proportion to his salary and other lawful income." Hence, the indeterminate penalty
of 12 years and 1 month as minimum to 15 years as maximum imposed by the
Sandiganbayan in the present case is within the range fixed by law.
However, we are aware that if the range of imposable penalty under the law were to
be divided into three tiers based on the length of imprisonment, the penalty imposed
in this case would be on the highest tier. Hence, the Sandiganbayan should have
explained the reason behind its imposed penalty, for while Section 9 of R.A. 3019
seems to grant it discretion over the indeterminate penalty to be prescribed for
violation of Section 3(e), this Court finds it only proper that the anti-graft court
justify the latter’s imposition of the highest possible penalty. Otherwise, the exercise
of this discretion would appear to be whimsical – something that this Court will not
tolerate. After all, it is our duty to be vigilant in ensuring the correctness and justness
of the ultimate adjudication of cases before us.
Nevertheless, we find the imposition of the highest range of imposable penalty in this
case to be fully justified.1âwphi1 In Jaca v. People of the Philippines,91 promulgated
on 28 January 2013, the Court convicted the very same petitioners herein of exactly
the same kinds of violation of Section 3(e) of R.A. 3019 as those in the present case
and imposed therein the indeterminate penalty of 12 years and 1 month as minimum
to 15 years as maximum. The violations in that case arose from acts of gross
inexcusable negligence similar in all respects to those committed in this case, except
for the amount of cash shortages involved and the identity of the paymaster who
benefitted from the acts of petitioners. Even the period covered by the COA audit in
Jaca – 20 September 1995 to 5 March 1998 – is exactly the same as that in the
present case. It is therefore clear that the Court has previously determined these
identical acts to be so perverse as to justify the penalty of imprisonment of 12 years
and 1 month as minimum to 15 years as maximum. Hence, we adopt the same
penalty in this case.
Indeed, the penalty imposed is justified, considering the extent of the negligent acts
involved in this case in terms of the number of statutory laws and regulations
violated by petitioners and the number of positive duties neglected. The Court
emphasizes that petitioners violated not just one but several provisions of various
regulations and laws namely: Sections 89 and 122 of P.O. 1445, Section 339 of R.A.
7160, paragraphs 4.1.2, 4.1.7, 4.2.1, 4.2.2, and 5.1.1 of COA Circular No. 97-002,
paragraphs 4.2.1, 4.1.5, and 5.1.1 of COA Circular No. 90-331~ and Section 48 (g),
(e), and (k) of COA Circular No. 92-382. Worse, they admitted being aware of these
regulations. These circumstances. coupled with the number of times such instances
of violations and negligence were wantonly and systematically repeated, show that
their acts bordered on malice. Hence, we are convinced that the penalty imposed by
the Sandiganbayan is warranted.
Furthermore, we take judicial notice of the need to stop these corrupt practices that
drain local government coffers of millions of pesos in taxpayers' money, which could
have been utilized for sorely needed services. In fact, as discussed in its Narrative
Report, the COA team found instances where fire victims alleged that they did not
receive the financial aid intended for them and yet the payroll showed that there were
initials/signatures indicated therein acknowledging receipt of said claim. This
diversion of people's money from their intended use has to end.
WHEREFORE, in view of the foregoing, the 07 May 2009 Decision and 27 August
2009 Resolution of the Sandiganbayan in Crim. Case No. 26914 are AFFIRMED.
SO ORDERED.
PROBATION LAW
G.R. No. 206513, October 20, 2015
MUSTAPHA DIMAKUTA Y MARUHOM, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
The Court is now faced with one of the predicaments I discussed in my Dissenting
and Concurring Opinion in Colinares v. People.1 The question regarding the
application of the Probation Law is again inescapably intertwined with the present
petition. Consequently, I must reiterate my assertions and arguments in Colinares to
the case at bar.
In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias Boyet
was indicted for Violation of Section 5 Paragraph (b), Article III of Republic Act
(R.A.) No. 7610 or the Special Protection of Children Against Abuse, Exploitation
and Discriminatory Act. The Information reads:
That on or about the 24th day of September 2005, in the City of Las Piñas,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, did then and there willfully, unlawfully and feloniously
commit a lascivious conduct upon the person of one AAA, who was then a sixteen
(16) year old minor, by then and there embracing her, touching her breast and private
part against her will and without her consent and the act complained of is prejudicial
to the physical and psychological development of the
complainant.2ChanRoblesVirtualawlibrary
After trial, the RTC promulgated its Decision3 which convicted petitioner of the
crime charged and sentenced him to suffer an indeterminate penalty of imprisonment
ranging from ten (10) years of prision mayor, as minimum, to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal, as maximum, with the
accessory penalty of perpetual absolute disqualification. In addition, he was directed
to pay a fine of P20,000.00, civil indemnity of P25,000.00, and moral damages of
P25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA) arguing,
among other things, that even assuming he committed the acts imputed, still there is
no evidence showing that the same were done without the victim's consent or
through force, duress, intimidation or violence upon her. Surprisingly, when asked to
comment on the appeal, the Office of the Solicitor General (OSG), relying heavily
on People v. Abello,5 opined that petitioner should have been convicted only of Acts
of Lasciviousness under Article 336 of the Revised Penal Code (RPC) in view of the
prosecution's failure to establish that the lascivious acts were attended by force or
coercion because the victim was asleep at the time the alleged acts were committed.
On June 28, 2012, the CA rendered a Decision6 adopting the recommendation of the
OSG. In modifying the RTC Decision, petitioner was found guilty of Acts of
Lasciviousness under Article 336 of the RPC and was sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correctional, as maximum. Likewise, he was
ordered to pay P20,000.00 as civil indemnity and P30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012. 7 Instead of further
appealing the case, he filed on July 23, 2012 before the CA a manifestation with
motion to allow him to apply for probation upon remand of the case to the
RTC.8 Petitioner invoked the case of Colinares v. People9 which allowed petitioner
therein to apply for probation after his sentence was later reduced on appeal by the
Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner's manifestation
with motion.10 It was ruled that Colinares is inapplicable since petitioner therein
raised as sole issue the correctness of the penalty imposed and claimed that the
evidence presented warranted only a conviction for the lesser offense. Instead, the
appellate court viewed as appropriate the case of Lagrosa v. People,11 wherein the
application for probation was denied because petitioners therein put in issue on
appeal the merits of their conviction and did not simply assail the propriety of the
penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a
Resolution13 dated March 13, 2013; hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is warranted in
order to better understand and apply the wisdom of its framers to cases invoking its
application.
In this jurisdiction, the concept of probation was introduced during the American
colonial period.14 For juvenile delinquents, Act No. 320315 was enacted on December
3, 1924. It was later amended by Act Nos. 3309, 16 3559,17 and 3725.18 As to
offenders who are eighteen years old and above, Act No. 4221 19 was passed by the
legislature and took effect on August 7, 1935. Said Act allowed defendants who are
convicted and sentenced by a Court of First Instance or by the Supreme Court on
appeal, except those who are convicted of offenses enumerated in Section 8
thereof,20 to be placed on probation upon application after the sentence has become
final and before its service has begun.21 However, We declared in People v.
Vera22 that Act No. 4221 is unconstitutional and void as it constitutes an improper
and unlawful delegation of legislative authority to the provincial boards.
During the martial law period, then President Ferdinand E. Marcos issued
Presidential Decree (P.D.) No. 96823 on July 24, 1976. Originally, P.D. No. 968
allowed the filing of an application for probation at any time after the defendant had
been convicted and sentenced. Section 4 of which provides:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the court
may, after it shall have convicted and sentenced a defendant and upon
application at any time of said defendant, suspend the execution of said sentence
and place the defendant on probation for such period and upon such terms and
conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only. An application for probation shall be filed with the trial court, with notice
to the appellate court if an appeal has been taken from the sentence of conviction.
The filing of the application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal. An order granting or denying probation
shall not be appealable.24
Later, the filing of an application for probation pending appeal was still allowed
when Section 4 of P.D. No. 968 was amended by P.D. No. 1257 25 on December 1,
1977 by providing that such application may be made after the defendant had been
convicted and sentenced but before he begins to serve his sentence. Thus:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the court
may, after it shall have convicted and sentenced a defendant but before he
begins to serve his sentence and upon his application, suspend the execution of
said sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of the filing of the
application for probation and he may submit his comment on such application within
ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine with subsidiary imprisonment in case of insolvency. An application for
probation shall be filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing of the application
shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a
pending appeal. In the latter case, however, if the application is filed on or after the
date of the judgment of the appellate court, said application shall be acted upon by
the trial court on the basis of the judgment of the appellate court.
An order granting or denying probation shall not be appealable. 26
On October 5, 1985, Section 4 was subsequently amended by P.D. No.
1990.27 Henceforth, the policy has been to allow convicted and sentenced defendant
to apply for probation within the 15-day period for perfecting an appeal. As
modified, Section 4 of the Probation Law now reads:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant and upon
application by said defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best; Provided, that no
application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only. An application for probation shall be filed with the trial court. The filing of
the application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. 28
The reason for the disallowance may be inferred from the preamble of P.D. No.
1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted of
offenses and who may be entitled to probation still appeal the judgment of conviction
even up to the Supreme Court, only to pursue their application for probation when
their appeal is eventually dismissed;cralawlawlibrary
WHEREAS, the process of criminal investigation, prosecution, conviction and
appeal entails too much time and effort, not to mention the huge expenses of
litigation, on the part of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating and
prosecuting accused persons from the lower courts up to the Supreme Court, are
oftentimes rendered nugatory when, after the appellate Court finally affirms the
judgment of conviction, the defendant applies for and is granted
probation;cralawlawlibrary
WHEREAS, probation was not intended as an escape hatch and should not be used
to obstruct and delay the administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and
rehabilitated;cralawlawlibrary
WHEREAS, it becomes imperative to remedy the problems abovementioned
confronting our probation system[.]ChanRoblesVirtualawlibrary

Observing the developments in our Probation Law, the Court settled in Llamado v.
Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that it had
established a prolonged but definite period during which an application for probation
may be granted by the trial court. That period was: "After [the trial court] shall have
convicted and sentenced a defendant but before he begins to serve his sentence."
Clearly, the cut-off time - commencement of service of sentence - takes place not
only after an appeal has been taken from the sentence of conviction, but even after
judgment has been rendered by the appellate court and after judgment has become
final. Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 provides
that "the application [for probation] shall be acted upon by the trial court on the basis
of the judgment of the appellate court"; for the appellate court might have increased
or reduced the original penalty imposed by the trial court, x x x
xxxx
In sharp contrast with Section 4 as amended by PD No. 1257, in its present form,
Section 4 establishes a much narrower period during which an application for
probation may be filed with the trial court: "after [the trial court] shall have convicted
and sentenced a defendant and - within the period for perfecting an appeal -." As if
to provide emphasis, a new proviso was appended to the first paragraph of Section 4
that expressly prohibits the grant of an application for probation "if the defendant has
perfected an appeal from the judgment of conviction." It is worthy of note too that
Section 4 in its present form has dropped the phrase which said that the filing of an
application for probation means "the automatic withdrawal of a pending appeal."
The deletion is quite logical since an application for probation can no longer be filed
once an appeal is perfected; there can, therefore, be no pending appeal that would
have to be withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of petitioner's
counsel and the dissenting opinion. We are unable to persuade ourselves that Section
4 as it now stands, in authorizing the trial court to grant probation "upon application
by [the] defendant within the period for perfecting an appeal" and in reiterating in
the proviso that
"no application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction."
did not really mean to refer to the fifteen-day period established, as indicated above,
by B.P. Big. 129, the Interim Rules and Guidelines Implementing B.P. Big. 129 and
the 1985 Rules on Criminal Procedure, but rather to some vague and undefined time,
i.e., "the earliest opportunity" to withdraw the defendant's appeal.
The whereas clauses invoked by petitioner did not, of course, refer to the fifteen-day
period. There was absolutely no reason why they should have so referred to that
period for the operative words of Section 4 already do refer, in our view, to such
fifteen-day period. Whereas clauses do not form part of a statute, strictly speaking;
they are not part of the operative language of the statute.
Nonetheless, whereas clauses may be helpful to the extent they articulate the general
purpose or reason underlying a new enactment, in the present case, an enactment
which drastically but clearly changed the substantive content of Section 4 existing
before the promulgation of P.D. No. 1990. Whereas clauses, however, cannot control
the specific terms of the statute; in the instant case, the whereas clauses of P.D. No.
1990 do not purport to control or modify the terms of Section 4 as amended. Upon
the other hand, the term "period for perfecting an appeal" used in Section 4 may be
seen to furnish specification for the loose language "first opportunity" employed in
the fourth whereas clause. "Perfection of an appeal" is, of course, a term of art but it
is a term of art widely understood by lawyers and judges and Section 4 of the
Probation Law addresses itself essentially to judges and lawyers. "Perfecting an
appeal" has no sensible meaning apart from the meaning given to those words in our
procedural law and so the law-making agency could only have intended to refer to
the meaning of those words in the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law was
amended precisely to put a stop to the practice of appealing from judgments of
conviction even if the sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused fails in his bid. 32 The
Probation Law "expressly requires that an accused must not have appealed his
conviction before he can avail himself of probation. This outlaws the element of
speculation on the part of the accused - to wager on the result of his appeal -that
when his conviction is finally affirmed on appeal, the moment of truth well nigh at
hand and the service of his sentence inevitable, he now applies for probation as an
'escape hatch,' thus rendering nugatory the appellate court's affirmance of his
conviction."33
Verily, Section 4 of the Probation Law provides that the application for probation
must be filed with the trial court within the 15-day period for perfecting an appeal.
The need to file it within such period is intended to encourage offenders, who are
willing to be reformed and rehabilitated, to avail themselves of probation at the first
opportunity.34 If the application for probation is filed beyond the 15-day period, then
the judgment becomes final and executory and the lower court can no longer act on
the application for probation. On the other hand, if a notice of appeal is perfected, the
trial court that rendered the judgment of conviction is divested of any jurisdiction to
act on the case, except the execution of the judgment when it has become final and
executory.
In view of the latest amendment to Section 4 of the Probation Law that "no
application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction," prevailing
jurisprudence35 treats appeal and probation as mutually exclusive remedies because
the law is unmistakable about it.36 Indeed, the law is very clear and a contrary
interpretation would counter its envisioned mandate. Courts have no authority to
invoke "liberal interpretation" or "the spirit of the law" where the words of the statute
themselves, and as illuminated by the history of that statute, leave no room for doubt
or interpretation.37 To be sure, the remedy of convicted felons who want to avail of
the benefits of probation even after the remedy of an appeal is to go to the Congress
and ask for the amendment of the law. To surmise a converse construal of the
provision would be dangerously encroaching on the power of the legislature to enact
laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion in Colinares38 the
application of the Probation Law in the said case deserves a second hard look so as to
correct the mistake in the application of the law in that particular case and in similar
cases which will be filed before the courts and inevitably elevated to Us like this
petition.
To refresh, Colinares concluded that since the trial court imposed a penalty beyond
what is allowed by the Probation Law, albeit erroneously, the accused was deprived
of his choice to apply for probation and instead was compelled to appeal the case.
The reprehensible practice intended to be avoided by the law was, therefore, not
present when he appealed the trial court's decision. Taking into account that the
accused argued in his appeal that the evidence presented against him warranted his
conviction only for attempted, not frustrated, homicide, the majority of the Court
opined that the accused had purposely sought to bring down the impossible penalty
in order to allow him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have been
allowed the benefit of probation. As I have previously stated and insisted upon,
probation is not a right granted to a convicted offender; it is a special privilege
granted by the State to a penitent qualified offender,39 who does not possess the
disqualifications under Section 9 of P.D. No. 968, as amended.40 Likewise, the
Probation Law is not a penal law for it to be liberally construed to favor the
accused.41
In the American law paradigm, probation is considered as an act of clemency and
grace, not a matter of right.42 It is a privilege granted by the State, not a right to
which a criminal defendant is entitled.43 In City of Aberdeen v. Regan,44 it was
pronounced that:
The granting of a deferred sentence and probation, following a plea or verdict of
guilty, is a rehabilitative measure and, as such, is not a matter of right but is a matter
of grace, privilege, or clemency granted to
the deserving.ChanRoblesVirtualawlibrary
As such, even in the American criminal justice model, probation should be granted
only to the deserving or, in our system, only to qualified "penitent offenders" who
are willing to be reformed and rehabilitated. Corollarily, in this jurisdiction, the
wisdom behind the Probation Law is outlined in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him with
individualized treatment;cralawlawlibrary
(b) provide an opportunity for the reformation of a penitent offender which might
be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.45ChanRoblesVirtualawlibrary
As I have previously indicated in Colinares, if this Court will adopt as jurisprudential
doctrine the opinion that an accused may still be allowed to apply for probation even
if he has filed a notice of appeal, it must be categorically stated that such appeal must
be limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty imposed by
the lower court, which when corrected would entitle the accused to apply for
probation; and
2. When the appeal is merely intended to review the crime for which the accused was
convicted and that the accused should only be liable to the lesser offense which is
necessarily included in the crime for which he was originally convicted and the
proper penalty imposable is within the probationable period.
In both instances, the penalty imposed by the trial court for the crime committed by
the accused is more than six years; hence, the sentence disqualifies the accused from
applying for probation. The accused should then be allowed to file an appeal under
the afore-stated grounds to seek a review of the crime and/or penalty imposed by the
trial court. If, on appeal, the appellate court finds it proper to modify the crime and/or
the penalty imposed, and the penalty finally imposed is within the probationable
period, the accused should still be allowed to apply for probation.
In addition, before an appeal is filed based on the grounds enumerated above, the
accused should first file a motion for reconsideration of the decision of the trial court
anchored on the above-stated grounds and manifest his intent to apply for probation
if the motion is granted. The motion for reconsideration will give the trial court an
opportunity to review and rectify any errors in its judgment, while the manifestation
of the accused will immediately show that he is agreeable to the judgment of
conviction and does not intend to appeal from it, but he only seeks a review of the
crime and/or penalty imposed, so that in the event that the penalty will be modified
within the probationable limit, he will immediately apply for probation. Without
such motion for reconsideration, the notice of appeal should be denied outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but was denied by the trial
court;cralawlawlibrary
(2) that the appeal is only for reviewing the penalty imposed by the lower court or
the conviction should only be for a lesser crime necessarily included in the crime
charged in the information; and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from
the judgment of conviction, which involves a review of the merits of the case and the
determination of whether the accused is entitled to acquittal. However, under the
recommended grounds for appeal which were enumerated earlier, the purpose of the
appeal is not to assail the judgment of conviction but to question only the propriety
of the sentence, particularly the penalty imposed or the crime for which the accused
was convicted, as the accused intends to apply for probation upon correction of the
penalty or conviction for the lesser offense. If the CA finds it proper to modify the
sentence, and the penalty finally imposed by the appellate court is within the
probationable period, or the crime for which the accused is eventually convicted
imposes a probationable penalty, application for probation after the case is remanded
to the trial court for execution should be allowed.
It is believed that the recommended grounds for appeal do not contravene Section 4
of the Probation Law, which expressly prohibits only an appeal from the judgment of
conviction. In such instances, the ultimate reason of the accused for filing the appeal
based on the afore-stated grounds is to determine whether he may avail of probation
based on the review by the appellate court of the crime and/or penalty imposed by
the trial court. Allowing the afore-stated grounds for appeal would give an accused
the opportunity to apply for probation if his ground for appeal is found to be
meritorious by the appellate court, thus, serving the purpose of the Probation Law to
promote the reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the following
instances:
1. When the accused is convicted by the trial court of a crime where the penalty
imposed is within the probationable period or a fine, and the accused files a notice of
appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction
in issue, even if there is an alternative prayer for the correction of the penalty
imposed by the trial court or for a conviction to a lesser crime, which is necessarily
included in the crime in which he was convicted where the penalty is within the
probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the Probation
Law prohibits granting an application for probation if an appeal from the sentence of
conviction has been perfected by the accused.
In this case, petitioner appealed the trial court's judgment of conviction before the
CA alleging that it was error on the part of the RTC to have found him guilty of
violating Section 5(b), Article III of R.A. No. 7610. He argued that the RTC should
not have given much faith and credence to the testimony of the victim because it was
tainted with inconsistencies. Moreover, he went on to assert that even assuming he
committed the acts imputed on him, still there was no evidence showing that the
lascivious acts were committed without consent or through force, duress,
intimidation or violence because the victim at that time was in deep slumber. It is
apparent that petitioner anchored his appeal on a claim of innocence and/or lack of
sufficient evidence to support his conviction of the offense charged, which is clearly
inconsistent with the tenor of the Probation Law that only qualified penitent offender
are allowed to apply for probation. The CA, therefore, did not err in applying the
similar case of Lagrosa v. People46 wherein the protestations of petitioners therein
did not simply assail the propriety of the penalties imposed but meant a profession of
guiltlessness, if not complete innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply for
probation he should have admitted his guilt and buttressed his appeal on a claim that
the penalty imposed by the RTC was erroneous or that he is only guilty of a lesser
offense necessarily included in the crime for which he was originally convicted.
Unfortunately for him, he already perfected his appeal and it is late in the day to
avail the benefits of probation despite the imposition of the CA of a probationable
penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of
Lasciviousness under Article 336 of the RPC, such conclusion clearly contravenes
the law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with violation of Section 5(b),
Article III of R.A. No. 7610 based on the complaint of a sixteen (16)-year-old girl for
allegedly molesting her by touching her breast and vagina while she was sleeping.
The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse
or lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall
be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subject to other sexual abuse; Provided, That when
the victim is under twelve (12) years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium period; x x x
(Emphasis supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to
sexual abuse.
3. The child, whether male or female, is below 18 years of age. 47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to other
sexual abuse when he or she indulges in lascivious conduct under the coercion or
influence of any adult.48 This statutory provision must be distinguished from Acts of
Lasciviousness under Articles 336 and 339 of the RPC. As defined in Article 336 of
the RPC, Acts of Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness or
lewdness;cralawlawlibrary
(2) That it is done under any of the following circumstances:
a. By using force or 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. 49
Article 339 of the RPC likewise punishes acts of lasciviousness committed with
the consent of the offended party if done by the same persons and under the same
circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen years of
age by any person in public authority, priest, home-servant, domestic, guardian,
teacher, or any person who, in any capacity, shall be entrusted with the education or
custody of the woman; or
2. if committed by means of deceit against a woman who is single or a widow of
good reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age and
under eighteen (18) years of age, the accused shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim is
a virgin and consents to the lascivious acts through abuse of confidence or when the
victim is single or a widow of good reputation and consents to the lascivious acts
through deceit, or;cralawlawlibrary
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not covered by
lascivious conduct as defined in R.A. No. 7610. In case the acts of lasciviousness is
covered by lascivious conduct under R.A. No. 7610 and it is done through coercion
or influence, which establishes absence or lack of consent, then Art. 336 of the RPC
is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on the part
of the victim to the lascivious conduct, which was done through the employment of
coercion or influence. The offender may likewise be liable for sexual abuse under
R.A. No. 7610 if the victim is at least eighteen (18) years and she is unable to fully
take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition. 50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another
person's mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person if the victim did not consent either it was done through
force, threat or intimidation; or when the victim is deprived of reason or is otherwise
unconscious; or by means of fraudulent machination or grave abuse of authority as
sexual assault as a form of rape. However, in instances where the lascivious conduct
is covered by the definition under R.A. No. 7610, where the penalty is reclusion
temporal medium, and the act is likewise covered by sexual assault under Article
266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the offender
should be liable for violation of Section 5(b), Article III of R.A. No. 7610, where the
law provides for the higher penalty of reclusion temporal medium, if the offended
party is a child victim. But if the victim is at least eighteen (18) years of age, the
offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A. No. 7610,
unless the victim is at least eighteen (18) years and she is unable to fully take care of
herself or protect herself from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition, in which case, the offender
may still be held liable for sexual abuse under R.A. No. 7610.
There could be no other conclusion, a child is presumed by law to be incapable of
giving rational consent to any lascivious act, taking into account the constitutionally
enshrined State policy to promote the physical, moral, spiritual, intellectual and
social well-being of the youth, as well as, in harmony with the foremost
consideration of the child's best interests in all actions concerning him or her.51 This
is equally consistent with the with the declared policy of the State to provide special
protection to children from all forms of abuse, neglect, cruelty, exploitation and
discrimination, and other conditions prejudicial to their development; provide
sanctions for their commission and carry out a program for prevention and deterrence
of and crisis intervention in situations of child abuse, exploitation, and
discrimination.52 Besides, if it was the intention of the framers of the law to make
child offenders liable only of Article 266-A of the RPC, which provides for a lower
penalty than R.A. No. 7610, the law could have expressly made such statements.
As correctly found by the trial court, all the elements of sexual abuse under Section
5(b), Article III of R.A. No. 7610 are present in the case at bar.
First, petitioner's lewd advances of touching the breasts and vagina of his hapless
victim constitute lascivious conduct as defined in Section 32, Article XIII of the
Implementing Rules and Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic
area of a person.53
Second, petitioner clearly has moral ascendancy over the minor victim not just
because of his relative seniority but more importantly due to the presumed presence
of mutual trust and confidence between them by virtue of an existing employment
relationship, AAA being a domestic helper in petitioner's household. Notably, a child
is considered as sexually abused under Section 5(b) of R.A. No. 7610 when he or she
is subjected to lascivious conduct under the coercion or influence of any adult.
Intimidation need not necessarily be irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the free exercise of the will of the
offended party.54 The law does not require physical violence on the person of the
victim; moral coercion or ascendancy is sufficient.55 On this point, Caballo v.
People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when a
child indulges in sexual intercourse or any lascivious conduct due to the
coercion or influence of any adult, the child is deemed to be a "child exploited in
prostitution and other sexual abuse." In this manner, the law is able to act as an
effective deterrent to quell all forms of abuse, neglect, cruelty, exploitation and
discrimination against children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious conduct
under the coercion or influence of any adult exists when there is some form of
compulsion equivalent to intimidation which subdues the free exercise of the
offended party's free will. Corollary thereto, Section 2(g) of the Rules on Child
Abuse Cases conveys that sexual abuse involves the element of influence which
manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a child to
engage in, or assist another person to engage in, sexual intercourse or lascivious
conduct or the molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or trust in any way
that deprives a person of free will and substitutes another's objective." Meanwhile,
"coercion" is the "improper use of x x x power to compel another to submit to the
wishes of one who wields it."57ChanRoblesVirtualawlibrary
Finally, the victim is 16 years of age at the time of the commission of the offense.
Under Section 3 (a) of R.A. No. 7610, "children" refers to "persons below eighteen
(18) years of age or those over but unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition."
The decision of the trial court finding the petitioner guilty of Violation of Section
5(b), Article III R.A. No. 7610 should have been upheld by the CA instead of
erroneously adopting the recommendation of the OSG, which inaccurately relied
on People v. Abello.58 In said case, the decisive factor for the acquittal of the accused
was not the absence of coercion or intimidation on the offended party, who was then
sleeping at the time the lascivious act was committed, but the fact that the victim
could not be considered as a "child" under R.A. No. 7610. This Court held that while
the twenty-one year old woman has polio as a physical disability that rendered her
incapable of normal function, the prosecution did not present any testimonial or
documentary evidence - any medical evaluation or finding from a qualified
physician, psychologist or psychiatrist - attesting that the physical condition rendered
her incapable of fully taking care of herself or of protecting herself against sexual
abuse.
Thus, it is clear that petitioner could not have been entitled to apply for probation in
the first place. Regrettably, since neither the accused nor the OSG questioned the CA
Decision, it has attained finality and to correct the error at this stage is already barred
by the right of the accused against double jeopardy.
Based on the above disquisitions, the petitioner should be denied the benefit of the
Probation Law and that the Court should adopt the recommendations above-stated in
situations where an accused files an appeal for the sole purpose of correcting the
penalty imposed to qualify him for probation or where he files an appeal specifically
claiming that he should be found guilty of a lesser offense necessarily included with
the crime originally filed with a prescribed penalty which is probationable.
SO ORDERED.
G.R. No. 182748 December 13, 2011
ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to prove all that it takes;
b) what distinguishes frustrated homicide from attempted homicide; and c) when an
accused who appeals may still apply for probation on remand of the case to the trial
court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel)
with frustrated homicide before the Regional Trial Court (RTC) of San Jose,
Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on
June 25, 2000, he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby
store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby.
From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a
huge stone, about 15 ½ inches in diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino
lying by the roadside. Ananias tried to help but someone struck him with something
hard on the right temple, knocking him out. He later learned that Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since he happened
to be smoking outside his house. He sought the help of a barangay tanod and they
brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered
two lacerated wounds on the forehead, along the hairline area. The doctor testified
that these injuries were serious and potentially fatal but Rufino chose to go home
after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-
defense. He testified that he was on his way home that evening when he met Rufino,
Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed
the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall.
Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab
Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino
on the head with it. When Ananias saw this, he charged towards Arnel and tried to
stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the
same stone. Arnel then fled and hid in his sister’s house. On September 4, 2000, he
voluntarily surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party
on the night of the incident. His three companions were all drunk. On his way home,
Diomedes saw the three engaged in heated argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable
doubt of frustrated homicide and sentenced him to suffer imprisonment from two
years and four months of prision correccional, as minimum, to six years and one day
of prision mayor, as maximum. Since the maximum probationable imprisonment
under the law was only up to six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and,
alternatively, seeking conviction for the lesser crime of attempted homicide with the
consequent reduction of the penalty imposed on him. The CA entirely affirmed the
RTC decision but deleted the award for lost income in the absence of evidence to
support it.3 Not satisfied, Arnel comes to this Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel and the
Solicitor General to submit their respective positions on whether or not, assuming
Arnel committed only the lesser crime of attempted homicide with its imposable
penalty of imprisonment of four months of arresto mayor, as minimum, to two years
and four months of prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.
Both complied with Arnel taking the position that he should be entitled to apply for
probation in case the Court metes out a new penalty on him that makes his offense
probationable. The language and spirit of the probation law warrants such a stand.
The Solicitor General, on the other hand, argues that under the Probation Law no
application for probation can be entertained once the accused has perfected his
appeal from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck Rufino on the
head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of
frustrated homicide; and
 3. Given a finding that Arnel is entitled to conviction for a lower offense
and a reduced probationable penalty, whether or not he may still apply for
probation on remand of the case to the trial court.
The Court’s Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he
merely acted in self-defense when he hit Rufino back with a stone.
When the accused invokes self-defense, he bears the burden of showing that he was
legally justified in killing the victim or inflicting injury to him. The accused must
establish the elements of self-defense by clear and convincing evidence. When
successful, the otherwise felonious deed would be excused, mainly predicated on the
lack of criminal intent of the accused.4
In homicide, whether consummated, frustrated, or attempted, self-defense requires
(1) that the person whom the offender killed or injured committed unlawful
aggression; (2) that the offender employed means that is reasonably necessary to
prevent or repel the unlawful aggression; and (3) that the person defending himself
did not act with sufficient provocation.5
If the victim did not commit unlawful aggression against the accused, the latter has
nothing to prevent or repel and the other two requisites of self-defense would have
no basis for being appreciated. Unlawful aggression contemplates an actual, sudden,
and unexpected attack or an imminent danger of such attack. A mere threatening or
intimidating attitude is not enough. The victim must attack the accused with actual
physical force or with a weapon.6
Here, the lower courts found that Arnel failed to prove the element of unlawful
aggression. He alone testified that Jesus and Ananias rained fist blows on him and
that Rufino and Ananias tried to stab him. No one corroborated Arnel’s testimony
that it was Rufino who started it. Arnel’s only other witness, Diomedes, merely
testified that he saw those involved having a heated argument in the middle of the
street. Arnel did not submit any medical certificate to prove his point that he suffered
injuries in the hands of Rufino and his companions.7
In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel
was the aggressor. Although their versions were mottled with inconsistencies, these
do not detract from their core story. The witnesses were one in what Arnel did and
when and how he did it. Compared to Arnel’s testimony, the prosecution’s version is
more believable and consistent with reality, hence deserving credence. 8
Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable
for frustrated homicide when the wounds he inflicted on Rufino, his victim, were not
fatal and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide 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.9 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. 10
Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful
that it knocked Rufino out. Considering the great size of his weapon, the impact it
produced, and the location of the wounds that Arnel inflicted on his victim, the Court
is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not
frustrated, homicide. In Palaganas v. People,11 we ruled that when the accused
intended to kill his victim, as shown by his use of a deadly weapon and the wounds
he inflicted, but the victim did not die because of timely medical assistance, the
crime is frustrated murder or frustrated homicide. If the victim’s wounds are not
fatal, the crime is only attempted murder or attempted homicide.
Thus, the prosecution must establish with certainty the nature, extent, depth, and
severity of the victim’s wounds. While Dr. Belleza testified that "head injuries are
always very serious,"12 he could not categorically say that Rufino’s wounds in this
case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds actually are
not fatal on that very day?
A: I could not say, with the treatment we did, prevent from becoming fatal. But
on that case the patient preferred to go home at that time.
Q: The findings also indicated in the medical certificate only refers to the length
of the wound not the depth of the wound?
A: When you say lacerated wound, the entire length of the layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is broken up the label
of the frontal lo[b]e, we always call it lacerated wound, but in that kind of
wound, we did not measure the depth.13
Indeed, Rufino had two lacerations on his forehead but there was no indication that
his skull incurred fracture or that he bled internally as a result of the pounding of his
head. The wounds were not so deep, they merely required suturing, and were
estimated to heal in seven or eight days. Dr. Belleza further testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give antibiotics and
antit[e]tanus – the problem the contusion that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of them would
rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence on record to support the
prosecution’s claim that Rufino would have died without timely medical
intervention. Thus, the Court finds Arnel liable only for attempted homicide and
entitled to the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he
having appealed from the judgment of the RTC convicting him for frustrated
homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and
holds that the maximum of the penalty imposed on him should be lowered to
imprisonment of four months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum. With this new penalty, it would be but
fair to allow him the right to apply for probation upon remand of the case to the
RTC.
Some in the Court disagrees. They contend that probation is a mere privilege granted
by the state only to qualified convicted offenders. Section 4 of the probation law (PD
968) provides: "That no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction." 15 Since
Arnel appealed his conviction for frustrated homicide, he should be deemed
permanently disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not that
Arnel has the right to such privilege; he certainly does not have. What he has is the
right to apply for that privilege. The Court finds that his maximum jail term should
only be 2 years and 4 months. If the Court allows him to apply for probation because
of the lowered penalty, it is still up to the trial judge to decide whether or not to grant
him the privilege of probation, taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals "from the
judgment of conviction" is disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the regional trial court, now set
aside; and, two, a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position, it will apply the
probation law on Arnel based on the trial court’s annulled judgment against him. He
will not be entitled to probation because of the severe penalty that such judgment
imposed on him. More, the Supreme Court’s judgment of conviction for a lesser
offense and a lighter penalty will also have to bend over to the trial court’s
judgment—even if this has been found in error. And, worse, Arnel will now also be
made to pay for the trial court’s erroneous judgment with the forfeiture of his right to
apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the
horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply for
probation would dilute the ruling of this Court in Francisco v. Court of Appeals 16 that
the probation law requires that an accused must not have appealed his conviction
before he can avail himself of probation. But there is a huge difference between
Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused
guilty of grave oral defamation and sentenced him to a prison term of one year and
one day to one year and eight months of prision correccional, a clearly probationable
penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal,
hence clearly waiving his right to apply for probation. When the acquittal did not
come, he wanted probation. The Court would not of course let him. It served him
right that he wanted to save his cake and eat it too. He certainly could not have both
appeal and probation.
The Probation Law, said the Court in Francisco, requires that an accused must not
have appealed his conviction before he can avail himself of probation. This
requirement "outlaws the element of speculation on the part of the accused—to
wager on the result of his appeal—that when his conviction is finally affirmed on
appeal, the moment of truth well-nigh at hand, and the service of his sentence
inevitable, he now applies for probation as an ‘escape hatch’ thus rendering nugatory
the appellate court’s affirmance of his conviction." 17
Here, however, Arnel did not appeal from a judgment that would have allowed him
to apply for probation. He did not have a choice between appeal and probation. He
was not in a position to say, "By taking this appeal, I choose not to apply for
probation." The stiff penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel to now seek probation under this
Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It
remains that those who will appeal from judgments of conviction, when they have
the option to try for probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the penalty
imposed on him. He claimed that the evidence at best warranted his conviction only
for attempted, not frustrated, homicide, which crime called for a probationable
penalty. In a way, therefore, Arnel sought from the beginning to bring down the
penalty to the level where the law would allow him to apply for probation.
In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide,
but only of attempted homicide, is an original conviction that for the first time
imposes on him a probationable penalty. Had the RTC done him right from the start,
it would have found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum.lavvphil This would have afforded
Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to probation through
no fault of his. The underlying philosophy of probation is one of liberality towards
the accused. Such philosophy is not served by a harsh and stringent interpretation of
the statutory provisions.18 As Justice Vicente V. Mendoza said in his dissent in
Francisco, the Probation Law must not be regarded as a mere privilege to be given to
the accused only where it clearly appears he comes within its letter; to do so would
be to disregard the teaching in many cases that the Probation Law should be applied
in favor of the accused not because it is a criminal law but to achieve its beneficent
purpose.19
One of those who dissent from this decision points out that allowing Arnel to apply
for probation after he appealed from the trial court’s judgment of conviction would
not be consistent with the provision of Section 2 that the probation law should be
interpreted to "provide an opportunity for the reformation of a penitent offender." An
accused like Arnel who appeals from a judgment convicting him, it is claimed,
shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of
conviction. Here, however, it convicted Arnel of the wrong crime, frustrated
homicide, that carried a penalty in excess of 6 years. How can the Court expect him
to feel penitent over a crime, which as the Court now finds, he did not commit? He
only committed attempted homicide with its maximum penalty of 2 years and 4
months.
Ironically, if the Court denies Arnel the right to apply for probation under the
reduced penalty, it would be sending him straight behind bars. It would be robbing
him of the chance to instead undergo reformation as a penitent offender, defeating
the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and imposed on
Arnel the correct penalty of two years and four months maximum, he would have
had the right to apply for probation. No one could say with certainty that he would
have availed himself of the right had the RTC done right by him. The idea may not
even have crossed his mind precisely since the penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair to deny Arnel the
right to apply for probation when the new penalty that the Court imposes on him is,
unlike the one erroneously imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the
Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS
petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted homicide,
and SENTENCES him to suffer an indeterminate penalty from four months of
arresto mayor, as minimum, to two years and four months of prision correccional, as
maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as moral damages,
without prejudice to petitioner applying for probation within 15 days from notice that
the record of the case has been remanded for execution to the Regional Trial Court of
San Jose, Camarines Sur, in Criminal Case T-2213.
SO ORDERED.
G. R. No. 152044 - July 3, 2003
 DOMINGO LAGROSA and OSIAS BAGUIN, petitioners, vs. THE PEOPLE
OF THE PHILIPPINES and THE HONORABLE COURT OF
APPEALS, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review of the decision of the Court of Appeals in CA-G.R. No.
67308,1 which affirmed the Resolution of the Regional Trial Court of Tagbilaran
City, Branch 2, denying petitioners Application for Probation, and its Order denying
petitioners Motion for Reconsideration.2
The undisputed facts are as follows.
On October 29, 1996, the Regional Trial Court of Tagbilaran City, Branch 2,
rendered a decision in Criminal Case No. 8243,3 finding petitioners Domingo
Lagrosa and Osias Baguin guilty of violation of Section 68 of P.D. 705, as amended
(The Revised Forestry Code), for having in their possession forest products without
the requisite permits. The trial court sentenced them to suffer the indeterminate
penalty of imprisonment from two (2) years, four (4) months and one (1) day of
prision correccional, as minimum, to eight (8) years of prision mayor, as maximum.
Petitioners Motion for Reconsideration of the decision4 was denied by the trial court
on November 21, 1996.5
Petitioners appealed their conviction to the Court of Appeals, where it was docketed
as CA-G.R. CR No. 20632.6 On March 14, 2000, the appellate court affirmed the
conviction of the petitioners, with the modification as to the penalty imposed, which
was reduced to an indeterminate penalty ranging from six (6) months and one (1) day
of prision correccional, as minimum, to one (1) year, eight (8) months and twenty
one (21) days of prision correccional, as maximum.7 The decision became final and
executory on April 12, 2000.
On August 29, 2001, petitioners filed an Application for Probation with the trial
court,8 which, as mentioned at the outset, was denied. Petitioners motion for
reconsideration was likewise denied by the trial court. Hence, petitioners filed a
petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP
No. 67308.9 On January 11, 2002, the Court of Appeals rendered the assailed
decision affirming the questioned resolutions of the trial court.
Hence this petition, raising the following arguments:
1) That Section 4 of Presidential Decree No. 968, as amended by PD No. 1990, is
very absurd and illogical considering that petitioners were not given the opportunity
to apply for probation when they were convicted by the Regional Trial Court of
Bohol, Branch 2, because the penalty imposed by said court is more than six (6)
years and therefore non-probationable.
That the first opportunity for herein petitioners to apply for probation was when the
Court of Appeals modified the sentence imposed by the Regional Trial Court of
Bohol, Branch 2, from two (2) years, four (4) months and one (1) day of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum, to six
(6) months and one (1) day to one (1) year, eight (8) months and twenty one (21)
days as maximum which is clearly probationable.
2) That the ruling of this Honorable Supreme Court in the case of Pablo Francisco
versus Court of Appeals, et al., G.R. No. 108747, is not applicable to the instant case
because in the said Francisco case the accused therein can apply for probation
because the penalty imposed by the lower court was already probationable but the
accused instead appealed the decision but in the case of herein petitioners they
cannot apply for probation when they were convicted because the penalty imposed
by the lower court was more than six (6) years and therefore non-probationable.
3) That the decision of the Court of Appeals herein sought to be reviewed is clearly
contrary to the purpose of the Probation Law.10
The law that is at the heart of this controversy is Presidential Decree No. 968, also
known as the Probation Law, as amended by P.D. 1990, the pertinent provision of
which reads:
SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon application by
said defendant within the period for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction. (underscoring ours)
Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only. An application for probation shall be filed with the trial court. The filing of
the application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
Under Section 9 (a) of the Probation Law, offenders who are sentenced to serve a
maximum term of imprisonment of more than six years are disqualified from seeking
probation.
It should be noted that before P.D. 968 was amended by P.D. 1990, the accused was
allowed to apply for probation even after he had already filed an appeal, as long as
he had not yet begun to serve his sentence.11
Petitioners contend that they should be allowed to apply for probation even if they
had already appealed the decision of the trial court. They argue that their case should
be considered an exception to the general rule which excludes an accused who has
appealed his conviction from the benefits of probation. In the case at bar, the trial
court sentenced petitioners to a maximum term of eight years, which was beyond the
coverage of the Probation Law. They only became eligible for probation after the
Court of Appeals modified the judgment of the trial court and reduced the maximum
term of the penalty imposed on them to one year, eight months and twenty-one
days.12 They submit that the ruling in the case of Francisco v. CA13 is not applicable
because in that case, the accused appealed their conviction notwithstanding the fact
that the maximum term of the prison sentence imposed on them by the trial court was
less than six years.14
In its Comment, the Office of the Solicitor General reiterates the express provision of
P.D. 968 prohibiting the grant of probation to those who have appealed their
convictions.15 It argues that, even if the petitioners have appealed for the purpose of
reducing an incorrect penalty, this fact does not serve to remove them from the
prohibition in Section 4 of P.D. 968 for the law makes no such distinction.16
There is no question that petitioners appealed from the decision of the trial court.
This fact alone merits the denial of petitioners Application for Probation. Having
appealed from the judgment of the trial court and having applied for probation only
after the Court of Appeals had affirmed their conviction, petitioners were clearly
precluded from the benefits of probation.17
However, petitioners now ask us not to apply the letter of the law, claiming that their
situation should be considered an exception to the rule. Their petition is without
merit.
Petitioners repeatedly assert that their application for probation was made at the "first
opportunity," undoubtedly invoking the fourth "whereas" clause of P.D. 1990, which
reads:
WHEREAS, probation was not intended as an escape hatch and should not be used
to obstruct and delay the administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and rehabilitated; x x x.
To bolster this assertion, petitioners claim that what prompted them to appeal the
decision of the trial court was the erroneous penalty imposed by the trial court. 18
Petitioners are not being very candid. In their appellants brief filed in CA-G.R. CR
No. 20632, they raised the following assignment of errors:
I
THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED GUILTY
OF THE OFFENSE CHARGED BECAUSE THE EVIDENCE AGAINST THEM
LACKS MORAL CERTAINTY.
II.
IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN
IMPOSING THE PROPER PENALTY AS PROVIDED BY LAW.
The fact that petitioners put the merits of their conviction in issue on appeal belies
their claim that their appeal was prompted by what was admittedly an incorrect
penalty. Certainly, the protestations of petitioners connote a profession of
guiltlessness, if not complete innocence, and do not simply assail the propriety of the
penalties imposed. For sure, petitioners never manifested that they were appealing
only for the purpose of correcting a wrong penalty to reduce it to within
probationable range. Hence, upon interposing an appeal, more so after asserting their
innocence therein, petitioners should be precluded from seeking probation. By
perfecting their appeal, petitioners ipso facto relinquished the alternative remedy of
availing of the Probation Law, the purpose of which is simply to prevent speculation
or opportunism on the part of an accused who, although already eligible, does not at
once apply for probation, but did so only after failing in his appeal.19
Although it has been suggested that an appeal should not bar the accused from
applying for probation if the appeal is solely to reduce the penalty to within the
probationable limit may be equitable,20 we are not yet prepared to accept this
proposition, specially given the factual circumstances of this case. Had the
petitioners appeal from the decision of the trial court raised the impropriety of the
penalty imposed upon them as the sole issue, perhaps this Court would have been
more sympathetic to their plight. Unfortunately, their misrepresentation has led to
their own undoing.
WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of
the Court of Appeals dated January 11, 2002 in CA-G.R. No. 67308, which affirmed
the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying
petitioners Application for Probation, and its Order denying petitioners Motion for
Reconsideration, is AFFIRMED. Costs against the petitioners.
SO ORDERED.
LILIA J. VICOY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
G.R. No. 138203 | 2002-07-03
Tagged under keywords
 Hence, petitioner filed a special civil action for certiorari with the Regional Trial
Court of Bohol, Branch 3, contending that the MTCC of Tagbilaran gravely abused
its discretion in denying her the right to appeal. Named respondents therein were the
A discussion citing this case or law is available. Presiding Judge of MTCC of Tagbilaran, Branch 2, and the People of the
Philippines, represented by the Philippine National Police of Tagbilaran City. The
Waiver of right to appeal by an accused parties were ordered by the court to submit their memorandum within 10 days, after
which, the case was submitted for judgment on the pleadings.[7]
DECISION
Realizing that the People should be represented by the City Prosecutor's Office, the
YNARES-SANTIAGO, J.:
court issued an Order dated August 2, 1996, requiring the latter to enter its
appearance. In the same order, petitioner was directed to furnish the City Prosecutor's
This is a petition under Rule 45 on pure question of law assailing the February 9,
Office with a copy of her memorandum and of the assailed judgment, thus:
1998[1] and February 25, 1998[2] Orders of the Regional Trial Court of Bohol,
Branch 3, in SP. Civil Case No. 5881, dismissing petitioner's special civil action for
From the reading of the petition that gave rise to this case, and of the memorandum
certiorari.
of the petitioner, it is the considered opinion of this Court, and so holds, that the City
Prosecutor of Tagbilaran be required to enter his appearance for the State in the light
The present controversy stemmed from a judgment of conviction promulgated on
of the failure of respondent Judge Emma Enrico-Supremo to submit her reply to
August 24, 1995 by the Municipal Trial Court in Cities (MTCC) of Tagbilaran,
comment to the petition. Besides, the Court noticed that the People of the Philippines
Branch 2, in Criminal Case Nos. 5265 and 5307. The dispositive portion thereof
has been impleaded as one of the respondents.
reads:
PREMISES CONSIDERED, Atty. Dionisio A. Galido, counsel for the petitioner, is
WHEREFORE, Judgment is hereby rendered as follows:
hereby directed to furnish the Office of the City Prosecutor of Tagbilaran copies of
the questioned judgment and their memorandum, and for the City Prosecutor to
1. In Criminal Case No. 5265, the Court finds and so holds the herein accused Lilia
submit within ten (10) days from receipt thereof, his memorandum or any pleading
Vicoy y Jumagdao GUILTY beyond reasonable doubt for violation of City
on the matter.[8]
Ordinance No. 365-B for peddling fish outside the Agora Public Market, and
accordingly sentences her to suffer the penalty of a fine of Fifty Pesos (P50.00) with
On February 9, 1998,[9] the Regional Trial Court rendered the assailed Order
subsidiary imprisonment in case of insolvency and to pay the costs;
dismissing petitioner's special civil action for certiorari for failure to comply with the
aforequoted August 2, 1996 Order. A motion for reconsideration of the said order of
2. In Criminal Case No. 5307, the Court finds and so holds the herein accused Lilia
dismissal was denied on February 25, 1999.[10]
Vicoy y Jumagdao GUILTY beyond reasonable doubt of the crime of Resistance and
Serious Disobedience To Agents Of A Person In Authority, and accordingly
Hence, the instant petition. The sole issue raised in this petition is whether or not the
sentences her to suffer the penalty of three (3) months of arresto mayor and to pay a
petition for certiorari was validly dismissed by the Regional Trial Court on the
fine of two Hundred Pesos (P200.00) without subsidiary imprisonment in case of
ground of petitioner's failure to comply with its Order dated August 2, 1996.
insolvency and to pay the costs.
Section 3, Rule 17, of the Rules of Court, provides:
SO ORDERED.[3]
Section 3. Dismissal due to fault of plaintiff. - If, for no justifiable cause, the plaintiff
On the same date, August 24, 1995, petitioner filed an application for probation.[4]
fails to appear on the date of the presentation of his evidence in chief on the
On September 18, 1995, however, petitioner filed a motion to withdraw her
complaint, or to prosecute his action for an unreasonable length of time, or to comply
application for probation and simultaneously filed a notice of appeal.[5]
with these Rules or any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion, without prejudice to the
In an Omnibus Order[6] dated September 22, 1995, the MTCC of Tagbilaran granted
right of the defendant to prosecute his counterclaim in the same or in a separate
petitioner's withdrawal of her application for probation but denied her notice of
action. This dismissal shall have the effect of an adjudication on the merits, unless
appeal for having been filed out of time. Petitioner filed a motion for reconsideration
otherwise declared by the court. (Emphasis supplied)
of the denial of her appeal, however, the same was denied.
In the case at bar, the trial court categorically directed petitioner, in its August 2,
1996 Order, to furnish the City Prosecutor's Office with a copy of her memorandum
and of the assailed judgment. Petitioner's counsel did not comply, prompting the
court to dismiss the petition for certiorari on February 9, 1998. The fact that the City
Prosecutor's Office has not yet entered its appearance is no justification to
petitioner's adamant and continued insistence not to comply with a lawful order of
the court. Every court has the power to enforce and compel obedience to its orders,
judgments, and processes in all proceedings pending before it.[11] The Regional
Trial Court's dismissal of petitioner's special civil action, therefore, was but a valid
exercise of said power.
Moreover, even assuming that the Regional Trial Court did not order the said
dismissal, petitioner's special civil action, questioning the denial of her notice of
appeal, would still fail. Note that petitioner filed an application for probation. Section
7, Rule 120, of the Rules on Criminal Procedure is explicit that a judgment in a
criminal case becomes final when the accused has applied for probation. This is
totally in accord with Section 4 of Presidential Decree No. 968 (Probation Law of
1976, as amended), which in part provides that the filing of an application for
probation is deemed a waiver of the right to appeal.[12] Thus, there was no more
opportunity for petitioner to exercise her right to appeal, the judgment having
become final by the filing of an application for probation.
WHEREFORE, in view of all the foregoing, the petition is DENIED. The assailed
February 9, 1998 and February 25, 1999 Orders of the Regional Trial Court of
Bohol, Branch 3, in SP. Civil Case No. 5881 are AFFIRMED.
SO ORDERED.
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified offender. It
essentially rejects appeals and encourages an otherwise eligible convict to
immediately admit his liability and save the state of time, effort and expenses to
jettison an appeal. The law expressly requires that an accused must not have
appealed his conviction before he can avail of probation. This outlaws the element of
speculation on the part of the accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal, the moment of truth well-nigh at
hand, and the service of his sentence inevitable, he now applies for probation as an
"escape hatch" thus rendering nugatory the appellate court's affirmance of his
conviction. Consequently, probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated, who manifest spontaneity,
contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of P.D. 968,
as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC Trans.
Company he failed to control his outburst and blurted —
You employees in this office are all tanga, son of a bitches (sic),
bullshit. Puro kayo walang utak . . . . Mga anak ng puta . . .
. Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral
defamation in five (5) separate Informations instituted by five (5) of his employees,
each Information charging him with gravely maligning them on four different days,
i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of
Makati, Br. 61, found petitioner guilty of grave oral defamation in four (4) of the five
(5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and
105210, sentenced him to a prison term of one (1) year and one (l) day to one (1)
year and eight (8) months of prision correccional "in each crime committed on each
date of each case, as alleqed in the information(s)," ordered him to indemnify each
of the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar
and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's
fees, plus costs of suit.1 He was however acquitted in Crim. Case No. 105208 for
persistent failure of the offended party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on his innocence,
petitioner elevated his case to the Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his
conviction but appreciated in his favor a mitigating circumstance analogous to
passion or obfuscation. Thus —
. . . (he) was angry and shouting when he uttered the defamatory
words complained of . . . . he must have been angry and worried
"about some missing documents . . . as well as the letter of the
Department of Tourism advising ASPAC about its delinquent tax
of P1.2 million . . . . " the said defamatory words must have been
 uttered in the heat of anger which is a mitigating circumstance
analogous to passion or obfuscation.2
Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of
EIGHT (8) MONTHS imprisonment . . . . "3 After he failed to interpose an appeal
therefrom the decision.of the RTC became final. The case was then set for execution
of judgment by the MeTC which, as a consequence, issued a warrant of arrest.
But·before he could be arrested petitioner filed an application for probation which
the MeTC denied "in the light of the ruling of the Supreme Court in Llamado v.
Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992
dismissed his petition on the following grounds —
Initially, the Court notes that the petitioner has failed to comply
with the provisions of Supreme Court Circular No. 28-91 of
September 4, 1991. Violation of the circular is sufficient cause for
dismissal of the petition.
Secondly, the petitioner does not allege anywhere in the petition
that he had asked the respondent court to reconsider its above
order; in fact, he had failed to give the court an.opportunity to
correct itself if it had, in fact, committed any error on the matter.
He is, however, required to move for reconsideration of the
questioned order before filing a petition for certiorari (Sy It v.
Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a
ground for dismissal of his petition (Santos v. Vda. de Cerdenola, 5
SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit,
Inc. v. Public Service Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did not commit any
capricious, arbitrary, despotic or whimsical exercise of power in
denying the petitioner's application for probation . . . .
Fourthly, the petition for probation was filed by the petitioner out
of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant
probation after conviction, upon an application by the defendant within the period of
appeal, upon terms and conditions and period appropriate to each case, but expressly
rules out probation where an appeal has been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground and seeks this Court's
compassion in dispensing with the minor technicalities which may militate against
his petition as he now argues before us that he has not yet lost his right to avail of
probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason
for his appeal was precisely to enable him to avail himself of the benefits of the
Probation Law because the original Decision of the (Metropolitan) Trial Court was
such that he would not then be entitled to probation." 6 He contends that "he appealed
from the judgment of the trial court precisely for the purpose of reducing the
penalties imposed upon him by the said court to enable him to qualify for
probation." 7
The central issue therefore is whether petitioneris still qualified to avail of probation
even after appealing his conviction to the RTC which affirmed the MeTC except
with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those
not expressly included. Probation is not a right of an accused, but rather an act of
grace and clemency or immunity conferred by the state which may be granted by the
court to a seemingly deserving defendant who thereby escapes the extreme rigors of
the penalty imposed by law for the offense of which he stands convicted. 9 It is a
special prerogative granted by law to a person or group of persons not enjoyed by
others or by all. Accordingly, the grant of probation rests solely upon the discretion
of the court which is to be exercised primarily for the benefit of organized society,
and only incidentally for the benefit of the accused.10 The Probation Law should not
therefore be permitted to divest the state or its government of any of the latter's
prerogatives, rights or remedies, unless the intention of the legislature to this end is
clearly expressed, and no person should benefit from the terms of the law who is not
clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no
application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction," nor Llamado v. Court of
Appeals 11 which interprets the quoted provision, offers any ambiguity or
qualification. As such, the application of the law should not be subjected to any to
suit the case of petitioner. While the proposition that an appeal should not bar the
accused from applying for probation if the appealis solely to reduce the penalty to
within the probationable limit may be equitable, we are not yet prepared to accept
this interpretation under existing law and jurisprudence. Accordingly, we quote Mr.
Justice Feliciano speaking for the Court en banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation Law is not a penal statute.
We, however, understand petitioner's argument to be really that
any statutory language that appears to favor the accused in
acriminal case should be given.a "liberal interpretation." Courts . . .
have no authority to invoke "liberal interpretation" or "the spirit of
the law" where the words of the statute themselves, and·as
illuminated by the history of that statute, leave no room for doubt
or interpretation. We do not believe that "the spirit of·the law" may
legitimately be invoked to set at naught words which have a clear
and definite meaning imparted to them by our procedural law. The
"true legislative intent" must obviously be given effect by judges
and all others who are charged with the application and
implementation of a statute. It is absolutely essential to bear in
mind, however, that the spirit of the law and the intent that is to be
given effect are derived from the words actually used by the law-
maker, and not from some external, mystical or metajuridical
source independent of and transcending the words of the
legislature.
The Court is not here to be understood as giving a "strict
interpretation" rather than a "liberal" one to Section 4 of the
Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and
"liberal" are adjectives which too frequently impede a disciplined
and principled search for the meaning which the law-making
authority projected when it promulgated the language which we
must apply. That meaning is clearly visible in the text of Section 4,
as plain and unmistakable as the nose on a man's face. The Courtis
simply·reading Section 4 as it is in fact written. There is no need
for the involved process of construction that petitioner invites us to
engage in, a process made necessary only because petitioner rejects
the conclusion or meaning which shines through the words of the
statute. The first duty of the judge is to take and apply a statute as
he finds it, not as he would like·it to be. Otherwise, as this Court
in Yangco v. Court of First Instance warned, confusion and
uncertainty will surely follow, making, we might add, stability and
continuity in the law much more difficult to achieve:
. . . [w]here language is plain, subtle refinements
which tinge words as to give them the color of a
particular judicial theory are not only
unnecessary but decidedly harmful. That which
has caused so much confusion in the law, which
has made it so difficult for the public to
understand and know what the law is with
respect to a given matter, is in considerable
measure the unwarranted interference by judicial
tribunals with the English language as found in
statutes and contracts, cutting the words here and
inserting them there, making them fit personal
ideas of what the legislature ought to have done
or what parties should have agreed upon, giving
them meanings which they do not ordinarily
have cutting, trimming, fitting, changing and
coloring until lawyers themselves are unable to
advise their clients as to the meaning of a given
statute or contract until it has been submitted to
some court for its interpretation and construction.
The point in this warning may be expected to become sharper as
our people's grasp of English is steadily attenuated. 12
Therefore, that an appeal should not·bar the accused from applying for probation if
the appeal is taken solely to reduce the penalty is simply contrary to the clear and
express mandate of Sec, 4 of the Probation Law, as amended, which opens with a
negativeclause, "no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction." In Bersabal v.
Salvador, 13 we said —
By its very language, the Rule is mandatory. Under the rule of
statutory construction. negative words and phrases are to be
regarded as mandatory while those in the affirmative are merely
directory. . . . the use of the term "shall" further emphasizes its
mandatory character and means that it is imperative, operating to
impose a duty which may be enforced.
And where the law does not distinguish the courts should not distinguish; where the
law does not make exception the court should not except.
Second. At the outset, the penalties imposed by the MeTC were already
probationable. Hence, there was no need to appeal if only to reduce the penalties to
within the probationable period. Multiple prison terms imposed against an accused
found guilty of several offenses in one decision are not, and should not be, added up.
And, the sum of the multiple prison terms imposed against an applicant should not be
determinative of his eligibility for, nay his disqualification from, probation. The
multiple prison terms are distinct from each other, and if none of the terms exceeds
the limit set out in the Probation Law,i.e., not more than six (6) years, then he is
entitled to probation, unless he is otherwise specifically disqualified. The number of
offenses is immaterial as long as all the penalties imposed, taken separately, are
within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the
word maximum not total when it says that "[t]he benefits of this Decree shall not be
extended to those . . . . sentenced to serve a maximum term of imprisonment of more
than six years." Evidently, the law does not intend to sum up the penalties imposed
but to take each penalty separately and distinctly with the others. Consequently, even
if petitioner was supposed to have served his prison term of one (1) year and one (1)
day to one (1) year and eight (8) months of prision correccional sixteen (16) times as
he was sentenced to serve the prison term for "each crime committed on each date of
each case, as alleged in the information(s)," and in each of the four (4) informations,
he was charged with.having defamed the four (4) private complainants on four (4)
different, separate days, he was still·eligible for probation, as each prison term
imposed on petitioner was probationable.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for
probation is based on the assumption that those sentenced to higher penalties pose
too great a risk to society, not just because of their demonstrated capability for
serious wrong doing but because of the gravity and serious consequences of the
offense they might further commit. 14 The Probation Law, as amended, disqualifies
only those who have been convicted of grave felonies as defined in Art. 9 in relation
to Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been
convicted of multiple offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is principally the gravity of the
offense committed and the concomitant degree of penalty imposed. Those sentenced
to a maximum term not exceeding six (6) years are not generally considered callous,
hard core criminals, and thus may avail of probation.
To demonstrate the point, let ustake for instance one who is convicted in a single
decision of, say, thirteen (13) counts of grave oral defamation (for having defamed
thirteen [13] individuals in one outburst) and sentenced to a total prison term of
thirteen (13) years, and another who has been found guilty of mutilation and
sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to
twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin.
Obviously, the latter offender is more perverse and is disqualified from availing of
probation.
Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision
he could not have availed of the benefits of probation. Since he could have, although
he did not, his appeal now precludes him from applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may
be, that the penalties imposed against him should be summed up, still he would not
have qualified under the Decision rendered by the RTC since if the "STRAIGHT
penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is
multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and
eight (8) months, which is still way beyond the limit of not more than six (6) years
provided for in the Probation Law, as amended. To illustrate: 8 months multiplied by
16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and
8 months, hence, following his argument, petitioner cannot still be eligible for
probation as the total of his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be multiplied only four (4) times
since there are only four (4) Informations thereby allowing petitioner to qualify for
probation, instead of sixteen (16) times, is quite difficult to understand. The penalties
imposed by the MeTC cannot be any clearer — "one (1) year and one (1) day to one
(1) year and eight (8) months of prision correccional, in each crime committed on
each date of each case, as alleged in the information(s). "Hence, petitioner should
suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed,
the judgment of conviction and merely reduced the duration of each penalty imposed
by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" on account of a mitigating circumstance for each case, count or
incident of grave oral defamation·There is no valid reason therefore why the
penalties imposed by the RTC should be multiplied only four (4) times, and not
sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards
the culpability of petitioner in each of the sixteen (16) cases and reducing only the
duration of the penalties imposed therein. Thus —
Premises considered, the judgment of conviction rendered by the
trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C.
Francisco GUILTY beyond reasonable doubt in each of the above
entitled cases and appreciating in his favor the mitigating
circumstance which is analogous to passion or obfuscation, the
Court hereby sentences the said accused in each case to a straight
penalty of EIGHT (8) MONTHS imprisonment, with the accessory
penalties prescribed by law; and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that the accused was
acquitted or absolved in any of the four (4) counts under each of the four (4)
Informatfons, or that any part of thejudgment of conviction was reversed, or that any
of the cases, counts or incidents was dismissed. Otherwise, we will have to account
for the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is
that the judgment of conviction rendered by the was affirmed with the sole
modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not be summed up but
taken separately as the totality of all the penalties is not the test, petitioner should
have immediately filed an application for probation as he was already qualified after
being convicted by the MeTC, if indeed thereafter he felt humbled, was ready to
unconditionally accept the verdict of the court and admit his liability. Consequently,
in appealing the Decision of the MeTC to the RTC, petitioner lost his right to
probation. For, plainly, the law considers appeal and probation mutually exclusive
remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even correct the penalties
imposed by the MeTC, but to assert his innocence. Nothing more. The cold fact is
that petitioner appealed his conviction to the RTC not for the sole purpose of
reducing his penalties to make him eligible for probation — since he was already
qualified under the MeTC Decision — but rather to insist on his innocence. The
appeal record is wanting of any other purpose. Thus, in his Memorandum before the
RTC, he raised only three (3) statements of error purportedly committed by the
MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been
established because of his positive identification by the witness for the prosecution;
(b) in giving full faith and credence to the bare statements of the private
complainants despite the absence of corroborating testimonies; and, (c)in not
acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial
court committed an error in relying on his positive identification considering that
private complainants could not have missed identifying him who was their President
and General Manager with whom they worked for a good number of years. Petitioner
further argued that although the alleged defamatory words were uttered in the
presence of other persons, mostly private complainants, co-employees and clients,
not one of them was presented as a witness. Hence, according to petitioner, the trial
court could not have convicted him on the basis of the uncorroborative testimony of
private complainants. 19
Certainly, the protestations of petitioner connote profession of guiltlessness, if not
complete innocence, and do not simply put in issue the propriety of the penalties
imposed. For sure, the accused never manifested that he was appealing only for the
purpose of correcting a wrong penalty — to reduce it to within the probationable
range. Hence, upon interposing an appeal, more so after asserting his innocence
therein, petitioner should be precluded from seeking probation. By perfecting his
appeal, petitioner ipso facto relinquished his alternative remedy of availing of the
Probation Law the purpose of which is simply to prevent speculation or opportunism
on the part of an accused who although already eligible does not at once apply for
probation, but doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his conviction by the RTC
to the Court of Appeals does not necessarily mean that his appeal to the RTC was
solely to reduce his penalties. Conversely, he was afraid that the Court of Appeals
would increase his penalties, which could be worse for him. Besides, the RTC
Decision had already become final and executory because of the negligence,
according to him, of his former counsel who failed to seek possible remedies within
the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3,
par. (e), Rule 117 of the Rules of Court, 20 should have moved to quash as each of the
four (4) Informations filed against him charged four (4) separate crimes of grave oral
defamation, committed on four (4) separate days. His failure to do so however may
now be deemed a waiver under Sec. 8 of the same Rule 21 and he can be validly
convicted, as in the instant case, of as many crimes charged in the Information.
Fourth. The application for probation was filed way beyond the period allowed by
law. This is vital way beyond the period allowed by law and crucial. From the
records it is clear that the application for probation was filed "only after a warrant for
the arrest of petitioner had been issued . . . (and) almost two months after (his)
receipt of the Decision" 22 of the RTC. This is a significant fact which militates
against the instant petition. We quote with affirmance the well-written, albeit
assailed, ponencia of now Presiding Justice of the Court of Appeals Nathanael P. De
Pano, Jr., on the specific issue —
. . . the petition for probation was filed by the petitioner out of
time. The law in point, Section 4 of P.D. 968, as amended,
provides thus:
Sec. 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a
defendant, and upon application by said
defendant within the period for perfecting an
appeal. . . . place the defendant on probation . . . .
Going to the extreme, and assuming that an application for
probation from one who had appealed the trial court's judgment is
allowed by law, the petitioner's plea for probation was filed out of
time. In the petition is a clear statement that the petitioner was up
for execution of judgment before he filed his application for
probation. P.D. No. 968 says that the application for probation
must be filed "within the period for perfecting an appeal;" but in
this case, such period for appeal had passed, meaning to say that
the Regional Trial Court's decision had attained finality, and no
appeal therefrom was possible under the law. Even granting that an
appeal from the appellate court's judgment is contemplated by P.D.
968, in addition to the judgment rendered by the trial court, that
appellate judgment had become final and was, in fact, up for actual
execution before the application for probation was attempted by
the petitioner. The petitioner did not file his application for
probation before the finality of the said judgment; therefore, the
petitioner's attempt at probation was filed too late.
Our minds cannot simply rest easy on. the proposition that an application for
probation may yet be granted even if it was filed only after judgment has become
final, the conviction already set for execution and a warrant of arrest issued for
service of sentence.
The argument that petitioner had to await the remand of the case to the MeTC, which
necessarily must be after the decision of the RTC had become final, for him to file
the application for probation with the trial court, is to stretch the law beyond
comprehension. The law, simply, does not allow probation after an appeal has been
perfected.

Accordingly, considering that prevailing jurisprudence treats appeal and probation as

mutually exclusive remedies, and petitioner appealed from his conviction by the
MeTC although the imposed penalties were already probationable, and in his appeal,
he asserted only his innocence and did not even raise the issue of the propriety of the
penalties imposed on him, and finally, he filed an application for probation outside
the period for perfecting an appeal granting he was otherwise eligible for probation,
the instant petition for review should be as it is hereby DENIED.

SO ORDERED