.R. No.

218958

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
EDILBERTO NORADA y HARDER, and AGUSTIN SEVA y LACBANES, Accused
EUGENE VILLANUEVA y CANALES, Accused-Appellant

DECISION

DEL CASTILLO, J.:

Eugene Villanueva y Cañales (appellant) seeks in the present appeal, the reversal of the January
14, 2015 Decision  of the Court of Appeals (CA) in CA-G.R. CR HC No. 00686 which affirmed with
1

modifications the July 21, 2006 Decision  of the Regional Trial Court (RTC) of Bacolod City, Branch
2

50, convicting him of the complex crime of attempted Kidnapping with Murder.

The Antecedent Facts:

In the afternoon of February 12, 2004, Police Inspector Bonifer Gotas (PI Gotas), Precinct
Commander of Precinct VI, Bacolod City received a report that a dead person was recovered in a
sugarcane field at Vi11a Angela Subdivision. The deceased was identified as Reggie Pacil y Nojas
(victim), a 42-year old bachelor and was the school principal of the Alijis Elementary School in
Valladolid, Bacolod City.

During the investigation, PI Gotas was informed that the victim was killed at the Taculing Court
Apartelle. An inquiry from a roomboy revealed that in the evening of February 11, 2004, three men
on board a Suzuki multi cab rented and spent some time at Room 106 of the apartelle. PI Gotas
inspected the room and saw bloodstains scattered inside and on its wall. He was informed that one
of the occupants of the room was Edilberto Norada y Harder (Norada). Days after the incident,
Norada was arrested followed by appellant Villanueva and Agustin Sevay Lacbanes (Seva).

Rosalina Pacil (Rosalina), mother of the victim, testified that the latter received a monthly salary of
₱12,837.00 as school principal. Rosalina further testified that appellant was a friend of her son.
Appellant frequently visited their house since the victim finances the former’s fruit buying and selling
business. On February 11, 2004, appellant was in their house waiting for the arrival of the victim.
The victim arrived early in the evening with a Canadian friend, Ray Truck (Truck). Not long enough,
the victim and appellant left, leaving behind Truck. That was the last time Rosalina saw her son
alive.

In his Post Mortem Autopsy findings, Dr. Eli Cong (Dr. Cong), the medico-legal officer of the Bacolod
City Health Office, found lacerated wound and contusion hematoma on the body of the victim and
gave the cause of death as "Uncal Erniation, secondary to contusion hemorrhage brain parietal area,
a secondary. Fracture with laceration of the skull parietal area, head, secondary to trauma by blunt
instrument head, contusion hemorrhage, multiple"  which could have been caused by a blunt
3

instrument like a piece of wood.

Appellant admitted that he was a close friend of the victim. His narration of the event which served
as his defense and synthesized by the courts below is as follows:

x x x On February 8, 2004, he met Reggie Pacil [who] told him that he will treat him to a disco on
February 11, 2004 to celebrate in advance his forthcoming birthday. Mr. Pacil instructed him to look
for a car that they can hire to be used for that occasion. When he met the accused Edilberto
Norada[,] a taxi driver[,] who is an old acquaintance the following day, he told him to look for a car.
Norada succeeded in leasing a red Suzuki multicab owned by Cecile Pioquinto, a girl friend of the
accused Agustin Seva.

On February 10, 2004, [a]ccuscd Villanueva x x x and his coaccused Edilberto Norada, took the car
from the house of Cecile Pioquinto. At that time, the accused Agustin Seva was in the house of
Pioquinto. He paid rental in the amount of ₱2,000.00 for the use of the car.

Leaving behind the car and Norada, Villanueva x x x went to Valladolid to fetch Reggie Pacil. Reggie
Pacil was not in his house so he waited for him until about 7:30 in the evening. When Pacil arrived
on board a taxi, he was with his friend from Canada a person named Ray Trnck. He and Pacil took
that same taxi for Bacolod City while the Canadian was left behind in Pacil’s house.

Eugene Villanueva further declared that they met Edilberto Norada at a designated place in the
Golden Field Complex but instead of proceeding directly to a disco house, Pacil suggested that they
first find a place to spend the rest of the night.

Reggie Pacil rented a room in the Taculing Court Apartelle and said that they will wait there for
Pacil's other friends who will be joining them. As they were waiting, the two of them drank beer while
Norada stayed outside of the room. At about 2:00 in the morning, the friends of Pacil was (sic) not
able to arrive, so Villanueva x x x decided to go out alone. Pacil, however, would not allow him to
leave. Villanueva x x x at that time x x x was beginning to realize that Pacil was intending to use him.
When he held Pacil’s hand to enable him to leave, he slipped and fell on the floor. Pacil placed
himself over him and as they struggled, Edilberto Norada entered the room. Norada tried to pacify
them but he was boxed by Pacil. Norada left and returned with a piece of wood and he hit Pacil on
the head several times. Pacil fell unconscious. There was blood flowing out of Pacil’s head so he
and Norada panicked. They wrapped Pacil in a bedsheet and loaded him on the Suzuki multi-cab.
They went around Bacolod City not knowing what to do. Eventually they dumped the body of Pacil at
Villa Angela Subdivision. 4

The testimony of accused Norada, on the other hand, was summarized by the trial court as follows:

Accused Edilberto Norada declared that he and Agustin Seva for sometime, have been hatching to
organize a kidnap for ransom group in Bacolod City. This plan did not materialize as they have no
money to fund the operation. Later, in 2003, he met Eugene Villanueva, a security guard of the
Riverside Hospital. Eugene Villanueva revealed that he is a close friend of Reggie Pacil, a
schoolteacher at the town of Valladolid. Reggie Pacil has a friend, a Canadian national named Ray
Truck.. This Ray Truck has plenty of money x x x. The three (3) of them, namely, himself, Agustin
Seva and Eugene Villanueva, made a plan to kidnap Ray Truck.

To carry out their plan, accused Norada revealed that they rented the car of Cecile Pioquinto, who
·.vas the girlfriend of the accused Seva. They also rented a room at the Taculing Court Apartelle.
The accused Villanueva would bring both Reggie Pacil and the Canadian Ray Truck at the Apartelle
on the evening of February 11, 2004 and they will then execute their kidnap plan.

On the appointed day, Accused Villanueva fetched Reggie Pacil and Ray Truck in the house of Pacil
in Valladolid but only Reggie Pacil came. Ray Truck remained in the house of Reggie Pacil in
Valladolid. The non-appearance of Ray Truck made them change their plan. They decided to just
kidnap Reggie Pacil as they were convinced that Rey Truck will pay ransom for his release. They
decided that the kidnapping will take place as soon as Reggie Pacil fall asleep.
Inside their rented room in the Taculing Court Apartelle, Seva, Villanueva and Pacil [drank] liquor.
Norada x x x slept [in] the car in the garage of the Apartelle.

In the early morning of the following day Norada said that Villanueva woke him up and told him that
Pacil was already asleep. They began tying up Pacil but somehow he woke up and resisted. Norada
said that he hit Pacil [on] the head with a piece of wood. Pacil was rendered unconscious only briefly
and he again struggled. Norada hit him again and this time Pacil stayed motionless but snoring.
Then Scva taped the mouth of Pacil while he and Villanueva tied x x x his hands and feet. They
wrapped Pacil [in] a blanket, and loaded him into the car. Then they dumped his body at Villa Angela
subdivision. Thereafter, they parted ways. x x x:5

Ruling of the Regional Trial Court

The RTC gave probative value to the narration of Norada respecting the conspiracy to kidnap the
victim and how he was killed. The RTC further ruled that the killing was attended by treachery and
abuse of superior strength. The court a quo ratiocinated that:

In the present case, the crime of Kidnapping was only in its Attempted Stage as the offenders only
commenced the execution of the felony directly by ove1i acts but they failed to perform all the acts of
execution x x x by reason of the resistance of Reggie Pacil. Article 267 of the Revised Penal Code
defines and penalizes Kidnapping and Serious Illegal detention us a single felony such that all other
offenses committed by reason of or on occasion of it are absorbed by it by express 1rnmclatc of the
law. But the absorption rule will not apply when the Kidnapping is c.mly ·Attcn1ptcd or Frustrated, as
Article 267 docs not so provide. [W]hen kidnapping is attempted or Frustrated mid another crime is
committed arising out of the same act of attempted or frustrated kidnapping, the provision of th9
ordinary complex crime under Article 48 of the Revised Penal Code shall apply. An ordinary complex
crime under Article 48 is committed when a single act results to two or more grave or less grave
felonies. The act which constituted as an attempt to kidnap was also the sane act that caused the
death of Reggie Pacil. x x x

It should be stressed that the Information against the accused fully and completely alleges the
commission of the crime of Murder, with the killing of the victim qualified by treachery and abuse of
superior strength.

Article 48 of the Revised Penal Code provides that when a single act produces two (2) or more
grave or less grave felonies, the penalty for the graver offense shall be imposed, the same to be
applied in its maximum period. The maximum penalty for Murder is death but since the penalty of
death had already been abolished, the penalty is Reclusion Perpetua. 6

Thus, on July 21, 2006, the RTC rendered a Decision, the dispositive part of which stated:

FOR ALL THE FOREGOING, this Court finds all the three (3) accused, namely, Eugene Villanueva
Y Canales, Edilherto Norada Y Harder and Agustin Seva Y Lacbanes, GUIL Y beyond reasonable
doubt of the complex crime of Attempted Kidnapping with Murder, all as conspirators and all as
Principals by Direct participation, All of them are sentenced to suffer the penalty of RECLUSION
PERPETUA with all its accessories.

By way of civil liability, the three (3) above-named accused are held solidarily liable to pay to the
heirs of the late Reggie Pacil the sum of Php1,950,967.20 as compensatory damages; the sum of
Php50,000.00 as death indemnity. And to Mrs. Rosalina Pacil, the accused are solidarily liable to
pay the amount of Php50,000.00 as moral damages. 7
Norada did not appeal his conviction. Seva filed a Notice of Appeal but the same was denied for
having been filed out of time. Hence only the appeal of appellant Villanueva will be resolved in this
proceedings.

Ruling of the Court of Appeals

Like the trial court, the CA gave probative weight to the sworn statement of Norada and sustained its
admissibility considering that its contents were reiterated affirmatively in open court thus transposing
it as a judicial admission. The CA rejected appellant's plea of self-defense for his failure to prove the
element of tin lawful aggression arising from the victim. Thus the CA did not find any reason to
reverse the RTC Decision. Hence, on January 14, 2015, the CA rendered its assailed Decision with
the decretal portion reading as follows:

WHEREFORE, premises considered, the instant appeal is hereby DENIED. Accordingly, the
assailed Decision dated 21 July 2006 of the Regional Trial Court, Branch 50, 6th Judicial Region,
Bacolod City, in Criminal Case No. 04-26009 is hereby AFFIRMED with MODIFICATIONS.

As modified, all three accused are held solidarily liable to pay the heirs of the victim the amounts of
Php75,000.00 as civil indemnity, Php50,000.00 as moral damages, Php30,000.00 as exemplary
damages and Php25,000.00 as temperate damages. Interest on all damages awarded is imposed at
the rate of 6%) per annum from date of finality of this judgment until fully paid.

SO ORDERED. 8

Dissatisfied with the CA Decision, appellant elevated the case to this Court.

Our Ruling

The appeal is partly meritorious,

The crime of kidnapping was not

satisfactorily established

Kidnapping is defined and punished under Article 267 of the Revised Penal Code (RPC), as
amended by Republic Act (RA) No. 7659. The crime has the following elements:

(1) the accused is a private individual.;

(2) the accused kidnaps or detains another or in any manner deprives the latter of his liberty

(3) the act of detention or kidnapping is illegal; and

(4) in the commission of the offense, any of the following circumstances is present:

(a) the kidnapping or detention lasts for more than three days;

(b) it is committed by simulating public authority:

(c) any serious physical injuries arc inflicted upon the person kidnapped or detained or threats to kill
him are made or;
(d) the person kidnapped or detained is a minor, female or a public official. 9

"The essence of the crime of kidnapping is the actual deprivation of the victim’s liberty coupled with
the intent of the accused to effect it. It includes not only the imprisonment of a person but also the
deprivation of his liberty in whatever form and for whatever length of time." 10

The totality of the prosecution's evidence failed to sufficiently establish the offense of kidnapping in
this case. There was no concrete evidence whatsoever to establish , or from which it can be inferred
that appel1ant and his cohorts intended to actually deprive the victim of his liberty for some time and
for some purpose. There was also no evidence that they have thoroughly planned the kidnapping of
the victim. There was lack of motive to resort in kidnapping the victim for they were bent to kidnap
his friend Truck. The fact alone of waiting for the victim to fall asleep and then and there tying his
hands and feet, based on Norada’s account, was not determinant of intent to actually detain the
victim or deprive his liberty. As such, the trial court was indulging in speculation when it held that the
victim "will either be taken away or simply be kept in the hotel and thereafter ransom will be
demanded from the Canadian Ray Truck for his release."  Courts should not indulge in speculation
11

no matter how strong the guilt of the accused. Hence since the offense of kidnapping was not
sufficiently established, the trial court erred in holding appellant liable for attempted kidnapping.

There is no unlawful aggression on

the part of the victim hence the
justifying circumstance of self-defense
is untenable.

There is no dispute that the victim was killed. Appellant however, invokes the justifying circumstance
of self-defense to exculpate himself. By invoking self-defense, appellant in effect admitted his part in
killing the victim. However, before the plea of self-defense may by appreciated, appellant must prove
by clear and convincing evidence the following indispensable elements: (a) unlawful aggression on
the part of the victim; (b) reasonable necessity of the means employed to prevent or repel it; and (c)
lack of sufficient provocation on the part 9f the appellant.  "In self-defense and defense of strangers,
12

unlawful aggression is a primordial element, a condition sine qua non. If no unlawful aggression
attributed to the victim is established, self-defense and defense of strangers are unavailing because
there would be nothing to repel." 13

The courts below correctly found that appellant failed to discharge the burden of proving unlawful
aggression on the part of the victim. Both the RTC and the CA, held that his version of the event was
not only uncorroborated but crude and clumsy prevarication. We agree that appellant's evidence
relative to unlawful aggression fell far short of being "clear and convincing." His claim of having been
boxed by the victim did not show that he suffered any injury and no allegation on what part of his
body was hit. More importantly, the punching if it was true, did not place the life of appellant in
danger. Thus, appellant's claim of self-defense deserves no merit at all.

Treachery did not attend the killing.

However, we cannot agree that the qualifying circumstance of treachery attended the killing.
According to the trial court, "it was necessary for the accused to subdue [the victim] and they
attempted to perform this act in a treacherous manner, tying up the victim] while he was asleep. [The
victim] however, resisted and this prompted the accused to hit him inflicting serious injuries on his
person that caused his death."  Clearly, this is the only context in which the trial court appreciated
14

the qualifying circumstance of treachery and the appellate court concurred with this finding without
laying any basis or explanation for its concurrence.
Contrary to the findings of the courts below, our review of the evidence shows that the killing of the
victim was not attended by treachery.

"Treachery cannot be presumed [for] the circumstances surrounding the [killing] must be proved as
indubitably as the crime itself."  Treachery is present "when the offender commits any of the crimes
15

against the person, employing means, methods or forms in the execution thereof which tend directly
and specially to ensure its execution, without risk to himself arising from the defense which the
offended party might make."  "To constitute treachery, two conditions must concur: (1) the
16

employment of means, methods or manner of execution that would ensure the offender's safety from
any defense or retaliatory act on the part of the offended party; and (2) the offender's deliberate or
conscious choice of the means, method or manner of execution." 17

Indeed, the victim was struck on the head by Norada with a piece of wood which resulted to his
death. However, the records is bereft of any evidence that appellant and his co-accused made some
preparation to kill the victim in such a manner as to ensure the execution of the crime or to make it
impossible or hard for the victim to defend himself.  In People v. Antonio,  it was held that "[i]t is not
18 19

only the sudden attack that qualifies a killing into murder. There must be a conscious and deliberate
adoption of the mode of attack for a specific purpose." Similarly, in People v. Catbagan,  the Court
20

ruled that "[t]reachery cannot be considered when there is no evidence that the accused had
resolved to commit the crime prior to the moment of the killing or that the death of the victim was the
result of premeditation, calculation or reflection." In the present case, the mode or manner of the
attack on the victim did not appear to have been consciously and deliberately adopted.

Conspiracy was established among

the accused.

As regards the matter of conspiracy, we note that the appellate court did not make any discussion or
a finding of fact on the presence of conspiracy among the accused despite holding them solidarily
liable for the payment of damages. However, we take this' opportunity to tackle this issue following
the principle that an appeal throws the whole case wide open for review.

We find that conspiracy in killing the victim was duly established. "Conspiracy may be inferred from
the acts of the accused before, during and after the commission of the crime suggesting concerted
action and unity of purpose among them."  In the case at bar, the evidence showed that appellant
21

did not prevent Norada from striking the head of the victim with the piece of wood. When the latter
fell unconscious with blood oozing from his head, appellant even helped in wrapping the body with a
bedsheet and loaded him on the Suzuki multi-cab. To completely end the life of the victim, they did
not bring the victim to the hospital despite his still being alive but instead, dumped the body in a
sugarcane field at Villa Angela Subdivision. These acts of appellant during and after the killing
indubitably show that he acted in concert for a joint purpose and a community of interest with his co-
accused in killing the victim. Thus applying the basic principle in conspiracy that "the act of one is the
act of all," appellant is guilty as a coconspirator and regardless of his participation, is liable as co-
principal.
22

No abuse of superior strength.

The aggravating circumstance of abuse of superior strength is "present if the accused purposely
uses excessive force out of proportion to the means of defense available to the person attacked, or if
there is notorious inequality of forces between the victim and aggressor, and the latter takes
advantage of superior strength.  However, as none of the prosecution witnesses saw how the killing
23

was perpetrated, abuse of superior strength cannot be appreciated in this case.

The crime committed was homicide.

Considering that none of the circumstances alleged in the information, i.e., treachery and abuse of
superior strength was proven during the trial, the same cannot be appreciated to qualify the killing to
murder. Appellant can only be held liable for homicide. Under .Article 249 of the RPC, the penalty
prescribed for the crime of homicide is reclusion temporal. In view of the absence of any mitigating
circumstance and applying the Indeterminate Sentence Law, the maximum of the sentence should
be within the range of reclusion temporal in its medium period which has a duration of fourteen (14)
years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the
minimum should be within the range of prision mayor which has a duration of six (6) years and one
(1) day to twelve (12) years. Thus, appellant should suffer an indeterminate prison term of ten (10)
years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum.

Anent appellant's civil liability, the Court finds a need to modify the same to conform to recent
jurisprudence.  The court modifies awarded amount of ₱75,000.00 as civil indemnity by the CA by
24

reducing it to ₱50,000.00. Anent the award of moral damages, the CA correctly imposed the amount
of ₱50,000.00. The award of ₱30,000.00 as exemplary damages is deleted in view of the failure of
the prosecution to prove that the killing was attended by treachery and abuse of superior strength.

With respect to actual damages, the parties stipulated the amount of ₱40,000.00 for the funeral,
burial and other incidental expenses and dispensed with the presentation of proof thereof: However
prevailing jurisprudence dictates an award of ₱50,000.00 as temperate damages, in lieu of actual
damages, when no documentary evidence of burial or funeral expenses is presented in
court.  Hence, we award ₱50,000.00 as temperate damages in lieu of actual damages.
25

As to the deletion of the indemnity for loss of earning capacity by the CA, we restore the award by
the RTC of the sum of ₱1,950.967.26 as unearned income as appearing from the Pay
Slip  submitted in evidence which the CA plainly overlooked. The figure was arrived at based on the
26

net earning capacity of the victim, to wit:

Net earning 2/3 x (80-age of the victim at the time of death)

capacity = x (Gross Annual Income less the Reasonable
and Necessary Living Expenses 27

The victim was 42 years old at the time of his death. His annual gross income was ₱154,044.00
computed based on his monthly income of ₱12,837.00.  His necessary living expenses is deemed to
1âwphi1

be 50% of his gross income. His life expectancy is assumed to be 2/3 of age 80 less 42, his age
when he was killed. Thus using the above formula, the indemnity for loss of earning capacity of the
victim is ₱1,950,967.26.

WHEREFORE, the appeal is PARTLYGRANTED. The Decision dated January 14, 2015 of the
Court of Appeals in CA-G.R. CR HC No. 00686 is hereby VACATED and SETASIDE. A new one is
entered as follows:

1) appellant Eugene Villanueva y Canales is hereby found GUILTY of the crime of Homicide

and sentenced to an indeterminate penalty of ten (10) years of prision mayor, as minimum,
to seventeen (17) years and four (4) months of reclusion temporal, as maximum.

2) appellant is ordered to pay the heirs of the victim the following amounts:
 a) ₱50,000.00 as civil indemnity;

b) ₱50,000.00 as moral damages;

c) ₱50,000.00 as temperate damages; and,

d) ₱1,950,967.26 as indemnity for loss of earning capacity.

In conformity with current policy, we impose interest on all the monetary awards for damages at the
rate of 6% perannum from date of finality of this Decision until fully paid.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

NOEL GIMENEZ TIJAM

Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
Designated as additional member per October 18, 2017 raffle vice J, Jardeleza who recused
from the case due to prior participation as Solicitor General.

 CA rollo, pp. 213-23 i; penned by Associcite Justice Marie Christine Azcarraga-Jacob and
1

concurred in by Associate Justices Ramon Paul L. Hernando and Ma. Luis:J C. Quijano-
Padilla.
2
 Id. at l5-38; penned by Judge Roberto S. Chiongson.

3
 Id. at 18.

4
 Id. at 21-22.

5
 Id. at 23-24.

6
 Id. at 36-37.

7
 Id. at 37-38.

8
 Id. at 230.

9
 See People v. Mamantak, 582 Phil. 294, 302 (2008).

10
 Id. at 103.

11
 CA rollo, p, 35.

12
 See REVISED PENAL CODE, Article 11, Section l.

13
 People v, Del Castillo, 679 Phil. 233, 250(2012).

14
 CA rollo, p. 35.

15
 People v. Nueva, 591 Phil. 43l, 446 (2008).

16
 REVISED PFNAL CODE, Article 14, paragraph 16.

17
 People v. Garcia, 577 Phil. 483, 503 (2008).

18
 See People v. Pat, Nitcha, 3 l 0 Phil. 287, 303-304 (1995),

19
 390 Phil. 989, 1017 (2000).

20
 467 Phil. 1044, 1081-1082 (2004).

21
 People v. Robelo, 699 Phil. 392, 401 (2012).

22
 Id.

23
 People v. Del Castillo, supra note 13 at 255.

24
 People v. Jugueta, G.R. No. 202124, April 5, 2016, 788 SCRA .13 l, 386-337.

25
 Id. at 388.

26
 Records, p. 154.
  People v. Garcia, supra note 17 at 508.
27

G.R. No. 208441

PEOPLE OF THE PHILIPPIES, Plaintiff-Appellee

vs.
ZENAIDA FABRO or ZENAIDA MANALASTAS y VIÑEGAS, Accused-Appellant

DECISION

TIJAM, J.:

This is an appeal from the Decision  dated February 19, 2013 of the Court of Appeals (CA) in CA-
1

G.R. CR-H.C. No. 04598, affirming in toto the Decision dated July 16, 2010 of the Regional Trial
Court (RTC),  Branch 45 of San Fernando, Pampanga, in Criminal Case No. 1204, which found
2

accused-appellant Zenaida Fabro or Zenaida Viñegas Manalastas guilty of Serious Illegal Detention.

The Antecedents

In an Information dated March 6, 2006, accused-appellant was charged with Serious Illegal
Detention under Article 267  of the Revised Penal Code (RPC), in relation to Republic Act No.
3

7610,  committed as follows:

4

That on or about the 2nd day of March 2006, in the municipality of YYY, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, ZENAIDA FABRO or ZENAIDA V.
MANALASTAS, did then and there willfully, unlawfully and feloniously and by force take [AAA],  9 5

years old, minor, while the latter is in front of the XXX Elementary School, YYY whom the said
accused detained and kept in the house of Brgy. Capt. Fabro, brother of the accused in Brgy. Villa
Viniegas, Llanera, Nueva Ecija from March 2 to March 5, 2006 or a period of four (4) days under
restraint and against her will.

Contrary to law.

When arraigned, accused-appellant pleaded "not guilty."

During trial, the prosecution presented the testimonies of AAA and SPO1 Elmer Guevarra who
received the report of AAA's abduction. Accused-appellant was the lone witness for the defense.

The prosecution sought to establish that on March 2, 2006, 9-year old AAA was attending her Grade
IV class at the XXX School in YYY, when accused-appellant suddenly arrived supposedly to fetch
her. Since accused-appellant was AAA's aunt residing just next to AAA's house, the teacher allowed
accused-appellant to take AAA. However, instead of bringing AAA kept AAA in Nueva Ecija despite
the latter's plea to go home. She refused to let AAA go even after AAA's parents called her via
cellular phone begging her to release their daughter.6

AAA's parents had reported the abduction to the police. After receiving information that accused-
appellant might go to her brother's house in Barangay Villa Viniegas, Nueva Ecija, the police
organized a team and monitored said house. On March 5, 2006, police operatives, accompanied by
AAA's parents, rescued AAA and apprehended the accused-appellant at her brother's house. 7
Denying the charge, accused-appellant declared that she could not have committed the crime
because she loved AAA whom she had known since 1999 and who used to frequent her house to
sleep, eat, and watch television with her siblings. She claimed that she brought AAA to Nueva Ecija
on March 2, 2006 with the consent of AAA's mother and teacher. She explained that she had
intended to bring AAA along to the Barangay Captain to prove that her husband had taken her
luggage and some documents, given that AAA used to clean their room. The Barangay Captain was
not around so they proceeded to Nueva Ecija after AAA requested to join her. After two days in
Nueva Ecija, or on March 5, 2006, she brought AAA to her brother's house where she was arrested. 8

The RTC convicted accused-appellant of Serious Illegal Detention, disposing as follows:

WHEREFORE, premises considered, the Court finds the accused ZENAIDA FABRO or ZENAIDA
VIÑEGAS MANALASTAS GUILTY beyond reasonable doubt of Serious Illegal Detention penalized
under Article 267 of the Revised Penal Code and hereby sentences the said accused to suffer the
penalty of RECLUSION PERPETUA, together with all the accessory penalties provided for by law
and to pay the private complainant, AAA, thru her father BBB, the sum of one hundred thousand
pesos (₱l00,000.00) as moral damages.

The Jailer is hereby ordered to make the proper reduction of the period during which the accused
was under preventive custody by reason of this case in accordance with law.

SO ORDERED.

Accused-appellant elevated the case to the CA, arguing that the prosecution failed to prove her guilt
beyond reasonable doubt, and faulting the trial court for relying on the prosecution's version of the
events.  The CA subsequently rendered the assailed Decision affirming the RTC's Decision in
9

toto. In the present appeal, accused-appellant further asserts that the prosecution failed to prove her
intent to detain the victim. 10

Our Ruling

The appeal lacks merit.

The elements of Kidnapping and Serious Illegal Detention under Article 267 of the Revised Penal
Code, as amended, are: (1) the offender is a private individual; (2) he kidnaps or detains another or
in any other manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be
illegal; and (4) in the commission of the offense, any of the following circumstances is present: (a)
the kidnapping or detention lasts for more than three days; or (b) it is committed by simulating public
authority; or (c) serious physical injuries are inflicted upon the person kidnapped or detained or
threats to kill him are made; or (d) the person kidnapped or detained is a minor, female, or a public
officer. If the victim of kidnapping and serious illegal detention is a minor, the duration of his
detention is immaterial. 11

There is no dispute that accused-appellant is a private individual and that she took AAA from her
school on March 2, 2006, brought her to Nueva Ecija and kept her there until she was arrested on
March 5, 2006. 1avvphi1

That AAA was deprived of her liberty is clear from her testimony that despite her pleas for accused-
appellant to let her go home, the latter refused, thus:

Q: How many days did you stay in that house in Nueva Ecija, AAA?
A: Four, Ma'am.

Q: And, in those four days did you ask Tita Zeny to let you go home?

A: Yes Ma'am.

Q: And what did Tita Zeny tell you?

A: "Huwag muna daw po."

Q: At that time AAA, did you want to go home already in those four days?

A: Yes Ma'am.

Q: And do you know if Tita Zeny called your father or your mother thru cellphone in those four days?

A: Yes Ma'am.

Q: Whom did Tita Zeny call, your father or your mother?

A: "Tatay ko."

Q: How did you know that Tita Zeny called your father?

A: "Sinabi pong kaklase ko na kinipnap (sic) po ako."

Q: AAA, you said that Tita Zeny called your father. Were you able to talk to your father on the
cellphone?

A: No, Ma'am. "Nakausap ko po ang nanay ko."

Q: Were you able to talk to your mother and that was thru the cellphone that was being used by Tita
Zeny?

A: Yes ma'am.

Q: And, what did you tell your mother?

A: "Sya po ang sumabi."

Q: What did your mother tell you?

A: "Sabi po iuwi na niya ako."

Q: Is that the only conversation that you had with your mother?

A: "Ayaw po ako iuwi ni Tita Zeny." 12

x x x xxx
Q: Did you again ask her to go home'!

A: Yes Ma'am.

Q: What did she tell you?

A: "Huwag muna daw po."

Q: During those four days AAA, did you cry?

A: Yes, Ma'am.

Q: Why did you cry?

A: "Ayaw po ako iuwi."  (Emphasis supplied.)

13

Accused-appellant, however, contends that AAA had not been deprived of liberty while in her
custody. She argues that the records are bereft of any indication that AAA was physically restrained,
or was under her constant control, or was ever prevented from going home. She claims that during
the period she had custody of AAA, the latter was free to interact with third persons and
communicate with her relatives, and was well taken care of. 14

The argument fails. The prevailing jurisprudence on kidnapping and illegal detention is that the
curtailment of the victim's liberty need not involve any physical restraint upon the victim's
person.  For kidnapping to exist, it is not necessary that the offender kept the victim in an enclosure
15

or treated him harshly. 16

In People v. Bisda,  the Court upheld the conviction of kidnapping for ransom even though the
17

abducted five-year old child was, during her detention, free to roam around the place of detention, to
practice on her drawing and to watch television, and was regularly fed and bathed. Citing United
States v. McCabe,  the Court stated that "to accept a child's desire for food, comfort as the type of
18

will or consent contemplated in the context of kidnapping would render the concept meaningless."
Should the child even want to escape, said the Court, she could not do so all by herself given her
age; she was under the control of her abductors and was merely waiting and hoping that she would
be brought home or that her parents would fetch her.

Nine-year old AAA was brought by accused-appellant to a place unfamiliar to her.  In fact, she
19

learned that the name of the place was Nueva Ecija only after she was rescued. 20

Leaving a child in a place from which he did not know the way home, even if he had the freedom to
roam around the place of detention, would still amount to deprivation of liberty. Under such a
situation, the child's freedom remains at the mercy and control of the abductor. 21

The RTC, thus, correctly held that even in the absence of evidence that AAA was locked up, she
was still deprived of her liberty because considering her minority and the distance between her home
and Nueva Ecija, she could not possibly go back home to YYY without accused-appellant's
assistance. 22

The RTC rightly invoked the Court's pronouncement in People v. Acosta: 23

The next question to be determined is whether or not element of restraint is present as to constitute
the crime of kidnapping with which the appellants are charged. On this point the trial court made this
observation: "While it is true that the boy was playing while he was in the house at Murphy on April
6, 1956, the fact remains that he was under the control of the accused Consolacion Bravo who left
him there, as he could not leave that house until she shall have returned for him. Because of his
tender age and the fact that he did not know the way back home, he was then and there in a way
deprived of his liberty. It is like putting him in a prison or in an asylum where he may have freedom of
locomotion but not the freedom to leave it at will. The same thing can be said of his stay in the house
at Tondo, where he was left by her on April 7, 1956." In addition, we may say that because the boy
was of tender age and he was warned not to leave until her return by his godmother, he was
practically a captive in the sense that he could not leave because of his fear to violate such
instruction. (Emphasis supplied.)

Accused-appellant also questions AAA's credibility, pointing out that while AAA claimed to have
been taken by force in her Sinumpaang Salaysay,  she subsequently testified  in court that she
24 25

voluntarily went with accused-appellant. 26

The Court is not persuaded.

It is oft-repeated that affidavits are usually abbreviated and inaccurate. Oftentimes, an affidavit is
incomplete, resulting in its seeming contradiction with the declarant's testimony in court. Generally,
the affiant is asked standard questions, coupled with ready suggestions intended to elicit answers,
that later tum out not to be wholly descriptive of the series of events as the affiant knows them.
Worse, the process of affidavit-taking may sometimes amount to putting words into the affiant's
mouth, thus, allowing the whole statement to be taken out of context. 27

Discrepancies between the statements of the affiant in his affidavit and those made by him on the
witness stand do not necessarily discredit him since ex parte affidavits are generally
incomplete.  Reiterating this principle, the Court, in the recently decided case of People v.
28

Dayaday,  declared:
29

xxx [T]his Court had consistently ruled that the alleged inconsistencies between the testimony of a
witness in open court and his sworn statement before the investigators are not fatal defects to justify
a reversal of judgment. Such discrepancies do not necessarily discredit the witness since ex
parte affidavits are almost always incomplete. A sworn statement or an affidavit does not purport to
contain a complete compendium of the details of the event narrated by the affiant. Sworn statements
taken ex parte are generally considered to be inferior to the testimony given in open court.

xxxx

The discrepancies in [the witness]'s testimony do not damage the essential integrity of the
prosecution's evidence in its material whole. Instead, the discrepancies only erase suspicion that the
testimony was rehearsed or concocted. These honest inconsistencies serve to strengthen rather
than destroy [the witness]'s credibility.

We also note that the force allegedly employed by the accused-appellant, as stated in
AAA's Sinumpaang Salaysay, referred to the moment accused-appellant made AAA board a tricycle
after the latter refused to sign a document from the accused-appellant. This obviously took place
when they were already outside the school premises. On the other hand, when AAA testified to
voluntarily going with accused-appellant, it was in reference to the time accused-appellant came to
her classroom to take her. We are, thus, disinclined to conclude that there exists a glaring and
irreconcilable inconsistency in AAA's declarations that would completely discredit her testimony.
In any event, the essence of the crime of kidnapping is the actual deprivation of the victim's liberty,
coupled with indubitable proof of the intent of the accused to effect the same.  In this case, AAA has
30

clearly and consistently declared that accused-appellant kept her in Nueva Ecija despite her
repeated plea for accused-appellant to bring her home.

In People v. Bisda,  this Court held:

31

Appellants must come to grips with case law that testimonies of child victims are given full weight
and credit. The testimony of children of sound mind is likewise to be more correct and truthful than
that of older persons. In People vs. Alba, this Court ruled that children of sound mind are likely to be
more observant of incidents which take place within their view than older persons, and their
testimonies are likely more correct in detail than that of older persons. Angela was barely six years
old when she testified. Considering her tender years, innocent and guileless, it is incredible that
Angela would testify falsely that the appellants took her from the school through threats and detained
her in the "dirty house" for five days. In People v. Dela Cruz, this Court also ruled that ample margin
of error and understanding should be accorded to young witnesses who, much more than adults,
would be gripped with tension due to the novelty and the experience in testifying before the trial
court.

Furthermore, the basic rule is that the Supreme Court accords great respect and even finality to the
findings of credibility of the trial court, more so if the same were affirmed by the CA, as in this
case.  We find no reason to depart from this rule.
32

As consistently adhered to by this Court, the matter of assigning values to declarations on the
witness stand is best and most competently performed by the trial judge, who had the unmatched
opportunity to observe the witnesses and to assess their credibility by the various indicia available
but not reflected on the record.  The trial court has the singular opportunity to observe the witnesses
33

through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted
assertion, or the sudden pallor of a discovered lie, or the tremulous mutter of a reluctant answer, or
the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the
hesitation, the sincere, or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh,
the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and
mien. 34

Thus, when the credibility of a witness is in issue, the findings of fact of the trial court, its calibration
of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded high respect if not conclusive effect. This is
more true if such findings were affirmed by the appellate court, since it is settled that when the trial
court's findings have been affirmed by the appellate court, said findings are generally binding upon
this Court. Without any clear showing that the trial court and the appellate court overlooked,
misunderstood or misapplied some facts or circumstances of weight and substance, the rule should
not be disturbed. 35

It bears stressing, too, that no improper motive has been imputed against AAA or her parents in filing
the case against accused-appellant.  In fact, accused-appellant testified that she was in good terms
1âwphi1

with AAA's family before the incident and that AAA's family was, in fact, "on (her) side because of the
maltreatment of (her) other in-laws." 36

It is settled that where there is no evidence to show any dubious or improper motive why a
prosecution witness should bear false witness against the accused or falsely implicate him in a
heinous crime, the testimony is worthy of full faith and credit. 37
The Court cannot accept accused-appellant's contention that AAA was not deprived of liberty based
on the RTC's supposed observation that she gave in to AAA's request to go home after AAA
cried. First of all, the RTC's observation  was prefaced by a statement that accused-appellant "did
38

not want (AAA) to go home," which explains why AAA had been crying. Thus, the RTC's observation
reinforces rather than diminishes accused-appellant's culpability for detaining the child against her
will. Secondly, a. perusal of AAA's testimony, upon which the RTC ostensibly based its observation,
showed that accused-appellant did not accede to AAA's request to be returned home; she merely
brought the child to her brother's house in Villa Viniegas where she was subsequently arrested by
police operatives.  Finally, there is nothing in accused-appellant's testimony that showed her intent
39

to return AAA to her home.

That accused-appellant had no justification whatsoever to detain AAA is undeniable.

AAA's parents had not given their consent for accused-appellant to take and keep their child. This is
evident from the fact that they reported accused-appellant's taking of AAA to the police on the same
day she was removed from her school.  It is likewise clear from the plea of AAA's mother, via cellular
40

phone, for accused-appellant to bring AAA home.  We are, thus, hard-pressed to believe accused-
41

appellant's claim, uncorroborated as it is, that AAA's mother had given her consent for accused-
appellant to take her child to Nueva Ecija.

Furthermore, as the CA correctly held, neither the permission given by AAA's teacher nor AAA's
supposed agreement to go with accused-appellant, justified AAA's detention.

Besides, AAA was just nine (9) years old at the time of her detention, as evidenced by her Certificate
of Live Birth.  Thus, accused-appellant's claim that AAA voluntarily went with her to Nueva Ecija
42

cannot hold water, as AAA was not in a position to give consent.

Where the victim is a minor, lack of consent is presumed. She is incompetent to assent to seizure
and illegal detention. The consent of such child could place accused-appellant in no better position
than if the act had been done against her will. 43

The Court also notes AAA's testimony that she had been deceived by accused-appellant to go with
her. Both on direct and cross-examination, AAA testified that accused-appellant told her that they
would be going to the barangay captain as her husband had taken her suitcase, but they did not
proceed to the barangay captain and accused-appellant took her instead to Nueva Ecija. 44

It has been held that the fact that the victim voluntarily went with the accused did not remove the
element of deprivation of liberty, because the victim went with the accused on a false inducement.
What is controlling is the act of the accused in detaining the victim against his or her will after the
offender is able to take the victim in his custody. 45

In this case, the inscrutable fact is that accused-appellant detained AAA despite the latter's repeated
plea to be returned home. 1âwphi1

Accused-appellant's defense of denial, uncorroborated by testimony or other evidence, cannot be

sustained in the face of AAA's categorical and consistent testimony that accused-appellant rejected
her pleas to be brought home. Denial is a self-serving negative evidence, which cannot be given
greater weight than that of the declaration of a credible witness who testifies on affirmative matters.
Like alibi, denial is inherently a weak defense, which cannot prevail over the positive and credible
testimonies of prosecution witnesses who, as in this case, were not shown to have any ill-motive to
testify against accused-appellant. 46
Accused-appellant asserts that while the prosecution attempted to show that she had planned to
poison AAA, and that she had made demands for a PhP2 Million ransom and for AAA's father to kill
her estranged husband (his sibling) as conditions for AAA's release, the RTC found that such
purpose, allegedly heard by AAA from a telephone conversation, had not been sufficiently
substantiated, let alone alleged in the Information. She argues that this negates her intent to kidnap
or illegally detain the victim.

The argument deserves scant consideration.

Suffice it to state that the charge against accused-appellant was for kidnapping of a minor,
committed by taking the victim from her school and detaining her against her will. In kidnapping, the
specific intent is to deprive the victim of his/her liberty.  If the victim is a child, it also includes the
47

intention of the accused to deprive the parents with the custody of the child.  In this case, the
48

prosecution has established beyond reasonable doubt that accused-appellant intended to deprive
AAA of her liberty, and her parents, with the custody of their daughter.

The Court notes the RTC's finding that while accused-appellant sought to excuse her actions by "her
desire to be loved" and "to accomplish some family concerns," her detention of AAA was not
justifiable as it already prejudiced a minor.  Indeed, as the RTC pointed out, despite the alleged
49

closeness of AAA's family to accused-appellant and their relationship by affinity, AAA's family still
filed and pursued a serious charge against accused-appellant. 50

In fine, considering that the elements of Serious Illegal" Detention have been sufficiently established
in this case, there is no cogent reason for the Court to reverse accused-appellant's conviction for
said offense.

Article 267 of the RPC prescribes the penalty of reclusion perpetua to death for Serious Illegal
Detention. Absent any aggravating or modifying circumstance, the RTC, as affirmed by the CA,
correctly imposed the penalty of reclusion perpetua, pursuant to Article 63  of the RPC.
51 52

In line with prevailing jurisprudence,  the Court reduces the award of moral damages from
53

PhPl00,000 to PhP75,000, and directs accused-appellant to additionally pay AAA a civil indemnity of
PhP75,000 and exemplary damages of PhP75,000. The civil indemnity and damages are subject to
interest at the rate of six percent per annum from the finality of this Decision until fully paid.

The moral damages awarded by the RTC, as affirmed by the CA, were made payable to AAA
through her father because of her minority. Considering that AAA is no longer a minor, the civil
indemnity and damages shall be paid directly to AAA.

WHEREFORE, the Court of Appeals' Decision dated February 19, 2013 in CA-G.R. CR-H.C. No.
04598 is AFFIRMED with the following MODIFICATIONS: (a) the award for moral damages is
reduced to PhP75,000; (b) accused-appellant is further ordered to pay a civil indemnity of
PhP75,000 and exemplary damages of PhP75,000; (c) the civil indemnity, moral damages and
exemplary damages so awarded shall be paid by accused-appellant directly to AAA, all with interest
at the rate of six percent per annum from the time of finality of this Decision until fully paid.

SO ORDERED.

NOEL GIMENEZ TIJAM

Associate Justice
WE CONCUR:

PRESBITERO J. VELASCO, JR.

Chief Justice
Chairperson

ANTONIO T. CARPIO LUCAS P. BERSAMIN

Associate Justice Associate Justice

ANDRES B. REYES, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation,
I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

 Designated additional Member per Raffle dated February 6, 2017, vice Associate Justice

*

Francis H. Jardeleza.

 Penned by Associate Justice Samuel H. Gaerlan, and concurred in by Associate Justices

1

RebeccaL. De Guia-Salvador and Apolinario D. Bruselas, Jr.; Rollo, pp. 2-8.

2
 Penned by Presiding Judge Adelaida Ala-Medma; CA rollo, pp. 7-12.

3
 Article 267 of the RPC as amended by Republic Act No. 7659 reads:

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

1. If the kidnapping or detention shall have lasted more than three days.
 2. If it shall have been committed simulating public authority.

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

4. If the person kidnapped 0r detained shall be a minor, except when the

accused is any of the parents, female or a public officer.

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

When the victim is killed or dies as a consequence of the detention or is

raped, or is subjected to torture or dehumanizing acts, the maximum penalty
shall be imposed.

The word "female" in paragraph 1(4) of Article 267 of the Revised Penal Code refers
to the gender of the victim and not of the offender. (People v. Bisda, G.R. 140895,
July 17, 2003.)

 Known as the "Special Protection of Children Against Abuse, Exploitation and

4

Discrimination Act."

5
 The identity of the victim and any information which could establish or compromise her
identity are withheld in keeping with the policy set forth in Republic Act No. 7610 (An Act
Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation
and Discrimination, and for Other Purposes), Republic Act No. 9262 (An Act Defining
Violence Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes), and Section 40 of A.M. No. 04-10-
11-SC, known as the Rule on Violence Against Women and Their Children, effective
November 5, 2004, and in view of this Court's pronouncement in People v.
Cabalquinto, G.R. No. 167693, September 19, 2006. See People v. De Guzman, G.R. No.
214502, November 25, 2015.

6
 Rollo, pp. 3-4.

7
 Id. at 4.

8
 Rollo, pp. 4-5.

9
 CA rollo, p. 27.

10
 Rollo, p. 23.

11
 People v. Pepino, G.R. No. 174471, January 12, 2016.

12
 Rollo, pp. 6-7; Citing TSN, January 12, 2007. pp. 16-17.

13
 Id. at 7; Citing TSN, January 12, 2007, pp. 18-19.
  Id. at 26-27; Accused-appellant's Supplemental Brief, pp. 4-5.
14

 Astorga v. People, G.R. No. 154130, October 1, 2003.

15

 People v. Baluya, G.R. No. 181822, April 13, 2011.

16

 People v. Bisda, G.R. No. 140895, July 17, 2003.

17

 812 F. 2d. 1660 (1987).

18

 CA rollo, p. 11.
19

 Ibid.
20

 People v. Baluya, supra, note 16.

21

 Id. at l0-11.
22

 People v. Acosta, G.R. No. L-11954. March 24, 1960.

23

 AAA's Sinumpaang Salaysay, in part, states:

24

2. T -AAA, ano ang nanyari sa iyo noong Marso 2, 2006?

S - Habang nasa school po aka dumating si Tita Zeny (Zenaida V. Manalastas)

hinawakan niya aka sa kamay at may pinapipirma sa akin. Hindi ko po pinirmahan at
sapilitan niya akong sinakay sa tricycle. Sinabi niya sa akin sandali fang at samahan
ko daw siya. At sumakay na kami sa tricycle papuntang ZZZ, YYY. Hindi ko na po
naisuot and aking tsinelas dahil sa paghatak niya sa akin.

TSN, January 12, 2007, p. 11.

25

xxxx

Q: Now, AAA, when you were in school and your Tita Zeny came, how did you leave
the school AAA?

A: "Kusa po akong sinama niya. Niloko po niya aka."

xxxx

 Brief for the Accused-Appellant, pp. 5-6; CA rollo, pp. 31-32.

26

 Kummer v. People, G.R. No. 174461, September ll, 2013.

27

Ibid.
28

 People v. Dayaday, G.R. No. 213224, January 16, 2017, citing People v. Yanson, G.R.

29

No. 179195, October 3, 2011.

  People v. De Guzman, G.R. No. 214502, November 25, 2015.
30

 Supra, note 17, citing People v. Malas, G.R. Nos. 88006-08, March 2, 1998, People v.

31

Alba, G.R. No. 131858, April 14, 1999, and People v. Dela Cruz, G.R. No. 116726 July 28,
1997.

 Kummer": People, supra, note 27.

32

 People v. Basao, G.R. No. 189820, October 10, 2012.

33

 People v. Jacalne, G.R. No. 168552, October 3, 2011

34

 People v. Basao, supra, note 33.

35

 TSN, August 8, 2008, pp. 6 & 9.

36

 Peoplev. Gregorio, G.R. No. 194235, June 8, 2016.

37

 CA rollo, p. 8.
38

 TSN, January 12, 2007, p. 19.

39

 Id. at 4; CA rollo, p. 8.
40

 Id. at 10.
41

 Rollo, p. 7.
42

 People v. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA 454.
41

 TSN, January 12, 2007, pp. 11 & 12; TSN, March 9, 2007, p. 6.
44

 People v. Siangco, G.R. No. 186472, July 5, 2010; People v. Deduyo. G.R. No. 138456,

45

October 23, 2003.

 People v. Jacalne, supra note 34; People v. Marquez, G.R. No. 181440, April 13,

46

2011; People v. De Guzman supra note 30.

 People v. Delim, G.R. No. 142773, January 28, 2003.

47

 People v. Baluya, supra note 16; People v. Acbangin, G.R. No. 117216, August 9, 2000.

48

 CA rollo, p. 11; Citing TSN, August 8, 2008, p. 10.

49

 Ibid.
50

 Article 63. Rules for the application of indivisible penalties.

51

xxxx
 In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:

xxxx

2. When there are neither mitigating nor aggravating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.

xxxx

 People v. Jacalne, supra note 34.

52

 People v. Jugueta, G.R. No. 202124, April 5, 2016.

53

G.R. No. 222965

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
USTADZ IBRAHIM ALI y KALIM, ABDUL HASSAN AND TWO OTHER COMPANIONS
IDENTIFED ONLY AS "JUL" AND "AMAT," Accused,
USTADZ IBRAHIM ALI y KALIM, Accused-Appellant.

DECISION

MARTIRES, J.:

This is an appeal from the 30 April 2015 Decision  of the Court of Appeals (CA) in CA-G.R. CR-HC
1

No. 00473-MIN, which affirmed the 30 July 1999 Decision  of the Regional Trial Court, Branch 16,
2

Zamboanga City (RTC), in Criminal Case No. 15599, finding accused Ustadz Ibrahim
Ali y Kalim (Ali) guilty beyond reasonable doubt of the crime of Kidnapping and Serious Illegal
Detention, defined and penalized under Article 267 of the Revised Penal Code (RPC).

THE FACTS

In an Information dated 17 December 1998, Ali, together with Abdul Hassan (Hassan), and

individuals identified as "Jul" and Amat," were charged with the crime of kidnapping and serious
illegal detention under Article 267 of the RPC. Only Ali was the subject of the criminal proceedings
because his co-accused Hassan, Jul, and Amat remain at large. The accusatory portion of the
information reads:

That on or about December 14, 1998, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above named accused being then armed with high powered
firearm, conspiring and confederating together, mutually aiding and assisting with one another, by
means of force and intimidation did then and there willfully, unlawfully and feloniously, KIDNAP the
person of CHRISTIA OLIZ y EUCOGCO, a young woman, 19 years old, particularly on the occasion
when she was together with her employer named Antonio Yu Lim Bo and the latter's wife and
daughter, on board a Blue Nissan Vehicle then driven by one Rene Igno who was ordered by the
herein accused to stop said vehicle somewhere at the vicinity of EAAB at Sta. Maria Road, this City,
and thereafter through intimidation, commandeered and drove said vehicle with all its occupants
aboard towards San Roque and finally to the area of Pitogo beach with the clear intention on the part
of the accused to extort ransom money from said victim or other person; however, when victim
Christia Oliz alighted from the vehicle and was walking towards the direction of Pitogo beach she
was able to run away and with the timely assistance of some residents thereat as well as the arrival
of the police authorities, prompted all the accused to escape except accused Ustadz Ibrahim Ali y
Kalim who was arrested thus briefly depriving the liberty of said victim against her will; furthermore,
the commission of said crime has been attended by the aggravating circumstance of NIGHT TIME
AND USE OF MOTOR VEHICLE. 3

During his arraignment, Ali, duly assisted by counsel, pleaded "Not Guilty." 4

Evidence for the Prosecution

The prosecution presented six (6) witnesses, namely: Senior Police Officer 2 Salvador F. Arcillas,
Police Inspector Jesus Belarga, private complainant Christia Oliz (Oliz), Police Inspector Jose
Bayani Gucela, Mario C. Agarte, Police Officer 3 Bernardino Bayot. Their combined testimonies
tended to establish the following:

On 14 December 1998, at around 7:30 P.M., Antonio Lim (Antonio), Mary Lim (Mary), and Cherry
Lim (Cherry) left their family-owned grocery and were on their way to their house in Pasonanca,
Zamboanga City, on board a Nissan vehicle. With them were their driver Rene Igno (Jgno) and Oliz,
their helper. 5

When they were near Edwin Andrews Airbase (EAAB) along Sta. Maria Road, Igno stopped the car
to avoid bumping into a motorcycle with three persons on board. The three men, later identified as
Ali, Hassan, and Amat, approached the Nissan vehicle and told the passengers that they were
policemen.  They ordered Antonio and Igno to transfer to the back of the vehicle and sit with Oliz,
6

Mary, and Cherry. The passengers were told that they would be brought to the police station on a tip
that they were transporting contraband goods. Thereafter, the three armed men boarded the Nissan
vehicle with Amat in the driver's seat, Ali beside him, and Hassan at the back with the other
passengers. Once inside, Ali instructed Hassan to handcuff Igno and Antonio. 7

Amat did not stop when they reached the Sta. Maria police station but kept on driving. Due to the
buildup of traffic at the intersection after the Sta. Maria police station, Mary was able to escape her
captors by jumping out of the vehicle. 8

Amat continued to drive towards Pitogo and then veered towards the beach. There, the occupants
were ordered to alight from the vehicle. Oliz was able to escape when she saw a woman walking
nearby because only Antonio, Cherry, and Igno were guarded. She then told the woman that her
employer was being kidnapped. 9

Oliz was then accompanied to a nearby house where they contacted the authorities. Before the
police arrived, Oliz heard a commotion outside and saw bystanders mauling Ali. Oliz told the people
around that he was their abductor. When the police arrived, Ali was turned over to the authorities
who brought him to the police station together with Oliz. 10

Evidence for the Defense

The defense presented four (4) witnesses, namely: Ali's sister Nauda Ali (Nauda), Ali's wife Rahima
Saulan (Rahima), Ali's cousin Siddik Alfad Abubakar (Siddik), and the accused himself. Their
testimonies sought to prove the following:
On 14 December 1998, Ali, Rahima, and Nauda left Manalipa to proceed to Sinunuc and stay in
Siddik's house before going home to Pagadian City. On their way to Sinunuc, they parted ways in
Zamboanga City because Ali wanted to pray at the Sta. Barbara Mosque; Rahima and Nauda went
ahead to Siddik's place.11

At around 7:00 P.M., while Ali was waiting outside the Mosque for a ride to Sinunuc, he met Hassan,
who was riding a motorcycle with Amat. Hassan told him to ride with them as they would be going
somewhere in Recodo. When they were near the EAAB, Hassan overtook a motor vehicle and
almost collided with it. Amat approached the driver of the motor vehicle while Hassan went to the
other side. Amat and Hassan eventually boarded the vehicle with the latter forcing Ali to do the
same. Hassan pushed Ali inside while he was holding a gun and told him to follow or he would be in
trouble. Meanwhile, Hassan ordered a certain Jun  to ride the motorcycle and follow them.
12 13

As Amat was driving, Ali asked what they were doing but was told to stop talking and just follow.
Upon reaching Sinunuc, Ali asked Amat to stop the vehicle so he could get off but he was ignored.
Eventually, they stopped at the seashore of Pitogo. 14

There, all the occupants alighted with Hassan and Amat escorting and guarding Antonio, Cherry,
Igno, and Oliz further down the seashore. Ali remained by the vehicle. Later, Jun arrived on
Hassan's motorcycle. After sensing something suspicious with his companions, Ali decided to walk
away and proceed to the main road to catch a ride to Sinunuc. While he was waiting for
transportation, several persons suddenly held him and beat him up, accusing him of being a thief. Ali
was eventually brought to a house where the beatings continued. 15

After a few minutes, policemen arrived at the house where Ali was held. He was made to board the
police vehicle where he was blindfolded and beaten again. Ali was detained at the police station
where he was forced to admit to the kidnapping. 16

The RTC Ruling

In its 30 July 1999 decision, the RTC found Ali guilty of violating Article 267 of the RPC, the
dispositive portion of which reads:

WHEREFORE, the Court finds the

accused IBRAHIMALIyKALIMGUILTYBEYONDREASONABLEDOUBT as principal of the crime of
Kidnapping and Serious Illegal Detention defined and penalized under Article 267, paragraphs 2 and
of the Revised Penal Code as amended by Section 8 of Republic Act No. 7659, and SENTENCES
said accused to suffer the penalty of RECLUSIONPERPETUA with the accessory penalties provided
by law and to pay the costs. 17

Aggrieved, Ali appealed before the CA.

The CA Ruling

In its assailed 30 April 2015 decision, the CA affirmed the RTC decision, the dispositive portion of
which reads:

WHEREFORE, the instant Appeal is hereby DENIED for lack of merit. The assailed Decision dated
30 July 1999 of the trial court is AFFIRMED in toto. 18

Hence, this appeal, anchored on the following:

 ISSUES

WHETHER THE ACCUSED IS GUILTY BEYOND REASONABLE DOUBT OF SERIOUS ILLEGAL

DETENTION; AND

II

WHETHER THE ACCUSED WAS IDENTIFIED WITH MORAL CERTAINTY.

THE COURT'S RULING

The appeal has no merit.

Period of detention immaterial if

victim is a female

Ali argues that he could not be guilty of the crime of Serious Illegal Detention because the alleged
deprivation of liberty did not last for more than three (3) days as the incident only lasted for about an
hour or two. In order for the accused to be guilty of serious illegal detention, the following elements
must concur: (a) the offender is a private individual; (b) he or she kidnaps or detains another, or in
any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal;
and (d) in the commission of the offense any of the following circumstances is present: (1) the
kidnapping or detention lasts for more than three days; (2) it is committed by simulating public
authority; (3) any serious physical injuries are inflicted upon the person kidnapped or detained or
threats to kill the victim are made; or (4) the person kidnapped or detained is a minor, female, or a
public officer.
19

In other words, deprivation of liberty is qualified to serious illegal detention if at least one of the
following circumstances exists: (a) detention lasts for more than three (3) days; (b) accused
simulated public authority; (c) victim suffers serious physical injuries or is threatened to be killed; or
(d) the victim is a minor, female or public officer.

In the case at bar, the elements of serious illegal detention were duly proven by the
prosecution. First, Ali and his cohorts were clearly private individuals. Second, they deprived Oliz of
her liberty. This was manifested by the fact that they forcibly boarded the vehicle and placed Igno
and Antonio in handcuffs evincing their intent to detain the occupants of the motor vehicle. Third,
Oliz was a female victim. The CA was correct in ruling that the period of detention became
immaterial in view of the victim's circumstances. If, during the deprivation of liberty, any of the
circumstances under Article 267(4) of the RPC occurs, i.e, the victim was a female, the crime of
serious illegal detention is consummated. 20

Intent to detain or restrain the

victim's movement is tantamount to
illegal detention.

Ali likewise assails that there was insufficient evidence to hold that he forcefully transported, locked
up or restrained Oliz and her companions especially considering that the alleged handcuffs were
never presented in court. The essence of serious illegal detention is the actual deprivation of the
victim's liberty, coupled with the indubitable proof of intent of the accused to effect such deprivation-it
is enough that the victim is restrained from going home.  It contemplates situations where the victim
21

is restricted or impeded in one's liberty to move.  Oliz's testimony clearly demonstrates the intent of
22

the accused to deprive her and her companions of their liberty, to wit:

FISCAL NUVAL:

Q: Aside from asking the license of the driver, what else did they tell you?

A: They told us there was a tip that we were bringing contraband goods.

Q: Did they identify themselves?

A: Yes.

Q: What did they tell you?

A: They said that they are policemen.

Q: Then, what happen (sic) after that?

A: They went inside our vehicle and they asked the driver and this Boa to transfer at the back seat,
together with us.

xxxx

Q: You said three persons approached your vehicle two of them went inside the front seat, one on
the behind the steering wheel (sic) and other one sitting beside him and the other one went at the
back of that vehicle, now, tell us where did this accused sat (sic)?

A: At the front seat also.

Q: Was he behind the steering wheel?

A: No, he was sitting at the side of the driver.

Q: And after he sat beside the driver's seat, what did this person do?

A: He instructed that Rene will be handcuffed.

Q: To whom did he instruct to handcuffed (sic) this Rene?

A: His companion, the one sitted (sic) at the back.

Q: What did this person at the back do, after this accused instructed him to handcuffed (sic) Rene
Egno?

A: Then his companion handcuffed Egno.

xxxx
COURT:

Then after Sta. Maria, road, where did you proceed?

A: Then they said we will brought (sic) to the police station.

[FISCAL NUVAL:]

Q: Were you able to go the police station?

A: None, (sic) we just passed by. 23

Oliz's testimony clearly shows the intent of Ali and his cohorts to deprive the liberty and restrain the
movement of the occupants of the motor vehicle. They misrepresented themselves as policemen
and claimed they would bring Oliz and her companions to the police station; but they never got there
and were let go only when they arrived at Pitogo. Further, Oliz categorically stated that Ali ordered
his companions to handcuff Antonio and Igno. As pointed out by the CA, Oliz's testimony
demonstrates that her freedom of movement was effectively restrained by the abductors who
exercised complete control and dominion over the person of the victims.

Otiz identified Ali as the accused in a

categorical and straightforward
manner.

Ali also challenges Oliz's identification of him claiming that her testimony was marred with
inconsistencies and that she was only able to identify him after reading the newspapers two days
after the incident. We have held that inconsistencies on immaterial details do not negate the
probative value of the testimony of a witness regarding the very act of the accused.  In fact, minor
24

inconsistencies tend to strengthen the credibility of the witness because it shows that the testimony
was not rehearsed. 25

In the case at bar, the inconsistencies, e.g., the position of the occupants inside the vehicle, assailed
by Ali, pertain to trivial matters. On the contrary, Oliz remained consistent in identifying Ali as one of
those involved in the kidnapping, viz:

FISCAL NUVAL:

xxxx

Q: Now, madam witness, can you recognize those three persons who approached you and identified
themselves as policemen and that person who went inside that car, can you identify those three
persons?

A: Yes.

Q: Are they inside this courtroom, will you please look around and tell us if they are inside this
courtroom? A: There is one here.

COURT:

Go down and touch him

A: (Witness went down from the witness stand and approached the accused and at the same time
holding his hand, and when the accused was asked, identified himself as Ibrahim Ali).

xxxx

[Cross-Examination]

ATTY. PAK.AM: xxx

Q: Madam witness, how far were you sitted (sic) to the rear of the car from accused Ibrahim Ali?
From where you were sitted (sic) to the rear of the car, how far were you to Ibrahim Ali?

A: Ten inches in distance.

Q: You were sitted (sic) ten inches according to you, from Ibrahim Ali, correct?

A: Yes.

Q: Is there a bar that separates you from Ibrahim Ali?

A: Yes.

Q: What is this?

A: Just after the seat from the driver there is a sort of bar, a wall or bar, it is an iron bar.

xxxx

Q: You said accused Ibrahim Ali instructed that Rene be handcuffed, who did he give the
instruction?

A: He instructed his companion to handcuffed (sic) Rene. 26

Positive identification pertains essentially to proof of identity.  In order that identification be deemed
27

with moral certainty enough to overcome the presumption of innocence, it must be impervious to
skepticism on account of its distinctiveness.  Such distinctiveness is achieved through identification
28

evidence which encompass unique physical features or characteristics like the face, voice or any
other physical facts that set the individual apart from the rest of humanity.  In the case at bar, it is
29

unquestionable that Ali was identified with moral certainty. Oliz was able to distinguish and identify
accused considering their proximity inside the vehicle and the duration of the captivity. Thus, she
was intimately familiar with Ali's facial features and voice-enough to lend credibility to her
identification of the accused.

Ali's contention that Oliz was only able to identify him after reading the newspaper is erroneous.
During cross-examination, she merely stated that she became aware of Ali's name after reading the
dailies. To wit:

ATTY. PAKAM:
Q: Now, specifically you mentioned the name Ali Ibrahim, by the way, do you know Ali Ibrahim
before? A: No.

Q: When did you come to know the name Ali Ibrahim?

A: At the police station and in the newspaper.

Q: You come to know the name Ali Ibrahim thru newspaper and police station, where?

A: Southcom.

Q: So, not at the police station?

A: At Southcom.

Q: Who told you that his person's name is Ali Ibrahim?

A: When I read the newspaper.

Q: When did you read the newspaper?

A: Last December 16. 30

Clearly, the only information Oliz derived from newspapers or third-party sources is the name of the
accused. It was reasonably expected that she would be oblivious of Ali's name because the latter
was a stranger to her prior to the abduction. Nevertheless, Oliz was able to sufficiently and
consistently identify Ali as her abductor even if she did not know his name.

Further, Ali challenging his identification is absurd considering that he himself admits his presence
during the abduction. In his cross-examination, he narrated:

PROSECUTOR NUVAL:

xxxx

Q: Now, you said you overtook a jeep. What kind of a jeep was this, will you please describe?

A: Well, I do not know what kind of a jeep is this.

Q: Is that the color blue?

A: Yes.

Q: Is it a pick up type?

A: Well, I do not know. I did not examine.

COURT:
Q: Is it not a fact that you were following this jeep while it was travelling in front of you before you
overtook it?

A: Yes, Your Honor, but, I do not know, I was not thinking that it will happen like that Your Honor.

Q: Since when did you notice that you were following this blue jeep?

A: When we were already near the gate of that Air Base Your Honor.

Q: But, before you overtook this jeep you already noticed that this jeep was travelling ahead of you?

A: I do not know, Your Honor. I was not thinking about that jeep Your Honor.

xxxx

PROSECUTOR NUVAL:

Q: And this Hassan, when you overtook this jeep almost bumped this jeep?

A: Yes.

Q: And he purposely stopped this motorcycle?

A: Yes.

Q: And, he also make the motorcycle fell on the ground (sic), correct?

A: No. Well, it was not the motorcycle, he was just about to fall down.

Q: Were you able to fall down?

A: No.

Q: So, what did he do with his motorcycle?

A: It was on a stop, standing.

Q: And then, what happened next?

A: All of us alighted.

Q: What about the motorcycle?

A: It was just in front of the jeep.

COURT:

Q: You blocked the jeep?

A: Yes, Your Honor.

Q: So, the jeep had no choice but to stop otherwise, it will run over your motorcycle?

A: Yes.

Q: Did the driver of the jeep apply the break so as to avoid running over the motorcycle which
stopped in front?

A: Yes, Your Honor.

xxxx
1awp++i1

PROSECUTOR NUVAL:

Q: And then, you said the three of you approached the driver?

A: No.

Q: So, when you stopped, was it parked purposely in front of the jeep, this motorcycle?

A: Yes.

Q: With its stand?

A: Yes.

Q: And, you alighted from the motorcycle?

A: Yes.

Q: Who alighted first from the motorcycle?

A: It was Ahmad, the one driving.

Q: And followed by you?

A: Then we were together with Hassan who alighted from the motorcycle.

Q: And then, when you alighted from that motorcycle, what did you do?

A: I was just there at the side of the motorcycle.

Q: And, what did this Ahmad do?

A: I approached the driver.

Q: What about Abduhassan, what did he do?

A: Abduhassan, went to the right side of the jeep and I was called by him.

Q: How did he call you?

A: You (sic) said, "you come with me".

Q: Did you approach him?

A: Well, I was following him from behind.

Q: And what happened Mr. Witness?

A: Then, he instructed me to go up immediately in that jeep so that we will not be in trouble.

Q: You went immediately? Okey (sic). Who was the driver of that jeep at that time?

A: When I boarded already the jeep, I saw Ahmad was already in the place of the driver.

xxxx

Q: Okey (sic), from the Air Base, you said, this Abduhassan called you. And voluntarily, you
approached him?

A: I was just behind.

Q: And, he asked you to go inside the vehicle?

A: Yes, I was instructed to go up in fact, he was pushing me.

Q: He just pushed you, no more no less?

A: Yes, I was being pushed.

Q: Did he not poke his gun to you and threatened you to go inside?

A: No. I was just pushed.

Q: He did not also utter any words which threatened you if you will not go with them, Mr. Witness?

A: No, but what he said was just to hurry up in going up that vehicle so that there will be no trouble.

Q: So you just followed his command, you also hurriedly went up inside that jeep?

A: Well, I did not hurry but, I just went up the jeep. And according to him, to avoid trouble. 31

Instead of refuting the version of Oliz, Ali's testimony in fact corroborates its material points. He
admitted that he was with Hassan and Amat when their motorcycle stopped in front of the Nissan
vehicle; and that the three decided to board the vehicle and take control. Ali merely denied his
participation feigning that Hassan coerced him.
This, however, is refuted by the categorical and straightforward testimony of Oliz that it was Ali who
was giving commands to his companions. Thus, he could not have been an unwilling participant as
he was in fact the one calling the shots. Further, even if Ali were to be believed, nothing in his
testimony shows that Hassan exerted such force or coercion or uttered threats that would have
deprived Ali with the free exercise of his will. Absent any showing that Oliz was motivated by ill will to
falsely testify against Ali, her testimony should be granted credence  especially since it was candid,
32

straightforward, and devoid of any material inconsistencies.

WHEREFORE, the appeal is DENIED. The 30 April 2015 Decision of the Court of Appeals in CA-
G.R. CR-HC No. 00473-MIN is AFFIRMED.

SO ORDERED.

SAMUEL R. MARTIRES
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

(On Official Leave)

MARVIC M.V.F. LEONEN
LUCAS P. BERSAMIN
Associate Justice
Associate Justice

(On Leave)
ALEXANDER G. GESMUNDO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation,
I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes

*
 On Official Leave.

**
 On Leave.

 Rollo, pp. 5-27; penned by Associate Justice Rafael Antonio M. Santos, and concurred in
1

by Associate Justices Edgardo T. Lloren and Edward B. Contreras.

2
 Records, pp. 56-86; penned by Judge Jesus C. Carbon, Jr.

3
 Id. at 1.

4
 Id. at 16.

5
 TSN, 6 May 1999, pp. 6-7; testimony of Oliz.

6
 Id. at 9-10 and 33.

7
 Id. at 8-15.

8
 Id. at 16-17; TSN, 17 May 1999, pp. 18-19; testimony of Mario C. Agarte.

9
 TSN, 6 May 1999, pp. 18-20; testimony of Oliz.

10
 Id. at 20-22.

 TSN, 13 May 1999, pp. 7-8; cross-examination of Ali; TSN, 12 May 1999, pp. 14-16; direct
11

examination of Ali

12
 Identified as "Jul" in the Information.

13
 TSN, 12 May 1999, pp. 20-22, 25-28 and 31-32.

14
 Id. at 35-37.

15
 Id. at 39-43.

16
 Id. at 46-51.

17
 Records, p. 86.

18
 Rollo, p. 27.

19
 People v. Niegas, 722 Phil. 30 I, 310 (2013).

20
 People v. De Guzman, 773 Phil. 662, 671 (2015).

21
 People v. Pepino, G.R. No. 174471, 12 January 2016, 779 SCRA 170, 671.
  People v. Baluya, 664 Phil. 141, 150 (2011).
22

 TSN, 6 May 1999, pp. 10-16.

23

 Avelino v. People, 714 Phil. 323, 334 (2013).

24

 People v. Alipio, 618 Phil. 38, 48 (2009).

25

 TSN, 6 May 1999, pp. 11-12 and 44-45.

26

 People v. Gallarde, 382 Phil. 718, 736 (2000).

27

 People v. Caliso, 675 Phil. 742, 756 (2011).

28

 Id.
29

 TSN, 6 May 1999, pp. 46-47.

30

 TSN, 13 May 1999, pp. 15-22.

31

 People v. Jalbonian, 713 Phil. 93, 104 (2013).

32

G.R. No. 174471, January 12, 2016

PEOPLE OF THE PHILIPPINES, Petitioner, v. JERRY PEPINO Y RUERAS AND

PRECIOSA GOMEZ Y CAMPOS, Respondents.

DECISION

BRION, J.:

This is an appeal filed by Jerry Pepino (Pepino) and Preciosa Gomez (Gomez) assailing
the June 16, 2006 decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02026.

ANTECEDENTS

The prosecution evidence showed that at 1:00 p.m., on June 28, 1997, two men and a
woman entered the office of Edward Tan at Kilton Motors Corporation in Sucat,
Paranaque City, and pretended to be customers. When Edward was about to receive
them, one of the men, eventually identified as Pepino, pulled out a gun. Thinking that it
was a holdup, Edward told Pepino that the money was inside the cashier's box. Pepino
and the other man looted the cashier's box, handcuffed Edward, and forced him to go
with them.2 From the hallway, Jocelyn Tan (mentioned as "Joselyn" in some parts of the
record), Edward's wife, saw Pepino take her husband. She went to the adjoining room
upon Edward's instructions.3 chanroblesvirtuallawlibrary

Pepino brought Edward to a metallic green Toyota Corolla where three other men were
waiting inside. The woman (later identified as Gomez) sat on the front passenger
seat.4 The abductors then placed surgical tape over Edward's eyes and made him wear
sunglasses. After travelling for two and a half hours, they arrived at an apartment in
Quezon City. The abductors removed the tape from Edward's eyes, placed him in a
room, and then chained his legs. Pepino approached Edward and asked for the phone
number of his father so that he could ask for ransom for his (Edward's) liberty. Edward
told Pepino to negotiate with his wife, but the latter insisted on talking to his father.5 chanroblesvirtuallawlibrary

At around 5:00 p.m. of the same day, the kidnappers called Edward's father and
demanded a P40 million ransom for his release. Edward's father told the kidnappers
that he did not have that amount. The abductors negotiated with Jocelyn who
eventually agreed to a P700,000.00 ransom. The kidnappers told Jocelyn to pack the
money into two packages and to drop these at a convenience store in front of
McDonald's at Mindanao Avenue. They further demanded that Edward's vehicle be used
to bring the money.6 chanroblesvirtuallawlibrary

After four days, or on July 1, 1997, Antonio Gepiga (the family driver) brought the
agreed amount to the 7-Eleven convenience store at Mindanao Avenue as
instructed.7 That evening, three men and Gomez blindfolded Edward, made him board a
car, and drove around for 30 minutes. Upon stopping, they told Edward that he could
remove his blindfold after five minutes. When Edward removed his blindfold, he found
himself inside his own car parked at the UP Diliman Campus. He drove home and
reported his kidnapping to Teresita Ang See, a known anti-crime crusader.8 chanroblesvirtuallawlibrary

After five months, the National Bureau of Investigation (NBI) informed Edward that
they had apprehended some suspects, and invited him to identify them from a lineup
consisting of seven persons: five males and two females. Edward positively identified
Pepino, Gomez, and one Mario Galgo.9 Jocelyn likewise identified Pepino.10 chanroblesvirtuallawlibrary

Pepino and Gomez did not testify for their defense. The defense instead presented Zeny
Pepino, Reynaldo Pepino, NBI Special Investigator Marcelo Jadloc and P/Sr. Insp.
Narciso Quano (mentioned as "Qano" in some parts of the record).

Zeny testified that she and her husband, Jerry Pepino, were inside their house in Cebu
City on December 7, 1997, when about 20 heavily armed men entered their house
looking for Jerry. When Jerry asked them if they had a warrant of arrest, one of the
men pointed a gun at him and handcuffed him; the armed men then hit him with the
butt of an armalite and punched him. The men also took Pepino's wristwatch and
wallet, as well as Zeny's bag and watch. Some of the armed men searched the second
floor of the house, and found a .45 caliber gun. The armed men brought Zeny and
Pepino outside their house where Zeny saw Renato Pepino and Larex Pepino already
handcuffed. The armed men brought them to the Cebu City Police Headquarters before
bringing them to the NBI Headquarters in Manila. The following day, Jerry, Renato, and
Larex were brought to the Department of Justice (DOJ). Zeny, on the other hand, was
released after being detained at the NBI for three (3) days.11chanroblesvirtuallawlibrary

Reynaldo's testimony was summarized by the CA as follows:

x x x On December 6, 1997, he accompanied accused-appellant Gomez to his brother's
sister-in-law who happens to work in a recruitment agency. While they were inside the
latter's house at Lot 2, Block 15, Marikina Heights, Marikina City, they heard a noise at
the gate. When he peeped through the window, he saw two (2) motorcycles and two
(2) Vannette vans. Shortly thereafter, someone kicked the back door and several
armed men emerged therefrom and announced their arrest. When he asked them if
they had any warrant, they replied: "Walang warrant, warrant. Walang search,
search." They were then hogtied and made to lie face down. Five (5) of them then went
upstairs and seized his personal belongings together with his briefcase which contained
P45,000.00, documents of accused-appellant Gomez, and his .45 caliber pistol as well
as his license and permit to carry the same. No receipts were issued for their personal
effects which were confiscated. They were subsequently brought to Camp Crame and
subjected to torture. The following day, they were brought to the Department of Justice
and a case for kidnapping was filed against him. Upon reinvestigation, however, he was
discharged from the Information and the court dismissed the case against him.12 chanroblesvirtuallawlibrary

SI Jadloc and Police Senior Inspector Quano, Jr. were presented as hostile witnesses.

Jadloc declared on the witness stand that NBI Assistant Director Edmundo Arugay
dispatched a team to Cebu City to investigate a kidnap-for-ransom case. The team
immediately conducted surveillance operations when they arrived at Calle Rojo, Lahug,
Cebu City. One of the team members saw Renato and Larex Pepino with guns tucked in
their waists. When the team approached them, the two men ran inside their house. The
team went after them and on entering the house, they saw Jerry in possession of a .45
caliber gun. The team arrested Jerry, Renato and Larex, and then brought them to the
NBI Headquarters in Manila.13 chanroblesvirtuallawlibrary

Quano testified that he was designated as the leader of a team tasked to arrest
members of a kidnap-for-ransom group at their safe house in Lot 2, Block 50, Marikina
Heights, Marikina City. When they arrived there, they introduced themselves as police
officers. The police forcibly opened the door after the occupants of the house refused to
open the ground floor door. During their search at the second floor, the operatives
found an armalite and a .45 caliber gun. The members of the team handcuffed Gomez
and Reynaldo, and then brought them to Camp Crame.14 chanroblesvirtuallawlibrary

The prosecution charged Preciosa Gomez, Jerry Pepino, Reynaldo Pepino, Jessie Pepino,
George Curvera, Boy Lanyujan, Luisito "Tata" Adulfo, Henriso Batijon (a.k.a. Dodoy
Batijon), Nerio Alameda, and an alias Wilan Tan with kidnapping for ransom and serious
illegal detention before the Regional Trial Court {RTC), Branch 259, Paranaque
City.15 Reynaldo was subsequently discharged after reinvestigation. Only Pepino,
Gomez, and Batijon were arraigned; their other co-accused remained at large.

In its May 15, 2000 decision, the RTC convicted Pepino and Gomez of kidnapping and
serious illegal detention under Article 267 of the Revised Penal Code (as amended) and
sentenced them to suffer the death penalty. The RTC also ordered them to pay Edward
P700,000.00 representing the amount extorted from him; P50,000.00 as moral
damages; and P50,000 as exemplary damages. The trial court acquitted Batijon for
insufficiency of evidence.
The RTC held that Edward positively identified Pepino and Gomez as two of the persons
who forcibly abducted him at gunpoint inside Kilton Motors, and who consequently
detained him somewhere in Quezon City for four (4) days until he was released inside
the UP Diliman Campus after the payment of ransom. The RTC added that Jocelyn
corroborated Edward's testimony on material points. It also pointed out that Edward
identified both Pepino and Gomez at the lineup conducted inside the NBI compound,
although Jocelyn only recognized Gomez.

The RTC further ruled that the accused were already estopped from questioning the
validity of their arrest after they entered their respective pleas.

The case was automatically elevated to this Court in view of the death penalty that the
RTC imposed. We referred the case to the CA for intermediate review pursuant to our
ruling in People v. Mateo.16
chanroblesvirtuallawlibrary

In its decision dated June 16, 2006, the Court of Appeals affirmed the RTC decision with
the modification that the amounts of moral and exemplary damages were increased
from P300,000.00 and P100,000.00, respectively.

The CA held that Pepino and Gomez were deemed to have waived any objection to the
illegality of their arrests when they did not move to quash the information before
entering their plea, and when they participated at the trial.

The CA further ruled that Pepino and Gomez conspired with each other to attain a
common objective, i.e., to kidnap Edward in exchange for ransom.

While the case was under review by the Supreme Court, Pepino filed an urgent motion
to withdraw his appeal, which the Court granted.17] Only Gomez's appeal is now pending
before us.

In her brief18 and supplemental brief,19 Gomez maintained that it was impossible for

Edward to have seen her in the front seat of the getaway car because he (Edward) was
blindfolded. She also alleged that the prosecution failed to prove that she had conspired
with the other accused.

Gomez further claimed that Edward's identification of her during trial "may have been
preconditioned x x x by suggestive identification"20 made at the police lineup. She
further argued that the death penalty imposed on her is no longer proper due to the
enactment of Republic Act No. 9346.

THE COURT'S RULING

We affirm Gomez's conviction, but we modify the penalty imposed and the
awarded indemnities.

Illegality of the Arrest

We point out at the outset that Gomez did not question before arraignment the legality
of her warrantless arrest or the acquisition of RTC's jurisdiction over her person. Thus,
Gomez is deemed to have waived any objection to her warrantless arrest.

It is settled that [a]ny objection to the procedure followed in the matter of the
acquisition by a court of jurisdiction over the person of the accused must be
opportunely raised before he enters his plea; otherwise, the objection is deemed
waived.21 As we held in People v. Samson:22 chanroblesvirtuallawlibrary

[A]ppellant is now estopped from questioning any defect in the manner of his arrest as
he failed to move for the quashing of the information before the trial court.
Consequently, any irregularity attendant to his arrest was cured when he voluntarily
submitted himself to the jurisdiction of the trial court by entering a plea of "not guilty"
and by participating in the trial.23
chanrobleslaw

At any rate, the illegal arrest of an accused is not sufficient cause for setting aside a
valid judgment rendered upon a sufficient complaint after a trial free from error. Simply
put, the illegality of the warrantless arrest cannot deprive the State of its right to
prosecute the guilty when all other facts on record point to their culpability. It is much
too late in the day to complain about the warrantless arrest after a valid information
had been filed, the accused had been arraigned, the trial had commenced and had been
completed, and a judgment of conviction had been rendered against her.24 chanroblesvirtuallawlibrary

Sufficiency of the Prosecution Evidence

a. Elements of kidnapping proved

The elements of kidnapping and serious illegal detention under Article 267 of the
Revised Penal Code, as amended, are: (1) the offender is a private individual; (2) he
kidnaps or detains another or in any other manner deprives the latter of his liberty; (3)
the act of detention or kidnapping must be illegal; and (4) in the commission of the
offense, any of the following circumstances is present: (a) the kidnapping or detention
lasts for more than three (3) days; or (b) it is committed by simulating public authority;
or (c) serious physical injuries are inflicted upon the person kidnapped or detained or
threats to kill him are made; or (d) the person kidnapped or detained is a minor,
female, or a public officer. If the victim of kidnapping and serious illegal detention is a
minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped
and illegally detained for the purpose of extorting ransom, the duration of his detention
is also of no moment and the crime is qualified and becomes punishable by death even
if none of the circumstances mentioned in paragraphs 1 to 4 of Article 267 is present.25 cralawred

All these elements have been established by the prosecution. Edward positively
identified Gomez and Pepino - both private individuals - as among the three persons
who entered his office and pretended to be Kilton Motors' customers. He further
declared that Pepino pointed a gun at him, and forcibly took him against his will. To
directly quote from the records:

ATTY. WILLIAM CHUA:

Q: Can you tell us if anything unusual happened to you on June 28, 1997?
EDWARD TAN:
A: I was kidnapped.
xxxx
Q: Can you tell this Court how the kidnapping was initiated?
A: At around 1:00 o'clock in the afternoon, there were three persons who entered the
office of Kilton Motors and pretended to be customers.
Q: What was the gender of these three persons that you are referring to?
A: Two men and a woman.
Q: After they pretended to be customers, tell us what happened?
A: They told me they were going to pay but instead of pulling out money, they pulled
out a gun.
Q: How many people pulled out guns as you said?
A: Only one, sir.
Q: Will you look around this courtroom now and tell us if the person who pulled out a
gun is in court?
A: (WITNESS POINTED TO A PERSON AT THE RIGHT SECTION, SECOND
ROW WHO, WHEN ASKED HIS NAME, ANSWERED JERRY PEPINO)
Q: Now, you said that there were two men and a woman who went up the Kilton
Motors Office and you pointed to one of the men as Jerry Pepino, can you look
around the courtroom and tell us if any of the two others are in court?
A: (WITNESS POINTED TO A WOMAN INSIDE THE COURTROOM WHO,
WHEN ASKED HER NAME, ANSWERED AS PRECIOSA GOMEZ)
xxxx
Q: You said Mr. Pepino pulled out his gun, what happened after he pulled out his gun?
A: He told me just to be quiet and go with him.
Q: What was your reaction when he pointed a gun to you and he stated those words?
A: I thought it was only a holdup and so I told him there was money with the cashier
and told him to get it.
Q: What happened after you told him the money was in the cashier's box?
A: His companion took the money and told me to still go with them.
Q: When they told you to go with them, what happened next?
A: I told them why should I still go with them and then, I was handcuffed and was
 forced to go down.
xxxx
Q: As they were bringing you down, what happened next, Mr. Witness?
A: When we went down nearing his car, I was boarded on [in] his car.
xxxx
Q: When they boarded you inside that car, what did they do to you, Mr. Witness?
A: They put surgical tape on my eyes and also sunglasses.
xxxx
Q: Who was at the passenger's front seat of the car?
A: It was Preciosa Gomez.26 chanroblesvirtuallawlibrary

xxxx
Edward further declared on the witness stand that Pepino, Gomez, and their other co-
accused brought him to a safe house in Quezon City; detained him there for four (4)
days; and demanded ransom from his (Edward's) family.

It is settled that the crime of serious illegal detention consists not only of placing a
person in an enclosure, but also in detaining him or depriving him of his liberty in any
manner. For there to be kidnapping, it is enough that the victim is restrained from
going home. Its essence is the actual deprivation of the victim's liberty, coupled with
indubitable proof of the intent of the accused to effect such deprivation.27 chanroblesvirtuallawlibrary

Notably, Jocelyn corroborated Edward's testimony on the following points: Pepino poked
a handgun at Edward while they were on the second floor of Kilton; Pepino and his
companion brought him downstairs and out of the building, and made him board a car;
and the kidnappers demanded ransom in exchange for Edward's release.

Both the RTC and the CA found the respective testimonies of Edward and Jocelyn
credible and convincing. We affirm the credibility accorded by the trial court (and
affirmed by the CA) to these prosecution witnesses, in the absence of any showing that
this factual finding had been arbitrarily arrived at. There is nothing in the records that
would put the testimonies of Edward and Jocelyn under suspicion. We recall that
Edward had close contacts with Pepino at Kilton Motors and at the safe house. He also
saw Gomez (a) seated at the front seat of the getaway Toyota Corolla vehicle; (b) at
the safe house in Quezon City; and (c) inside the car before the kidnappers released
him.

Jocelyn, for her part, stated that she was very near Pepino while he was taking away
her husband.

In People v. Pavillare,28 the Court found the testimonies of the private complainant

Sukhjinder Singh and his cousin, Lakhvir Singh, to be credible and convincing, and
reasoned out as follows:
Both witnesses had ample opportunity to observe the kidnappers and to remember
their faces. The complainant had close contact with the kidnappers when he was
abducted and beaten up, and later when the kidnappers haggled on the amount of the
ransom money. His cousin met Pavillare face to face and actually dealt with him when
he paid the ransom money. The two-hour period that the complainant was in close
contact with his abductors was sufficient for him to have a recollection of their physical
appearance. Complainant admitted in court that he would recognize his abductors if he
sees them again and upon seeing Pavillare he immediately recognized him as one of the
malefactors as he remembers him as the one who blocked his way, beat him up,
haggled with the complainant's cousin and received the ransom money, x x x It bears
repeating that the finding of the trial court as to the credibility of witnesses is given
utmost respect and as a rule will not be disturbed on appeal because it had the
opportunity to closely observe the demeanor of the witness in court.29 chanrobleslaw

b. Admissibility of Identification

We find no merit in Gomez's claim that Edward's identification of her during trial might
have been preconditioned by the "suggestive identification" made during the police
lineup.

In People v. Teehankee, Jr.,30 the Court explained the procedure for out-of-court

identification and the test to determine the admissibility of such identifications in this
manner:

Out-of-court identification is conducted by the police in various ways. It is done

thru show-ups where the suspect alone is brought face to face with the witness for
identification. It is done thru mug shots where photographs are shown to the witness to
identify the suspect. It is also done thru lineups where a witness identifies the suspect
from a group of persons lined up for the purpose x x x In resolving the admissibility of
and relying on out-of-court identification of suspects, courts have adopted the totality
of circumstances test where they consider the following factors, viz: (1) the witness'
opportunity to view the criminal at the time of the crime; (2) the witness' degree of
attention at that time; (3) the accuracy of any prior description given by the witness;
(4) the level of certainty demonstrated by the witness at the identification; (5) the
length of time between the crime and the identification; and (6) the suggestiveness of
the identification procedure.31chanrobleslaw

Applying the totality-of-circumstances test, we find Edward's out-of-court identification

to be reliable and thus admissible. To recall, when the three individuals entered
Edward's office, they initially pretended -to be customers,32 and even asked about the
products that were for sale.33 The three had told Edward that they were going to pay,
but Pepino "pulled out a gun" instead.34 After Pepino's companion had taken the money
from the cashier's box, the malefactors handcuffed Edward and forced him to go down
to the parked car. From this sequence of events, there was thus ample opportunity for
Edward - before and after the gun had been pointed at him -to view the faces of the
three persons who entered his office. In addition, Edward stated that Pepino had talked
to him "[a]t least once a day"35 during the four days that he was detained.

Edward also saw Gomez seated at the front seat of the getaway metallic green Toyota
Corolla vehicle. In addition, the abductors removed the tape from Edward's eyes when
they arrived at the apartment, and among those whom he saw there was Gomez.
According to Edward, he was able to take a good look at the occupants of the car when
he was about to be released.

On the part of Jocelyn, she was firm and unyielding in her identification of Pepino as the
person who pointed a gun at her husband while going down the stairs, and who brought
him outside the premises of Kilton Motors. She maintained that she was very near when
Pepino was taking away her husband; and that she could not forget Pepino's face. For
accuracy, we quote from the records:

ATTY. CORONEL:
Q: You stated that you were able to see one of the persons who kidnapped your
husband, if you see this person again, would you be able to identify him?
JOCELYN SY TAN:
A: Yes, sir.
Q: Can you look around the courtroom and see if the person you are referring to is here
today?
A: Yes, sir.
Q: Can you point to him?
A: (WITNESS POINTED TO A MALE PERSON INSIDE THE COURTROOM WHO
WHEN ASKED HIS NAME ANSWERED AS JERRY PEPINO).
Q: Ms. Witness, what role did this person whom you identified and gave his name as
Jerry Pepino, what role did he play in the kidnapping of your husband?
A: Siya po bale 'yong nakayakap sa husband ko tapos nakatutok ng baril.
xxxx
ATTY. ESTRUCO:
Q: When Jerry Pepino was at Kilton Motors, he embraced your husband?
JOCELYN SY TAN:
A: Yes, sir. And pointed a gun at my husband.
Q: And he was not blindfolded at that time?
A: No, he was not blindfolded, he was only wearing a cap.
Q: You are very sure that he is Jerry Pepino?
A: Yes, I am very, very sure. I could not forget his face.
Q: You are very sure?
A: Yes, sir. Kahit sa nightmare ko, kasama siya.
x x x x36

We add that no competing event took place to draw Edward's and Jocelyn's attention
from the incident. Nothing in the records shows the presence of any distraction that
could have disrupted the witnesses' attention at the time of the incident.37 chanroblesvirtuallawlibrary

Jurisprudence holds that the natural reaction of victims of criminal violence is to strive
to see the appearance of their assailants and observe the manner the crime was
committed. As the Court held in People v. Esoy:38 chanroblesvirtuallawlibrary

It is known that the most natural reaction of a witness to a crime is to strive to look at
the appearance of the perpetrator and to observe the manner in which the offense is
perpetrated. Most often the face of the assailant and body movements thereof, create a
lasting impression which cannot be easily erased from a witness's memory. Experience
dictates that precisely because of the unusual acts of violence committed right before
their eyes, eyewitnesses can remember with a high degree of reliability the identity of
criminals at any given time.39 chanrobleslaw

While this pronouncement should be applied with great caution, there is no compelling
circumstance in this case that would warrant its non-application.

Contrary to what Gomez claimed, the police lineup conducted at the NBI was not
suggestive. We note that there were seven people in the lineup; Edward was not
compelled to focus his attention on any specific person or persons. While it might have
been ideal  if there had been more women included in the lineup instead of only two, or
if there had been a separate lineup for Pepino and for Gomez, the fact alone that there
were five males and two females in the lineup did not render the procedure irregular.
There was no evidence that the police had supplied or even suggested to Edward that
the appellants were the suspected perpetrators.

The following exchanges at the trial 'during Edward's cross-examination prove this
point:

ATTY. ESTURCO:
Q: When they were lined up at the NBI, where were they placed, in a certain room?
EDWARD TAN:
A: Yes, sir.
Q: With a glass window? One way?
A: No, sir.
Q: You mean to say you were face to face with the alleged kidnappers?
A: Yes, sir.
Q: And before you were asked to pinpoint the persons who allegedly kidnapped you,
you conferred with the NBI agents?
A: The NBI agents told me not to be afraid.
Q: No, my question is, you conferred with the NBI agents?
A: Yes, sir.
Q: What is the name of the NBI agent?
A: I cannot remember, sir.
Q: And how many were lined up?
A: Seven, sir.
Q: And the NBI agent gave the names of each of the seven?
A: No, sir.<SUP STYLE="COLOR: RGB(255, 0, 0);">[40]</SUP>

We also note that Jocelyn's and Edward's out-of-court identifications were made on the
same day. While Jocelyn only identified Pepino, the circumstances surrounding this out-
of-court identification showed that the whole identification process at the NBI was not
suggestive. To directly quote from the records:

ATTY. ESTURCO:
Q: How about the alleged kidnappers, where were they placed during that time?
JOCELYN TAN:
A: They were in front of us.
Q: Without any cover?
A: None, sir.
Q: Without any glass cover?
A: See-through glass window.
Q: One-way mirror?
A: Not one way, see-through.
Q: And before you were asked to pinpoint the alleged kidnappers, you were already
instructed by the NBI what to do and was told who are the persons to be lined up?
A: No, sir.
xxxx
Q: And between the alleged length of time, you were still very positive that it was Gerry
(sic) Pepino inside the NBI cell?
A: At first, I did not know that he was Jerry Pepino but we know his face.
Q: At first, you did not know that it was Jerry Pepino?
A: Yes, sir.
xxxx
Q: It was the NBI officer who told you that the person is Jerry Pepino, am I correct?
A: They identified that the person we identified was Jerry Pepino. We first pinpointed
na heto ang mukha at saka sinabi na 'yan si Jerry Pepino.
x x x x 41

These exchanges show that the lineup had not been attended by any suggestiveness on
the part of the police or the NBI agents; there was no evidence that they had supplied
or even suggested to either Edward or Jocelyn that the appellants were the kidnappers.

We are not unaware that the Court, in several instances, has acquitted an accused
when the out-of-court identification is fatally flawed. In these cases, however, it had
been clearly shown that the identification procedure was suggestive.

In People v. Pineda,42 the Court acquitted Rolando Pineda because the police suggested
the identity of the accused by showing only the photographs of Pineda and his co-
accused Celso Sison to witnesses Canilo Ferrer and Jimmy Ramos. According to the
Court, "there was impermissible suggestion because the photographs were only of
appellant and Sison, focusing attention on the two accused."43 chanroblesvirtuallawlibrary

Similarly, the Court in People v. Rodrigo44 acquitted appellant Lee Rodrigo since only a
lone photograph was shown to the witness at the police station. We thus held that the
appellant's in-court identification proceeded from, and was influenced by, impermissible
suggestions in the earlier photographic identification.

The lack of a prior description of the kidnappers in the present case should not lead to a
conclusion that witnesses' identification was erroneous. The lack of a prior description
of the kidnappers was due to the fact that Jocelyn (together with other members of
Edward's family), for reasons not made known in the records, opted to negotiate with
the kidnappers, instead of immediately seeking police assistance. If members of
Edward's family had refused to cooperate with the police, their refusal could have been
due to their desire not to compromise Edward's safety.45 In the same manner, Edward,
after he was freed, chose to report the matter to Teresita Ang See, and not to the
police.

Given these circumstances, the lack of prior description of the malefactors in this case
should not in any way taint the identification that Edward and Jocelyn made.

c. The Right to Counsel

The right to counsel is a fundamental right and is intended to preclude the slightest
coercion that would lead the accused to admit something false. The right to counsel
attaches upon the start of the investigation, i.e., when the investigating officer starts to
ask questions to elicit information and/or confessions or admissions from the
accused.46 chanroblesvirtuallawlibrary
Custodial investigation commences when a person is taken into custody and is singled
out as a suspect in the commission of the crime under investigation.47 As a rule, a
police lineup is not part of the custodial investigation; hence, the right to counsel
guaranteed by the Constitution cannot yet be invoked at this stage. The right to be
assisted by counsel attaches only during custodial investigation and cannot be claimed
by the accused during identification in a police lineup.

Our ruling on this point in People v. Lara48 is instructive:

x x x The guarantees of Sec. 12(1), Art. Ill of the 1987 Constitution, or the so-
called Miranda rights, may be invoked only by a person while he is under custodial
investigation. Custodial investigation starts when the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular suspect
taken into custody by the police who starts the interrogation and propounds questions
to the person to elicit incriminating statements. Police line-up is not part of the
custodial investigation; hence, the right to counsel guaranteed by the Constitution
cannot yet be invoked at this stage.49 chanrobleslaw

Defense witness Reynaldo, however, maintained that Pepino and Gomez were among
those  already presented to the media as kidnapping suspects by the DOJ a day
before the police lineup was made. In this sense, the appellants were already the focus
of the police and were thus deemed to be already under custodial investigation when
the out-of-court identification was conducted.

Nonetheless, the defense did not object to the in-court identification for having
been tainted by an irregular out-of-court identification in a police lineup. They
focused, instead, on the legality of the appellants' arrests.

Whether Edward and Jocelyn could have seen Pepino and Gomez in various media fora
that reported the presentation of the kidnapping suspects to the media is not for the
Court to speculate on. The records merely show that when defense counsel, Atty.
Caesar Esturco, asked Jocelyn during cross-examination whether she was aware that
there were several kidnap-for-ransom incidents in Metro Manila, the latter answered
that she "can read in the newspapers."50 At no time did Jocelyn or Edward ever mention
that they saw the appellants from the news reports in print or on television.

At any rate, the appellants' respective convictions in this case were based on
an independent in-court identification made by Edward and Jocelyn, and not
on the out-of-court identification during the police lineup. We reiterate that the
RTC and the CA found the court testimonies of these witnesses to be positive and
credible, and that there was no showing that their factual findings had been arrived at
arbitrarily. The in-court identification thus cured whatever irregularity might have
attended the police lineup.

As the Court ruled in People v. Algarme:51 chanroblesvirtuallawlibrary

Even assuming arguendo the appellants' out-of-court identification was defective, their

subsequent identification in court cured any flaw that may have initially attended it. We
emphasize that the "inadmissibility of a police lineup identification x x x should not
necessarily foreclose the admissibility of an independent in-court identification." We
also stress that all the accused-appellants were positively identified by the prosecution
eyewitnesses during the trial.

It is also significant to note that despite the overwhelming evidence adduced by the
prosecution, Pepino and Gomez did not even testify for their respective defenses.

d. The Presence of Conspiracy

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a crime and decide to commit it. It may be proved by direct or
circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators
before, during and after the commission of the felony to achieve a common design or
purpose.

Proof of the agreement does not need to rest on direct evidence, as the agreement may
be inferred from the conduct of the parties indicating a common understanding among
them with respect to the commission of the offense. Corollarily, it is not necessary to
show that two or more persons met together and entered into an explicit agreement
setting out the details of an unlawful scheme or the details by which an illegal objective
is to be carried out.52
chanroblesvirtuallawlibrary

In the present case, the records establish the following facts: Pepino, Gomez, and
another man entered Edward's office, and initially pretended to be customers; the three
told Edward that they were going to pay, but Pepino pulled out a gun. After Pepino's
companion took the money from the cashier's box, the malefactors handcuffed him and
forced him to go down to the parked car; Gomez sat at the front passenger seat of the
car which brought Edward to a safe house in Quezon City; the abductors removed the
tape from Edward's eyes, placed him in a room, and then chained his legs upon arrival
at the safe house; the abductors negotiated with Edward's family who eventually
agreed to a P700,000.00 ransom to be delivered by the family driver using Edward's
own car; and after four days, three men and Gomez blindfolded Edward, made him
board a car, drove around for 30 minutes, and left him inside his own car at the UP
Diliman campus.

The collective, concerted, and synchronized acts of the accused before, during, and
after the kidnapping constitute undoubted proof that Gomez and her co-accused
conspired with each other to attain a common objective,  i.e., to kidnap Edward and
detain him illegally in order to demand ransom for his release.

The Proper Penalty:

Article 267 of the Revised Penal Code, as amended, mandates the imposition of the
death penalty when the kidnapping or detention is committed for the purpose of
extorting ransom from the victim or any other person. Ransom, as employed in the law,
is so used in its common or ordinary sense; meaning, a sum of money or other thing of
value, price, or consideration paid or demanded for redemption of a kidnapped or
detained person, a payment that releases one from captivity.53 chanroblesvirtuallawlibrary

In the present case, the malefactors not only demanded but received ransom for
Edward's release. The CA thus correctly affirmed the RTC's imposition of the death
penalty on Pepino and Gomez.

With the passage of Republic Act No. 9346, entitled "An Act Prohibiting the Imposition
of Death Penalty in the Philippines" (signed into law on June 24, 2006), the death
penalty may no longer be imposed. We thus sentence Gomez to the penalty
of reclusion perpetua without eligibility for parole pursuant to A.M. No. 15-08-02-
SC.54chanroblesvirtuallawlibrary

The reduced penalty shall likewise apply to the non-appealing party, Pepino, since it is
more favorable to him.

The Awarded Indemnities:

In the case of People v. Gambao55 (also for kidnapping for ransom), the Court set the
minimum indemnity and damages where facts warranted the imposition of the death
penalty if not for prohibition thereof by R.A. No. 9346, as follows: (1) P100,000.00 as
civil indemnity; (2) P100,000.00 as moral damages which the victim is assumed to
have suffered and thus needs no proof; and (3) PI00,000.00 as exemplary damages to
set an example for the public good. These amounts shall earn interest at the rate of six
percent (6%) per annum from the date of the finality of the Court's Resolution until
fully paid.

We thus reduce the moral damages imposed by the CA from P300,000.00 to

P100,000.00 to conform to prevailing jurisprudence on kidnapping cases. This reduced
penalty shall apply to Pepino for being more favorable to him. However, the additional
monetary award (i.e., P100,000.00 civil indemnity) imposed on Gomez shall not be
applied to Pepino.56 chanroblesvirtuallawlibrary

We affirm the P700,000.00 imposed by the courts below as restitution of the amount of
ransom demanded and received by the kidnappers. We also affirm the CA's award of
P100,000.00 as exemplary damages based on Gambao.

WHEREFORE, in the light of all the foregoing, we AFFIRM the challenged June 16,
2006 decision of the Court of Appeals in CA-G.R. CR-HC No. 02026 with the
following MODIFICATIONS:

(1) the penalty imposed on Gomez and Pepino shall be reduced from death to reclusion
perpetua without eligibility for parole;

(2) they are jointly and severally ordered to pay the reduced amount of PI 00,000.00
as moral damages;

(3) Gomez is further ordered to pay the victim PI 00,000.00 as civil indemnity; and

(4) the awarded amounts shall earn interest at the rate of six percent (6%) per annum
from the date of the finality of the Court's Decision until fully paid.

SO ORDERED. cralawlawlibrary
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,  Del Castillo,
Perez, Mendoza Reyes, and Perlas-Bernabe, JJ., concur.
Bersamin and Villarama, Jr., JJ., no part.
Leonen, J., see dissenting opinion.
Jardeleza, J., no part, prior OSG action

Endnotes:

1
Rollo, pp. 4-21; penned by Associate Justice Martin S. Viliarama, Jr. (now a member of
this Court) and concurred in by Associate Justices Lucas P. Bersamin (now a member of
this Court) and Celia C. Librea-Leagiogo.

2
 TSN, January 28, 1999, pp. 6-9, 35-36.

3
 TSN, January 14, 1999, pp. 7-9; TSN, January 28, 1999, p. 37.

4
 TSN, January 28, 1999, pp. 10-13,65.

5
 Id. at 14-16, 59-60.

6
 TSN, January 14, 1999, pp. 14-19.

7
 Id. at 19-20. 8

8
 TSN, January 28, 1999, pp. 19-21.

9
 Id. at 21-23, 27 and 67.

10
 TSN, January 14, 1999, pp. 46-48.

11
 TSN, August 25, 1999, pp. 6-23.

12
 CA decision, rollo, p. 8.

13
 TSN, August 25, 1999, pp. 40-73.

14
 TSN, November 25, 1999, pp. 8-29.

15
 Docketed as Criminal Case No. 97-946.

16
 477 Phil. 752 (2004).

17
 The case against Pepino became final and executory on August 15, 2014, per Entry of
Judgment made on the same day.

18
 CA rollo, pp. 45-59.

19
Rollo, 59-70.
20
 Id. at 61.

21
 See People v. Trestiza, G.R. No. 193833, November 16, 2011, 660 SCRA 407, 442.

22
 G.R. No. 100911, May 16, 1995, 244 SCRA 146.

23
 Id. at 150.

24
 See People of the Philippines v. Rommel Araza y Saguti, G.R. No. 190623, November
17, 2014; and  People of the Philippines v. Richard Giray y Corella alias "Herminigildo
Baltazar y Poquiz," G.R. No. 196240, February 19, 2014.

25
People v. Jatulan, 550 Phil. 343, 351-352. (2007).

26
 TSN, January 28, 1999, pp. 5-13. Emphasis supplied

27
 Sec  People v. Anticamara, G.R. No. 178771, June 8, 2011, 651 SCRA 489, 515
(citations omitted).

28
 386 Phil. 126(2000),

29
 Id. at 144.

30
 319 Phil. 128(1995).

31
 Id. at 180 (emphasis in the original).

32
 TSN, January 28, 1999, p. 6.

33
 Id. at 61

34
 Id. at 7.

35
 Id. at 59.
36
 TSM, January 14, 1999, pp. 6-7 and 34-35.

37
 The so-called "weapon-focus effect," while finding support in the areas of psychology
and behavioral science, has yet to find its way as a proven and reliable standard
acceptable as a consideration in our jurisdiction. We also emphasize in this regard that
the weapon-focus effect only reduces, not eliminates, the ability to recall the other
details of the crime.

38
 G.R. No. 185849, April 7, 2010, 6!7 SCRA 552.

39
 Id. at 561.

40
 TSN, January 28, 1999, pp. 66-68 (emphasis ours).

41
 TSN, January 14, 1999, pp. 37-38 and 46-48 (emphasis ours).
42
 473 Phil. 517(2004).

43
 Id. at 540.

44
 586 Phil. 515(2008).

45
 Per Jocelyn's testimony, two batches of policemen came. The first batch arrived at
Kilton Motors immediately after the incident, but Jocelyn told them, "huwag nyo muna
akong guluhin ngayon kasi magulu pa ang isip ko, umalis muna kayo." (TSN. January
14, 1999, pp. 11-12) The second batch arrived after Jocelyn had called her brother-in-
law, but Jocelyn also told them to leave.

46
 See People v. Reyes, G.R. No. 178300, March 17, 2009, 581 SCRA 691, 718
(citations omitted).

47
 See People v. Pavillare, 386 Phil. 126, 136 (2000).

48
 G.R. No. 199877, August 13, 2012, 678 SCRA 332.

49
 Id. at 348.

50
 TSN, January 14, 1999, p. 64.

51
 G.R No. 175978, February 12, 2009, 578 SCRA 601, 619 citing People v. Timon, G.R.
Nos. 97841-42, November 12, 1997, 281 SCRA 577, 592.

52
 See People, v. Bringas, G.R. No. 189093. April 23, 2010, 619 SCRA 481.

53
People v. Ejandra, G.R. No. 134203, May 27, 2004, 429 SCRA 364, 382.

54
 Guidelines for the Proper Use of the Phrase "Without Eligibility for Parole" in
Indivisible Penalties.

55
 G.R. No. 172707, October 1,2013, 706 SCRA 508, 533.

56
 See People v. Arondain, 418 Phil. 354 (2001).

chanRoblesvirtualLawlibrary

DISSENTING OPINION

LEONEN, J.:

Due to reasonable doubt, I vote for the acquittal of Preciosa Gomez y Campos (Gomez).

Premature media exposure of suspected criminals affects the integrity of the

identification made by a witness. Law enforcers fail to prevent undue influence and
suggestion when they present suspects to the media before the actual identification by
a witness. An irregular out-of-court identification taints any subsequent identification
made in court.

Two men and a woman forcibly took the victim, Edward Tan (Edward), from his
workplace at Kilton Motors in Paranaque City on June 28, 1997.1 One of Edward's
kidnappers, eventually identified as Jerry Pepino y Rueras (Pepino), contacted Edward's
father and Edward's wife to ask for a P40 million ransom.2 After negotiations, the
kidnappers agreed to the ransom of P700,000.00 in exchange for Edward's
liberty.3 Four (4) days after Edward's taking, the kidnappers received the money and
released Edward from his detention.4 chanroblesvirtuallawlibrary

Five (5) months after the incident, Edward and his wife Jocelyn were invited to the
National Bureau of Investigation (NBI) to identify Edward's kidnappers among the
individuals in the custody of the NBI.5 The identification procedure involved a line-up of
seven (7) individuals: five men and two women.6 Both Edward and Jocelyn identified
Pepino,7 while only Edward identified two others: Gomez and a certain Mario Galgo
(Galgo).8chanroblesvirtuallawlibrary

Only Pepino and Gomez were arraigned for the kidnapping of Edward.9 After trial, the
Regional Trial Court convicted both accused for the crime charged.10 chanroblesvirtuallawlibrary

Both Pepino and Gomez filed appeals before the Court of Appeals and this
court.11 Pepino moved to withdraw his appeal,12 which we granted.13 Only Gomez's
appeal is pending resolution with this court.

In her Appellant's Brief14 dated March 12, 2001 and Reply Brief dated January 24,
2005,15 Gomez argued that her guilt could not be proven beyond reasonable
doubt.16 Since Edward's eyes were covered while he was on board the metallic green
Toyota Corolla, there was no certainty that Edward recognized that the woman on the
front seat was Gomez.17 In addition, she argued that even if it were shown that Edward
recognized her as the woman inside the car, her mere presence in the car did not show
that she was part of the conspiracy to commit the offense.18 chanroblesvirtuallawlibrary

Gomez also insisted that there were irregularities when the sole eyewitness identified
her as a perpetrator to the kidnapping. She noted that Edward "did not make any
report to the law enforcement authorities after he [had been] kidnapped."19 Rather, he
reported it to one Teresita Ang See, a civilian.20 There were no affidavits made on the
kidnapping, descriptions of the perpetrator, or a cartographic sketch based on the
narration.21 Hence, there was no official record that the law enforcement authorities
could rely upon to begin investigation on the identity of Edward's abductors.22 chanroblesvirtuallawlibrary

Gomez insisted that the most irregular incident was when she and other individuals
were presented to the media as kidnappers on December 8, 1997 at the Department of
Justice.23 On the following day, December 9, 1997, Edward identified her as a suspect
to the kidnapping.24 This made "the identification ... at the NBI. . . highly suspect
because at that time, the appellant had already been presented to the public and
branded as kidnappers, and viewed by all and sundry before national television
networks, in violation of her constitutional right to be presumed innocent[.]"25 For
Gomez, there was high probability that Edward already saw her in the media reports,
thus making it easier for him to identify her as an abductor.26 chanroblesvirtuallawlibrary

Gomez further argued that her constitutional rights were breached. Her right to be
presumed innocent was violated when she was presented to the media as a person
responsible for the kidnapping.27 Further, her right to due process was violated when
she was subjected to the line-up without counsel. Since she was already presented
before the media as a kidnapper and treated by the police as a suspect, it was just
proper that she should have had a counsel during the line-up.28 chanroblesvirtuallawlibrary

For Gomez, the lack of a prior description and the prejudicial media exposure should be
considered. There was reasonable probability that "these circumstances [caused]
erroneous identification, and . . . resulted in [her] wrongful conviction[.]"29 chanroblesvirtuallawlibrary

Only Edward identified Gomez during the investigation and the trial.30 The line-up that
facilitated Gomez's identification was conducted by the NBI more than five (5) months
after the kidnapping incident.31chanroblesvirtuallawlibrary

On appeal, Gomez questioned the identification procedure that identified her as an

accused in this kidnapping case on the ground that she was already presented to the
media as a suspect a day before the police line-up.32 chanroblesvirtuallawlibrary

Witnesses, during criminal investigations, assist law enforcers in narrowing their list of
suspects. In many instances, the perpetrator is not personally known to a witness but
can be reasonably identified. Identifying perpetrators is not limited to knowing their
names. Familiarity with the facial and physiological features of the perpetrator is
enough.

There are two modes of out-of-court identifications. One mode of out-of-court

identification is the police line-up where the witness selects a "suspect from a group of
persons lined up[.]"34 Another mode of identification is the show-up. In show-ups, only
one person is presented to the witness or victim for identification.35 Show-ups are less
preferred and are considered "an underhanded mode of identification for 'being
pointedly suggestive, generating] confidence where there was none, activating] visual
imagination, and, all told, subverting]"36 the reliability of the eyewitness.

Both the line-up and the show-up are referred to as corporeal identification:37 the body
of the suspect is there for identification. Out-of-court identifications are not limited to
corporeal identifications. Police can use photographs or mug shots to identify the
perpetrator.

Eyewitness identification is affected by "normal human fallibilities and suggestive

influences."' Courts use the totality of circumstances test to ensure the reliability of
any of the modes of out-of-court identification. The test was originally used in the
United States39 but was introduced in this jurisdiction in the 1995 case of People v.
Teehankee, Jr.40 In determining the validity of the out-of-court identification, the
following factors are considered:
(1) the witness' opportunity to view the criminal at the time of the crime; (2) the
witness' degree of attention at that time; (3) the accuracy of any prior description given
by the witness; (4) the level of certainty demonstrated by the witness at the
identification; (5) the length of time between the crime and the identification; and, (6)
the suggestiveness of the identification procedure.41 chanrobleslaw

Teehankee, Jr. involved a high-profile murder. One of the eyewitnesses was the

surviving victim who identified the accused, first, through mug shots while he was still
at the hospital42 and, second, through a line-up of several individuals.43 The accused
claimed that the line-up was irregular because it was conducted in a private residence
and not at the NBI. He also argued that the witness already saw the pictures of the
accused in media reports tying him to the crime, and that the witness' initial description
of the perpetrator was never put in writing. Finally, he argued that the witness only had
five minutes of exposure time to the perpetrator and was inebriated by alcohol at the
time of the crime.44 chanroblesvirtuallawlibrary

This court ruled that the identification still passed the totality of circumstances test.
First, the location of the line-up did not create an irregularity to the actual line-up.
Second, during his testimony in court, the eyewitness stated that since he was
hospitalized from the time of the shootings until the photographic identification, he did
not see news reports regarding the shootings. Third, the NBI could not obtain the
witness' testimony at an earlier time because the witness' tongue was injured then, and
no rule in evidence requires the rejection of a testimony if it was not previously reduced
to writing. Finally, this court ruled that the witness had ample opportunity to see the
perpetrator because the area was well-lit, there was close proximity between the
witness and the perpetrator, and the incident occurred for five whole minutes.45 chanroblesvirtuallawlibrary

The motives of the witness were also considered by this court in Teehankee, Jr. The
absence of an ill motive for the witness to testify against an accused and the ability to
be "unshaken" during vigorous cross-examination lend to the credibility of the
witness.46 This concept of the absence of an ill motive to testify was also used in People
v. Verzosa.47chanroblesvirtuallawlibrary

Several cases have since used the totality of circumstances test in determining the
veracity of an out-of-court identification made by a witness. In light of the events in
this case, it is proper to review each circumstance with depth.

Courts have paid close attention to the witness' opportunity to view the criminal at the
time of the crime and the witness' degree of attention at that time. Courts make an
assessment of a witness' credibility based on the conditions of visibility and the amount
of time the witness was exposed to the perpetrators. In People v. Pavillare:48 chanroblesvirtuallawlibrary

Both witnesses had ample opportunity to observe the kidnappers and to remember
their faces. The complainant had close contact with the kidnappers when he was
abducted and beaten up, and later when the kidnappers haggled on the amount of the
ransom money. His cousin met Pavillare face to face and actually dealt with him when
he paid the ransom money. The two-hour period that the complainant was in close
contact with his abductors was sufficient for him to have a recollection of their physical
appearance. Complainant admitted in court that he would recognize his abductors if he
s[aw] them again and upon seeing Pavillare he immediately recognized him as one of
the malefactors as he remember[ed] him as the one who blocked his way, beat him up,
haggled with the complainant's cousin and received the ransom money. As an indicium
of candor the private complainant admitted that he d[id] not recognize the co-accused,
Sotero Santos for which reason the case was dismissed against him.49 chanrobleslaw

The majority in this case also cited Pavillare because it is instructive of the opportunity

to adequately see and remember the facial features of a perpetrator not personally
known to the victim or witness.50 In Pavillare, the witness' several opportunities for
interaction with the perpetrators of the crime meant that the witness would remember
what the perpetrators looked like. In Teehankee, Jr., the five-minute incident on a well-
lit street in the evening was deemed as sufficient time for the witness to remember the
face of the perpetrator.

On the other hand, in  People v. Gamer,51 the crime occurred at 8:30 p.m., and the
prosecution's evidence was inconsistent on whether the crime scene was lit or not.
Hence, this court ruled that the out-of-court identification was not reliable.52 chanroblesvirtuallawlibrary

Aside from exposure time, extraordinary capabilities of the witness in recalling events
should also be considered. In People v. Sanchez,53 this court took note of important
details about the witness that indicated his capability to recall. Sanchez involved the
theft of an armoured car, and the witness, a trained guard, was presumed to have the
ability to be alert about his surroundings during an attack.54
chanroblesvirtuallawlibrary

The importance of the attentiveness of a witness was underscored by Associate Justice

Antonio T. Carpio's Dissenting Opinion in Lumanog, et al. v. People.55 The case involved
an ambush.56 The witness, a security guard, was instructed by one of the perpetrators
to stay low.57 Nevertheless, the witness testified to have seen the incident and identified
in court six (6) perpetrators.58 The majority affirmed the credibility of the
witness.59 However, in Justice Carpio's Dissenting Opinion, he stated:

We agree with the accused that the swiftness by which the crime was committed and
the physical impossibility of memorizing the faces of all the perpetrators of the crime
whom the witness saw for the first time and only for a brief moment under life-
threatening and stressful circumstances incite disturbing doubts as to whether the
witness could accurately remember the identity of the perpetrators of the crime.60 chanroblesvirtuallawlibrary

II

Advances in cognitive psychology and studies on eyewitness testimonies show that the
degree of a witness' attentiveness in perceiving an event is influenced by various
factors, including exposure time, frequency of exposure, level of violence of the event,
the witness' stress levels and expectations, and the witness' activity during the
crime.61
chanroblesvirtuallawlibrary

The level of violence of the event tends to influence the witness' stress levels. One area
of continuous psychological research is the effect of the presence of a weapon on the
attention of an individual to an incident. Since the 1970s, psychologists hypothesized
that the presence of a weapon captures a witness' attention and reduces the witness'
ability to pay attention to peripheral details (such as the facial features of the
individuals brandishing the weapon).62 The research model often involves two groups: a
group that witnesses an incident where a gun is used, and another group that sees the
same incident but with no weapon used (usually a pencil or syringe is used in lieu of a
gun). Both groups are asked to identify the perpetrator in a line-up. Results would show
that the presence of a weapon makes a statistically significant difference in the
accuracy of eyewitness identification:63chanroblesvirtuallawlibrary

[T]he influence of [a weapon focus] variable on an eyewitness's performance can only

be estimated post hoc. Yet the data here do offer a rather strong statement: To not
consider a weapon's effect on eyewitness performance is to ignore relevant information.
The weapon effect does reliably occur, particularly in crimes of short duration in which a
threatening weapon is visible. Identification accuracy and feature accuracy of
eyewitnesses are likely to be affected, although, as previous research has noted . . .
there is not necessarily a concordance between the two.64 chanrobleslaw

The results of these scientific studies conducted on weapon focus have not yet
permeated into some of this court's decisions. In People v. Sartagoda:65 chanroblesvirtuallawlibrary

[T]he most natural reaction for victims of criminal violence [is] to strive to see the looks
and faces of their assailants and observe the manner in which the crime was
committed. Most often the face of the assailant and body movements thereof, create a
lasting impression which cannot easily be erased from their memory.66 chanrobleslaw

We should now start taking greater caution in applying Sartagoda and other related

cases that proclaim that victims have a natural propensity to remember the faces of
their assailants. The stress experienced by victims and witnesses during the
commission of a crime might not always affect their perception positively. Hence, it is
important for courts to evaluate the totality of circumstances in the identification
process.

Aside from the opportunity and ability of the witness to perceive the crime and the
identifying features of the assailant, the accuracy of any prior description given by the
witness to investigators must be considered by courts. A witness is considered more
credible when his or her initial description of the accused, either through words or
through a cartographic sketch, matches the actual appearance of a suspect selected
during a photograph or corporeal line-up. This court, however, has exercised leniency in
testing this condition.

In Lumanog, et al, this court allowed discrepancies between the description provided by
the main prosecution witness in an affidavit executed immediately after the crime and
the actual appearance of the suspects. This court stated that estimate of age cannot be
made accurately. It was possible that the accused was exposed to sunlight due to his
occupation, which was why he appeared to the witness older than his actual age. The
majority also accepted the explanation of the prosecution that the reason why the other
accused was fair-skinned, contrary to the initial description of the witness that he was
dark-skinned, was because of the prolonged incarceration of the accused before trial.67

Another circumstance to be considered is the level of certainty demonstrated by the

witness at the identification. The level of certainty must be demonstrated at the initial
identification made by the witness during investigation. It is not the certainty of the
witness during trial that courts should pay attention to.

Certainty of the witness is often tested during cross-examination. Thus, in many cases,
this court finds a witness credible because of a straight and candid recollection of the
incident that remains unhampered by the rigors of cross-examination.68 chanroblesvirtuallawlibrary

However, this circumstance should never be evaluated in a vacuum. A witness who is

certain about seeing the crime but uncertain about the facial features of its perpetrators
may sound certain about both the crime and the identity of the perpetrator during trial.
This is because by the time a witness takes the witness stand, he or she has already
narrated the incident to the police, the public prosecutor and, at times, private
prosecutors and members of the press. He or she becomes "certain" not because of the
ability to perceive at the time of the incident, but because he or she has become an
experienced storyteller of the narrative and has already confronted questions that may
arise during cross-examination with rehearsed answers. The ability of the witness to
consistently identify the perpetrator throughout trial does not necessarily mean that he
or she correctly identified the perpetrator at the start of the investigation.

Another circumstance that is evaluated is the length of time between the crime and the
identification. People's memories tend to fade through time.69 It is ideal that
prosecution witnesses identify the suspect immediately after the crime. An identification
made two (2) days after the criminal incident is found to be acceptable.70 This court
found that a corporeal identification made five and a half months might not be as
reliable.71
chanroblesvirtuallawlibrary

Memory is not affected only by the mere passage of time. It is also affected by the
interactions of the witness with other individuals relating to the event.72 Information
acquired by the witness after the incident can reconstruct the way the witness recalls
the event. According to Elizabeth F. Loftus, a cognitive psychologist, "[p]ost[-]event
information can not only enhance existing memories but also change a witness's
memory and even cause nonexistent details to become incorporated into a previously
acquired memory."73 chanroblesvirtuallawlibrary

Hence, the last circumstance of suggestiveness of the identification procedure  should

have a great influence whether courts should admit an out-of-court identification. Both
verbal and non-verbal information might provide improper suggestions to a witness:

A police officer may tell a witness that a suspect has been caught and the witness
should look at some photographs or come to view a lineup and make an identification.
Even if the policeman does not explicitly mention a suspect, it is likely that the witness
will believe he is being asked to identify a good suspect who will be one of the members
of the lineup or set of photos. . . . If the officer should unintentionally stare a bit longer
at the suspect, or change his tone of voice when he says, "Tell us whether you think it
is number one, two, THREE, four, five, or six," the witness's opinion might be
swayed.74 chanrobleslaw

In evaluating suggestiveness of the out-of-court identification, this court considers prior

or contemporaneous75 actions of law enforcers, prosecutors, media, or even fellow
witnesses.
In People v. Baconguis,76 an accused to a murder was acquitted because the
identification was tainted by improper suggestion.77 The witness was made to identify
the suspect inside a detention cell where only the accused was the detainee.78 However,
in People v. Algarme, et al.,79 even though the identification was also made inside the
detention cell rather than through a formal line-up, this court upheld the propriety and
reliability of the identification since there were a number of detainees inside the
cell.80
chanroblesvirtuallawlibrary

In People v. Escordial,81 the crime involved was robbery with rape.82 The rape victim
and her companions were blindfolded during the entire ordeal.83 However, the rape
victim felt a "rough projection"84 on the back of the perpetrator. The perpetrator also
spoke to the victims, so his voice was familiar to them.85 The narration of facts included
the investigative process in bringing the perpetrator to custody. After interviewing a
few individuals, the investigating police officer had an idea of who he was supposed to
look for. He "found accused-appellant [in a] basketball court and 'invited' him to go to
the police station for questioning."86 The rape victim was already at the police station.
After seeing accused-appellant enter the station premises, the rape victim requested to
see the back of the accused-appellant. The accused-appellant took his shirt off. After
examining the back of the accused-appellant and seeing a "rough projection" on it, the
rape victim talked to the police and confirmed that the accused-appellant was the man
who attacked her. The police brought in the other witnesses to identify the accused.
Four of the witnesses were brought to the jail cell where the accused-appellant was
detained, and the witnesses pointed consistently to accused-appellant despite his being
with four other individuals in the jail cell.87 chanroblesvirtuallawlibrary

This court found that the show-up (with respect to the rape victim) and the line-up
(with respect to the other witnesses) in Escordial were irregular, and the out-of-court
identification could have been subject to objections for inadmissibility. However, these
objections were not raised during trial.88
chanroblesvirtuallawlibrary

Despite the objections in the out-of-court identification not being raised during trial, the
majority in Escordial found reasonable doubt and acquitted the accused.89 The rape
victim was blindfolded throughout her ordeal. The reliability of her identification was
diminished by her own admission that she could only recognize her perpetrator through
his eyes and his voice. This court reasoned that given the exposure of the rape victim
to the perpetrator, it would have been difficult for her to identify the person
immediately. It was the improper suggestion made by the police officer that might have
aided the witness to identify the accused-appellant as the perpetrator.90 The Decision
cited a journal article to explain:

Social psychological influences. Various social psychological factors also increase the

danger of suggestibility in a lineup confrontation. Witnesses, like other people, are
motivated by a desire to be correct and to avoid looking foolish. By arranging a lineup,
the police have evidenced their belief that they have caught the criminal; witnesses,
realizing this, probably will feel foolish if they cannot identify anyone and therefore may
choose someone despite residual uncertainty. Moreover, the need to reduce
psychological discomfort often motivates the victim of a crime to find a likely target for
feelings of hostility.

Finally, witnesses are highly motivated to behave like those around them. This desire to
conform produces an increased need to identify someone in order to show the police
that they, too, feel that the criminal is in the lineup, and makes the witnesses
particularly vulnerable to any clues conveyed by the police or other witnesses as to
whom they suspect of the crime.91 (Emphasis in the original)

In People v. Pineda,92 six perpetrators committed robbery with homicide inside a

passenger bus.93 One of the passengers recalled that one of the perpetrators was called
"Totie" by his fellow felons. The police already knew that a certain Totie Jacob was a
member of the robbery gang of Rolando Pineda. At that time, Rolando Pineda and
another companion were detained for another robbery. The police brought the
photographs of Rolando Pineda and his companion to the witness, and the witness
positively identified the two as involved in the robbery with homicide.94 chanroblesvirtuallawlibrary

This court found that the identification procedure in this case was unacceptable.95 It
introduced the two rules for out-of-court identifications with the use of photographs:

The first rule in proper photographic identification procedure is that a series of

photographs must be shown, and not merely that of the suspect. The second rule
directs that when a witness is shown a group of pictures, their arrangement and display
should in no way suggest which one of the pictures pertains to the suspect.96 chanrobleslaw

Without compliance with these rules, any subsequent corporeal identification made by
the witness may not be from the recollection of the criminal incident. Rather, it will
simply confirm false confidence in the suggestive identification of the photograph shown
to the witness.

Pineda also introduced a list of 12 danger signals that might indicate erroneous

identification. The list is not exhaustive but complements the totality of circumstances
rule. These danger signals are:

(1) the witness originally stated that he could not identify anyone;

(2) the identifying witness knew the accused before the crime, but made no accusation
against him when questioned by the police;

(3) a serious discrepancy exists between the identifying witness' original description
and the actual description of the accused;

(4) before identifying the accused at the trial, the witness erroneously identified some
other person;

(5) other witnesses to the crime fail to identify the accused;

(6) before trial, the witness sees the accused but fails to identify him;

(7) before the commission of the crime, the witness had limited opportunity to see the
accused;

(8) the witness and the person identified are of different racial groups;
(9) during his original observation of the perpetrator of the crime, the witness was
unaware that a crime was involved;

(10) a considerable time elapsed between the witness' view of the criminal and his
identification of the accused;

(11) several persons committed the crime; and

(12) the witness fails to make a positive trial identification.97 chanrobleslaw

Pineda emphasized that "[t]he more important duty of the prosecution is to prove the
identity of the perpetrator and not to establish the existence of the crime."98 Proving
the identity of the perpetrator is a difficult task because of the overreliance of our
criminal procedure on testimonial evidence rather than physical evidence. Testimonial
evidence is often tainted by improper suggestion. Legal scholar Patrick M. Wall observes
that improper suggestion "probably accounts for more miscarriages of justice than any
other single factor[.]"99 Marshall Houts, who served the Federal Bureau of Investigation
and the American judiciary, agrees with Patrick M. Wall and considers eyewitness
identification as "the most unreliable form of evidence[.]"100 chanroblesvirtuallawlibrary

People v. Rodrigo101 presented the same circumstance as Pineda. The police presented a

single photograph to the eyewitness for identification of the perpetrator of a robbery
with homicide. The witness tagged the man in the photo as one of the perpetrators.
This court stated that despite the in-court identification made by the witness, it was
influenced by the impermissible suggestion through the photographic identification that
had preceded the trial. This court ruled that a suggestive identification violates the right
of the accused to due process because the accused becomes denied of a fair trial:102 chanroblesvirtuallawlibrary

The greatest care should be taken in considering the identification of the accused
especially, when this identification is made by a sole witness and the judgment in the
case totally depends on the reliability of the identification. This level of care and
circumspection applies with greater vigor when, as in the present case, the issue goes
beyond pure credibility into constitutional dimensions arising from the due process
rights of the accused.
....

The initial photographic identification in this case carries serious constitutional law
implications in terms of the possible violation of the due process rights of the accused
as it may deny him his rights to a fair trial to the extent that his in-court identification
proceeded from and was influenced by impermissible suggestions in the earlier
photographic identification. In the context of this case, the investigators might not have
been fair to Rodrigo if they themselves, purposely or unwittingly, fixed in the mind of
Rosita, or at least actively prepared her mind to, the thought that Rodrigo was one of
the robbers. Effectively, this act is no different from coercing a witness in identifying an
accused, varying only with respect to the means used. Either way, the police
investigators are the real actors in the identification of the accused; evidence of
identification is effectively created when none really exists.103 chanrobleslaw

This court was unanimous in both Pineda (En Bane) and Rodrigo (Second Division).
However, it was divided in the highly publicized case of Lumanog, et al.104  Lumanog, et
al. involved the ambush of the former Chief of the Metropolitan Command Intelligence
and Security Group of the Philippine Constabulary, Colonel Rolando N.
Abadilla.105 During investigation, a security guard became the principal prosecution
witness.106 The police showed a man's photograph to the guard and asked him if the
man was among the several men who conducted the ambush. The guard refused to
identify the perpetrator without seeing him in person.107 A police line-up was conducted,
and the guard identified two of the perpetrators.108 chanroblesvirtuallawlibrary

One of the accused claimed that the line-up was only composed of the accused and
police officers who were in their uniforms, making the line-up grossly suggestive to the
accused.109chanroblesvirtuallawlibrary

This court, with a majority of nine, voted to affirm the conviction of the accused
in Lumanog, et al.  It ruled that the positive identification made by the guard passed the
totality of circumstances test. The irregularities in the line-up were corrected by the
independent in-court identification.110 chanroblesvirtuallawlibrary

In his Dissenting Opinion, Justice Carpio emphasized that the identification of the
accused was tainted with impermissible suggestion since the guard-witness had been
shown a single photograph of the accused before he pinpointed the same man on the
photograph as one of the perpetrators.111 According to Justice Carpio, "the police
primed and conditioned"112 the witness in identifying the accused, which was a violation
of the right of the accused to due process.113 chanroblesvirtuallawlibrary

Justice Carpio's Dissenting Opinion also discussed the effect of media exposure on
conditioning the memory of the witness.114 In Lumanog, et al. all of the perpetrators
were presented to the media 11 days after the crime. The news made headlines
because the police proudly reported that the case had been closed.115 According to
Justice Carpio:

[T]he police arrested the accused, and allowed the media to take their pictures with
their names written on boards around their necks. The media promptly published these
pictures in several newspapers. Thus, at that time, the faces of the accused were
regularly splashed all over the newspapers and on television screens in news
reports. Alejo could not have missed seeing the faces of the accused before he
identified them in court. To rule otherwise strains credulity.

Alejo, as the star witness in this case, must naturally be interested to look, or even
stare, at the faces of the alleged killers to make sure he identifies them in court.
Assuming Alejo failed to personally see the faces of the accused in the newspapers or
television, which is highly improbable, if not totally impossible, his family and friends, if
not the police, would have provided him with photographs of the accused from the
newspapers for easier identification later in court. Surely, Alejo had ample time to
memorize and familiarize himself with the faces of the accused before he testified in
court and identified Lumanog, Santos, Rameses, Joel, and Fortuna as the killers of
Abadilla.
....

. . . The media exposure of the accused casts serious doubts on the integrity of Alejo's
testimony on the identification of the murderers. Such doubts are sufficient to rule that
Alejo's in-court identification of the accused as the perpetrators of the crime is neither
positive nor credible. "It is not merely any identification which would suffice for
conviction of the accused. It must be positive identification made by a credible witness,
in order to attain the level of acceptability and credibility to sustain moral certainty
concerning the person of the offender."116 (Emphasis in the original)

Generally, suggestiveness in the identification procedure should always be proven by

evidence. If an allegation of suggestiveness is not proven, this court often affirms the
conviction.117 In Pavillare, this court ruled that the appellant who argued the
impropriety of the police line-up should have presented during trial the police officers
who conducted the line-up.118 chanroblesvirtuallawlibrary

However, when the suggestiveness is principally due to a premature media presentation

of the accused coupled with the accusation by law enforcers, it is reasonable to assume
that the subsequent identification is already tainted. chanRoblesvirtualLawlibrary

III

Adopting the totality of circumstances test and the arguments presented by Gomez and
the Solicitor General, the prosecution witness, Edward, could not have positively
identified Gomez beyond reasonable doubt.

Indeed, the danger signs discussed in  Pineda are present in the out-of-court
identification. First, the other witness in this case, Jocelyn, failed to identify Gomez.
Second, Edward is Chinese-Filipino, a different race from Gomez, who is Malay-
Filipino.119 Cross-racial identification is often a problem due to the general observation
in psychology that "people are better at recognizing faces of persons of their own race
than a different race."120 Third, a considerable amount of time, five months, had
elapsed before identification was made. Fourth, several persons committed the crime,
making it more difficult to remember faces.

As pointed out in the Decision, Edward might have had ample opportunity to observe
the features of Gomez.121 In his narration, he encountered Gomez three (3) times
during the ordeal: first, when he was visited by the three perpetrators at Kilton Motors
Corporation; second, when they boarded the vehicle that was driven away from Kilton
Motors Corporation; and lastly, when he was released from captivity.

Edward first encountered the female kidnapper as a "customer" of his business selling
trucks. As Edward narrated during his testimony:

[ATTY. CHUA:]

Q: Can you tell this Court how the kidnapping was initiated?

[EDWARD TAN:]

A: At around 1:00 o'clock in the afternoon, there were three persons who entered the
office of Kilton Motors and pretended to be customers.

Q: What was the gender of these three people that you are referring to?
A: Two men and a woman.

Q: After they pretended to be customers, tell us what happened?

A: They told me they were going to pay but instead of pulling out money, they pulled
out a gun.

Q: How many people pulled out guns as you said?

A: Only one, sir.

Q: Will you look around this courtroom now and tell us if the person who pulled out a
gun is in court?

A: (WITNESS POINTED TO A PERSON AT THE RIGHT SECTION, SECOND ROW, WHO

WHEN ASKED HIS NAME ANSWERED AS JERRY PEPINO)

ATTY. CHUA:

Now, you said that there were two men and a woman who went up the Kilton Motors
office and you pointed to one of the men as Jerry Pepino, can you look around this
courtroom and tell us if any of the two others are in court?

A: (WITNESS POINTED TO A WOMAN INSIDE

THE COURTROOM WHO WHEN ASKED HIS [sic] NAME ANSWERED AS PRECIOSA
GOMEZ)

Q: What about the third person, is he in court?

A: He is not in court, sir.

Q: You said that Mr. Pepino pulled out his gun, what happened after he pulled out his
gun?

A: He told me just to be quiet and go with him.122chanrobleslaw

Edward's first encounter with Gomez as an ordinary customer was in the presence of a
weapon. The presence of a gun throughout the ordeal at Kilton Motors makes it
doubtful that Edward remembered peripheral details about the female kidnapper due to
the weapon-focus effect.

In the second encounter, Edward's sight was impaired. After he had boarded the
vehicle, his eyes were covered with surgical tape and sunglasses:

[ATTY. CHUA:]

Q: After they boarded you in the car, how long did the car travel?
[EDWARD TAN:]

A: About two and a half hours.

Q: When they boarded you inside that car, what did they do to you, Mr. Witness?

A: They put surgical tape on my eyes and also sunglass.

Q: Do you remember how many people were in that car including yourself?

A: Around five, sir.

Q: Can you tell us who was in the driver's seat of that car?

A: I don't know the driver.

Q: What was the sex?

A: A male, sir.

Q: Who was at the passenger front seat of the car?

A: It was Preciosa Gomez.

Q: Where were you seated?

A: I was at the middle of the backseat.

Q: But you said that you have surgical tape and sunglass in your eyes, how did you
know that you were already in Quezon City?

A: It was just a taper sir, and so, when you close your eyes, you would be able to see.

Q: After you arrived in that particular house which you presumed to be in Quezon City,
what happened?

A: We alighted the car, I was brought into a room, my handcuff was removed, as well
as the surgical tape and the sunglass and a chain was put on my feet.

Q: What about your blindfold?

A: It was also removed.123 chanroblesvirtuallawlibrary

Edward declared during trial that despite the eye cover, he was still able to see when
he squinted his eyes.124 He was even able to identify the area surrounding the
safehouse.1 cralawred

Edward's third encounter with the female kidnapper was also under similar
circumstances: ChanRoblesVirtualawlibrary
[ATTY. CHUA:]

Q: You said that you were released sometime on July 1, 1997 at around 6:00 P.M., Mr.
Witness, can you describe to us how you were released by the kidnappers?

[EDWARD TAN:]

A: I was boarded on our car, a surgical tape and sunglass was placed on my eyes and
we drove around for about thirty minutes.

Q: After thirty minutes, what happened?

A: We stopped and I was told to remove my blindfold after five minutes and drove my
car in going home.

Q: What did you do after they instructed you to remove your blindfold after five
minutes?

A: When I removed my blindfold, they were no longer there and so I drove home.

Q: On the way from the house where they kept you to UP Diliman, do you remember
how many people were with you inside the car?

A: We were also five.

Q: Do you remember how many men and how many women were in that car?

A: One female and three males.

Q: And who was that female that you were referring to?

A: Preciosa Gomez.

Q: How about the three men?

A: I don't know them.126 chanrobleslaw

When Edward was released from his captivity, he narrated that he saw the kidnappers
in the car. Whether this was before or after his eyes were covered was not clear.

When Edward and Jocelyn were at the NBI office to identify the kidnappers, there were
only two female suspects in the line-up.127 The lineup, therefore, had all the suggestive
features of a show-up.

Gomez argues that the identification procedure was tainted because she had been
exposed to the media immediately before the day Edward identified her as his
kidnapper.128chanroblesvirtuallawlibrary
Defense witness Reynaldo Pepino testified during cross-examination that after their
arrest, they were presented to the media as "kidnappers":

ATTY. CORONEL:

Q. Do you remember approximately what time were you brought to the DOJ?

A. Morning ma'am.

Q. Of December 8?

A. Yes ma'am.

Q. And who were with you when you were brought to the DOJ?

A. With Preciosa ma'am.

Q. With Preciosa only?

A. There were others ma'am but I can not remember them.

Q. How about your brother, was he brought with you to the DOJ?

A. No he was not with us at that time ma'am. He was with the NBI at that time.

Q. So at that time you were allegedly presented to the media as kidnappers, it was only
you and Preciosa whom you knew?

A. No. I said only two (2) of us from Camp Crame and my brother came from the NBI.
And all of us were presented to the media, at the DOJ.

Q. So at that time that you were presented at the DOJ, your brother Jerry was already
with you?

A. Yes ma'am. They were already there ahead of us.129 (Emphasis supplied)

The prosecution did not present countervailing evidence to show that this prejudicial
exposure to the media did not take place. Hence, there was a presumption that media
reported the appearances of these arrested "kidnappers" and were immediately
featured in the news across varying media platforms. At that time, high media attention
was given to the crackdown of kidnapping, which was a prevalent social ill.130
chanroblesvirtuallawlibrary

The appearance of the alleged kidnappers could have influenced their memories on the
kidnapping incident. On the day of the identification, December 9, 1997, Tuesday,
kidnap-for-ransom-related news were featured in the headlines for the
broadsheets.131 In the Philippine Daily Inquirer, the article included a photograph with
the caption: "SUBDUED kidnap-for-ransom gang member Diosdado Avila and other
members of his gang at the Department of Justice Monday."132 The photograph did not
feature all of the kidnapping suspects arrested at that time. However, other visual
reports, such as a television broadcast, might have featured all of those who were
arrested for kidnapping, including Pepino and Gomez.

Unlike in Teehankee, Jr. where the witness categorically testified not seeing media
reports before the out-of-court identification, Edward did not make a similar testimony.

The probability that Edward saw the news reports before the line-up identification
exists. The prejudicial media exposure is enough to create reasonable doubt on the
identification of Gomez. The image of Gomez being labelled as a kidnapping suspect by
the press makes an impression on its viewers. The influence or suggestiveness of this
impression is subtle and unconscious.133 It is the same kind of influence that the
photographs in Pineda and Rodrigo made to the mind of the witnesses, which tainted
with infirmity the subsequent police line-up. The witnesses in these cases were
conditioned to associate the faces on the photographs to the crime.

Teehankee, Jr. introduced the totality of circumstances test as the standard for
evaluating out-of-court testimonies because this court recognized that "con-uption of
out-of-court identification contaminates the integrity of in-court identification[.]"134 In
Gamer, the witness' identification failed on the first level since the conditions at that
time did not grant the witness ample opportunity to observe and remember the
appearance of the accused. Hence, this court stated that "the in-court identification of
the appellant. . . could have been tainted by the out-of-court (police line-up)
procedure[.]"135chanroblesvirtuallawlibrary

However, this court have also held that irregularities in out-of-court identifications are
cured through in-court identifications.136 In People v. Macam,137 despite finding the
illegality of the line-up, this court stated that since the appellants did not object during
trial, the prosecution did not need to show that the in-court identification was made
independently from the invalid line-up.138 chanroblesvirtuallawlibrary

It is more rational to maintain the presumption that a tainted out-of-court identification

corrupts the in-court identification. The in-court identification of a witness—unless he or
she has two separate brains—is certainly influenced by a preceding out-of-court
identification, unless the prosecution can show that there has been an independent in-
court identification.139 chanroblesvirtuallawlibrary

Convictions can be sustained even when there is illegal identification as long as there
are other evidence tying the crime to the accused. In People v. Ibañez,140 the witness
who identified the accused in the line-up died during the trial.141 Only the NBI agent
testified without providing details regarding the line-up. Hence, this court found that
the out-of-court identification was unreliable.142 Despite this pronouncement, the
conviction was affirmed due to the presence of circumstantial evidence.143 chanroblesvirtuallawlibrary

No other evidence on the record can prove the guilt of Gomez. This court notes that
during investigation, Edward identified Pepino, Gomez, and Galgo. The original
Information144 included Pepino and Gomez, but not Galgo. A perusal of the records
shows that Galgo executed a Sinumpaang Salaysay145 dated December 7, 1997, naming
Pepino, Gomez, and others as perpetrators of the "Kilton Motors" kidnapping. However,
when subpoenaed by the court, Galgo did not appear to testify.146 His Sinumpaang
Salaysay cannot be considered by this court for being hearsay.147 Hence, this court is
left to rely on the identification made by Edward. chanRoblesvirtualLawlibrary
 IV

Law enforcement agents must conduct their investigation properly to avoid instances
when the line-up bears doubtful validity due to the presence a of suggestive influences.
For a line-up to be truly fair, it should be composed of individuals—including the
suspect—who fit the description of the perpetrator as provided by a witness. If there is
a high probability that a random individual merely relies on the prior description of the
eyewitness to select a suspect from a line-up, this line-up is not fair.148 A line-up is only
balanced if, in a line-up of six individuals, the probability that the random individual
identifies the suspect is not more than 1/6.149 chanroblesvirtuallawlibrary

To supplement the totality of circumstances test, courts must evaluate whether there
are undue suggestions made during out-of-court-identification. The following rules
should be considered by the courts:

First, courts must determine whether the police officers or NBI agents prevent
members of the press from photographing or videotaping suspects before witness
identification. Undue influence may be present if there is evidence that the witnesses
were able to view the visual press coverage prior to identification.150 chanroblesvirtuallawlibrary

Second, courts must check if the line-up is composed of a sufficient number of

individuals. As much as possible, it must be composed of at least five to six
individuals.151 chanroblesvirtuallawlibrary

Third, if photographs are available, courts can also evaluate if the individuals in the
line-up meet the minimum descriptions of appearance provided by the witness at the
start of the investigation. If the police finds a suspect through investigating methods
other than by the description given by the witness, members of the line-up should be of
the same race or color,152 age range, gender expression, build, and appearance153 of the
suspect.154 No height markers should be placed.155 chanroblesvirtuallawlibrary

If there is more than one suspect, they should be subjected to separate line-ups
composed of different individuals in order to reduce suggestiveness. If the police
officers can conduct only one line-up, members of the line-up must have decoys of the
same race or color, age range, gender expression, build, and appearance of the
different suspects.

The general rule is that it should not be easy for the witness to single out a suspect.

Fourth, if it is difficult to find individuals with the same build and appearance of the
suspects, courts should still accept out-of-court corporeal identification as long as the
outward appearance of the members of the lineup does not suggest who the suspects
are. Hence, if police officers are needed to supplement the line-up composition, they
must wear civilian clothes.156 The suspected individual should not be handcuffed157 or be
in a detainee's uniform unless identification is made inside a jail cell occupied by other
detainees.158chanroblesvirtuallawlibrary

Fifth, courts must check if the police officers or NBI agents have communicated any
information that may suggest that one of the individuals in the line-up is a suspect.159 chanroblesvirtuallawlibrary
Sixth, courts should be aware of how several witnesses identify the accused. Ideally, if
there is more than one witness, witnesses should identify the perpetrator from the line-
up one at a time. A witness should not be privy to the other witness' identification;
otherwise, this may taint his or her perception.160 chanroblesvirtuallawlibrary

These rules will help courts determine if there has been suggestiveness in the out-of-
court corporeal identifications. This court recognizes that not all out-of-court corporeal
identifications are made through line-ups. While the witness is being interviewed and
another individual is brought to the police station, the witness may immediately
recognize the other individual as the perpetrator. There are no undue suggestions in
this example because an individual being brought to the station can either be a suspect
or witness, and no external influence prompts the witness to point at the individual as
the perpetrator.

Prevalence of kidnapping instills fear among citizens, a type of fear that makes citizens
curtail their own personal liberties to provide for their own security. However, the habit
of presenting the accused to the media immediately after arrest poses an equal threat
to the personal liberty—which is protected by our Constitution—of an individual who
may be accused of committing a crime that he or she did not do. Police officers should
improve their standards and protocols in order to improve the proper prosecution of
those accused of committing deplorable crimes like kidnapping, as well as to balance
the interests of victims and of the accused.

Gomez is entitled to an acquittal. On the other hand, Pepino's withdrawal of his appeal
makes it unnecessary for this court to rule on his guilt. In any case, Pepino's
involvement in the commission of the crime was established and he was identified by
another witness.

ACCORDINGLY, I vote to ACQUIT Preciosa Gomez y Campos.

Endnotes:

1
 TSN, January 14, 1999, pp. 4-10; TSN, January 28, 1999, pp. 5-15.

2
 TSN, January 14, 1999, pp. 13-14.

3
 Id. at 15-20.

4
 TSN, January 14, 1999, pp. 13-23; TSN, January 28, 1999, pp. 17-20.

5
 RTC records, p. 24, Edward Tan's Sinumpaang Salaysay.

6
 Id. at 143, 145, and 147, photographs of the line-up.

7
 TSN, January 14, 1999, pp. 6-7 and 45^8; TSN, January 28, 1999, p. 22.

8
 TSN, January 28, 1999, pp. 21-22. Mario Galgo executed a Sinumpaartg Salaysay
(RTC records, pp. 51-55) dated December 7, 1997, naming both Pepino and a certain
"Fe" Gomez ("Fe" is Preciosa Gomez's alias according to other NBI documents) as
perpetrators of the "Kilton Motors" kidnapping (Id. at 53 and 132). However, when
subpoenaed by the Regional Trial Court, Galgo did not appear to testify (Id. at 241 and
243).

9
 CA rollo, p. 17.

10
 Id. at 16-31. The case was docketed as Crim. Case No. 97-946. The Decision dated
May 15, 2000 was penned by Judge Zosimo V. Escano.

11
 Id. at 49-59, Preciosa Gomez's Appellant's Brief, and 118-153, Jerry Pepino's
Appellant's Brief.

12
  Rollo, p. 147, Jerry Pepino's Urgent Motion to Withdraw Appeal.

13
 Id. at 246, Supreme Court Resolution dated June 10, 2014.

14
 CA rollo, pp. 49-59.

15
 Id. at 224-234. However, the document was received by this court on January 24,
2006.

16
 Id. at 54-58, Preciosa Gomez's Appellant's Brief, and 225-228, Preciosa Gomez's
Reply Brief.

17
 Id. at 54-55, Preciosa Gomez's Appellant's Brief.

18
 Id. at 55.

19
 Id. at 225, Preciosa Gomez's Reply Brief.

20
 Id.

21
 Id. at 225-226.

22
 Id. at 226.

23
 Id.

24
 Id.

25
 Id.

26
 Id. at 227.

27
 Id. at 229.

28
 Id. at 229-230.

29
 Id. at 230.
30
 Id. at 225.

31
 Id. at 226.

32
 Id. at 226-227.

33
People v. Verzosa, 355 Phil. 890 (1998) [Per J. Kapunan, Third Division]:
"Identification of a person is not established solely through knowledge of the name of a
person. Familiarity with physical features particularly those of the face, is actually the
best way to identify a person. One may be familiar with the face but not necessarily the
name." (Id. at 904).

34
People v. Teehankee, Jr., 319 Phil. 128, 180 (1995) [Per J. Puno, Second Division].

35
People v. Escordial, 424 Phil. 627, 653 (2002) [Per J. Mendoza, En Banc].

36
 Id. at 658-659, citing People v. Niño, 352 Phil. 764, 771-772 (1998) [Per J. Vitug,
First Division].

37
 Patrick M. Wall, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 26-65 (1965).

38
People v. Teehankee, Jr., 319 Phil. 128, 179 (1995) [Per J. Puno, Second Division].

39
Stovall v. Denno, 388 U.S. 293, 302 (1967) originally used the term "totality of the
circumstances." This was reiterated in Neil v. Biggers, 409 U.S. 188, 199-200 (1972)
where it identified factors to be considered in the "totality of circumstances."

40
 319 Phil. 128 (1995) [Per J. Puno, Second Division].

41
 Id. at 180.

42
 Id. at 181.

43
 Id. at 151.
44
 Id. at 178-179.

45
 Id. at 180-182.

46
 Id. at 182.

47
 355 Phil. 890, 905 (1998) [Per J. Kapunan, Third Division].

48
 386 Phil. 126 (2000) [Per Curiam, En Banc].

49
 Id. at 144.

50
 Ponencia, p. 9.

51
 383 Phil. 557 (2000) [Per J. Quisumbing, Second Division],
52
 Id. at 569-571.

53
 318 Phil. 547 (1995) [Per J. Kapunan, First Division].

54
 Id. at 557-558.

55
 644 Phil. 296 (2010) [Per J. Villarama, Jr., En Banc].

56
 Id. at 332.

57
 Id. at 351.

58
 Id. at 351-352.

59
 Id. at 397-402.

60
 J. Carpio, Dissenting Opinion in Lumanog, et al. v. People, 644 Phil. 296, 451 (2010)
[Per J. Villarama, Jr., En Banc].

61
 Elizabeth F. Loftus, EYEWITNESS TESTIMONY 23-51 (1996).

62
 Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16
LAW AND HUMAN BEHAVIOR 413, 414 (1992).

63
 Id. at 420. The author surveyed research material that used this methodology.

64
 Id. at 421.

65
 G.R. No. 97525, April 7, 1993,221 SCRA251 [Per J. Campos, Jr., Second Division].

66
 Id. at 257.

67
Lumanog, et al. v. People, 644 Phil. 296, 40(M01 (2010) [Per J. Villarama, Jr., En
Banc].

68
People v. Ramos, 371 Phil. 66, 76 (1999) [Per Curiam, En Banc]; and People v.
Guevarra, 258-A Phil. 909, 916-918 (1989) [Per J. Sarmiento, Second Division].

69
 Elizabeth F. Loftus, EYEWITNESS TESTIMONY 53 (1996): "It is by now a well-
established fact that people are less accurate and complete in their eyewitness accounts
after a long retention interval than after a short one."

70
People v. Teehankee, Jr., 319 Phil. 128, 152 (1995) [Per J. Puno, Second Division].

71
People v. Rodrigo, 586 Phil. 515, 536 (2008) [Per J. Brion, Second Division].

72
 Elizabeth F. Loftus, EYEWITNESS TESTIMONY 54-55 (1996).

73
 Id. at 55.
74
 Id. at 73-74.

75
People v. Algarme, et al., 598 Phil. 423, 444 (2009) [Per J. Brion, Second Division].

76
 462 Phil. 480 (2003) [Per J. Carpio Morales, En Banc].

77
 Id. at 490 and 496.

78
 Id. at 494.

79
 598 Phil. 423 (2009) [Per J. Brion, Second Division].

80
 Id. at 443.

81
 424 Phil. 627 (2002) [Per J. Mendoza, En Banc].

82
 Id. at 633.

83
 Id. at 635.

84
 Id. at 639.

85
 Id.

86
 Id.

87
 Id.

88
 Id. at 652-654.

89
 Id. at 665.

90
 Id. at 659-662.

91
 Id. at 659, citing Frederic D. Woocher, Did Your Eyes Deceive You? Expert
Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L.
REV 969 (1977).

92
 473 Phil. 517 (2004) [Per J. Carpio, En Banc].

93
 Id. at 522.

94
 Id. at 526.

95
 Id. at 540.

96
 Id. at 540, citing Patrick M. Wall, EYE-WlTNESS IDENTIFICATION IN CRIMINAL
CASES 74 and 81 (1965).
97
 Id. at 547-548, citing Patrick M. Wall, EYE-WITNESS IDENTIFICATION IN CRIMINAL
CASES 90-130 (1965).

98
 Id. at 548.

99
 Patrick M. Wall, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 26 (1965).

100
 Marshall Houts, From Evidence to Proof 10-11 (1956).

101
 586 Phil. 515 (2008) [Per J. Brion, Second Division].

102
 Id. at 529.

103
 Id. at 528-530.

104
 The Decision was penned by Associate Justice Martin S. Villarama, Jr. and concurred
in by Chief Justice Renato C. Corona and Associate Justices Presbitero J. Velasco, Jr.,
Teresita J. Leonardo-de Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P.
Bersamin, Mariano C. Del Castillo, and Jose Perez. Associate Justice Lucas P. Bersamin
rendered a Concurring Opinion. Associate Justice Jose C. Mendoza was the Presiding
Judge in the Regional Trial Court during the trial of the case, although he was not the
judge that rendered the conviction. He and Associate Justice Antonio Eduardo B.
Nachura, who signed a pleading as former Solicitor General, inhibited from the case.
Associate Justices Antonio T. Carpio, Conchita Carpio Morales, Ma. Lourdes P. A. Sereno
(now Chief Justice), and Roberto A. Abad dissented from the majority, with Associate
Justices Antonio T. Carpio and Roberto A. Abad rendering their respective Dissenting
Opinions.

105
Lumanog, et al. v. People, 644 Phil. 296, 331-332 (2010) [Per J. Villarama, Jr., En
Banc].

106
 Id. at 350.

107
 Id. at 353.

108
 Id. at 339.

109
 Id. at 398.

110
 Id. at 398-399.

111
 J. Carpio, Dissenting Opinion in Lumanog, et al. v. People, 644 Phil. 296, 440 (2010)
[Per J. Villarama, Jr., En Banc].

112
 Id.

113
 Id. at 443-444.

114
 Id. at 454-456.
115
 Id. at 454-455.

116
 Id. at 455-456, citing People v. Gamer, 383 Phil. 557, 570 (2000) [Per J.
Quisumbing, Second Division].

117
 People v. Tolentino, 467 Phil. 937, 955 (2004) [Per J. Quisumbing, En Banc]; People
v. Pavillare, 386 Phil. 126, 145 (2000) [Per Curiam, En Banc].

118
People v. Pavillare, 386 Phil. 126, 145 (2000) [Per Curiam, En Banc].

119
 RTC records, p. 170.

120
 Elizabeth F. Loftus, EYEWITNESS TESTIMONY 136-137 (1996).

121
 Ponencia, p. 10.

122
 TSN, January 28, 1999, pp. 6-9.

123
 Id. at 11-15.

124
 Id. at 14.

125
 Id.

126
 Id. at 19-21.

127
 RTC records, pp. 143, 145, and 147, photographs of the line-up.

128
 CA rollo, p. 226, Preciosa Gomez's Reply Brief.

129
 TSN, September 15,1999, pp. 39-42.

130
 Edward's kidnapping was included in the following newspaper articles: Romie A.
Evangelista, Ong kidnapping suspect arrested, MANILA STANDARD, December 8, 1997,
at 1,4; Romie A. Evangelista, PNP officers doubt kidnappers' arrests, MANILA
STANDARD, December 9, 1997, at 1, 4; and Raymond Burgos and Cynthia D.
Balana, Mastermind in Ong kidnapping arrested, PHILIPPINE DAILY INQUIRER,
December 9, 1997, pp. 1, 18. Pepino and Gomez were mentioned in those articles;
however, there were no photographs published.

131
 Raymond Burgos and Cynthia D. Balana, Mastermind in Ong kidnapping
arrested, PHILIPPINE DAILY INQUIRER, December 9, 1997, pp. 1, 18; Romie A.
Evangelista, PNP officers doubt kidnappers' arrests, Manila Standard, December 9,
1997, pp. 1, 4.

132
 Raymond Burgos and Cynthia D. Balana, Mastermind in Ong kidnapping arrested,
PHILIPPINE DAILY INQUIRER, December 9, 1997, p. 18. The article discussed the
kidnapping of Ignacio Earl Ong, Jr. but also reported that authorities arrested 28
suspects belonging to different major kidnapping syndicates, which included the "Pepino
group." Diosdado Avila, Jr. and his gang, as featured on the photograph, belonged to
the "Blue Tiger group."

133
 Elizabeth F. Loftus, EYEWITNESS TESTIMONY 142 (1996): "[U]nconscious
transference [is] the term used to refer to the phenomenon in which a person seen in
one situation is confused with or recalled as a person seen in a second situation."

134
People v. Teehankee, Jr., 319 Phil. 128, 180 (1995) [Per J. Puno, Second Division].

135
People v. Gamer, 383 Phil. 557, 569 (2000) [Per J. Quisumbing, Second Division].

136
People v. Macam, G.R. Nos. 91011-12, November 24, 1994, 238 SCRA 306, 314-315
[Per J. Quiason, First Division]: People v. Pacistol, 348 Phil. 559, 578 (1998) [Per J.
Vitug, First Division]; People v. Lapura, 325 Phil. 346, 358 (1996) [Per J. Vitug, First
Division].

137
 G.R. Nos. 91011-12, November 24, 1994, 238 SCRA 306 [Per J. Quiason, First
Division].

138
 Id. at 315.

139
 In People v. Lapura, 325 Phil. 346, 358 (1996) [Per J. Vitug, First Division], this
court stated that "the inadmissibility of a police line-up identification of an uncounseled
accused should not necessarily foreclose the admissibility of an independent in-court
identification."

140
 G.R. No. 191752, June 10, 2013, 698 SCRA 161 [Per J. Brion, Second Division].

141
 Id. at 168.

142
 Id. at 171-172.

143
 Id. at 175-180.

144
 RTC records, p. 1.

145
 Id. at 51-55.

146
 Id. at 241 and 243.

147
 Bert Ignacio, Victim tags his kidnappers from gallery, MANILA STANDARD, December
13, 1997, at 1: A news article reported that Mario Galgo "squealed" on his companions.
However, the news article did not provide enough information for this court to be able
to take judicial notice.

148
 Elizabeth F. Loftus, Eyewitness Testimony 145-146 (1996).

149
 Id. at 146.

150
People v. Teehankee, Jr., 319 Phil. 128, 181 (1995) [Per J. Puno, Second Division].
151
 Patrick M. Wall, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 52-53 (1965).

152
 Elizabeth F. Loftus, EYEWITNESS TESTIMONY 136-142 (1996).

153
 Id. at 144.

154
 Marshall Houts, From Evidence to PROOF 25 (1956); Patrick M Wall, EYE-WITNESS
IDENTIFICATION IN CRIMINAL CASES 53 (1965).

155
 See Marshall Houts, FROM EVIDENCE TO PROOF 25 (1956).

156
 We should avoid the prejudice created in  Lumanog, et al. v. People, 644 Phil. 296,
398 (2010) [Per J. Villarama, Jr., En Banc], since the other members of the line-up
were police officers who were still wearing their uniform.

157
People v. Macam, G.R. Nos. 91011-12, November 24, 1994, 238 SCRA 306, 315 [Per
J. Quiason, First Division].

158
 In People v. Sanchez, 318 Phil. 547, 559 (1995) [Per J. Kapunan, First Division],
citing People v. Padua, G.R. No. 100916, October 29, 1992, 215 SCRA 266, 275 [Per J.
Gutierrez, Jr., Third Division], this court stated that "[t]here is no law requiring a police
line-up as essential to a proper identification. Identification can be made in a room in a
police station even if it were not in a police line-up as long as the required proprieties
are observed[.]" See also People v. Macapanas, 634 Phil. 125, 143 (2010) [Per J.
Villarama, Jr., First Division] and People v. Escote, Jr., 448 Phil. 749, 782-783 (2003)
[Per J. Callejo, Sr., En Banc].

159
 Patrick M. Wall, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 47
(1965), citing Cecil Hewitt Rolph, PERSONAL IDENTITY 33 (1957).

160
 Patrick M. Wall, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 49-51 (1965).