1

People v. Sandiganbayan and Rolando Plaza,

G.R. No. 169004, Sept. 15, 2010
Crim Pro - Jurisdiction

Facts:
The accused, Rolando Plaza was a member of the Sangguniang Panlungsod of Toledo City,
Cebu, with a salary grade 25. He was charged in the Sandiganbayan for violating Section 89 of P.D.
No. 1445 or The Auditing Code of the Philippines. Allegedly, he failed to liquidate the cash advances
he received by reason of his office on December 19, 1995 in the amount of P30,000. On April 7, 2005,
Plaza filed a motion to dismiss with the Sandiganbayan which was found to be with merit.

The Sandiganbayan dismissed the case for lack of jurisdiction over the case. So, the
petitioner filed this case to the Supreme Court contending that the Sandiganbayan has jurisdiction
over criminal cases involving public officials and employees enumerated under Section 4 (a) (1) of
P.D. 1606, whether or not occupying a position classified under salary grade 27 and above, who are
charged not only for violation of R.A. 3019, R.A. 1379 or any of the felonies included in Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, but also for crimes committed in relation to
their office.

Issue: Whether or not the Sandiganbayan has jurisdiction over a member of the Sangguniang

Panlungsod  whose salary grade is below 27 and charged with violation of The Auditing Code of the
Philippines.

Held: Yes, the Sandiganbayan has jurisdiction over a member of the Sangguniang Panlungsod
whose salary grade is below 27 and charged with violation of The Auditing Code of the Philippines. 

Those that are classified as Grade 26 and below may still fall within the jurisdiction of the
Sandiganbayan provided that they hold the positions enumerated by the same law. Particularly and
exclusively enumerated are provincial governors, vice-govenors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads
( Sec. 4 (1) (a) of P.D. 1606); city mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads (Sec. 4 (1) (b) of P.D. 1606);
officials of the diplomatic service occupying the position as consul and higher; Philippine army and air
force colonels, naval captains, and all officers of higher rank; PNP chief superintendent and PNP
officers of higher rank; City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor; and presidents, directors or
trustees, or managers of government-owned or controlled corporations, state universities or
educational institutions or foundations.

In connection therewith, Section 4 (b) of P.D. 1606 provides that other offenses or felonies
committed by public officials and employees mentioned in subsection (a) in relation to their office also
fall under the jurisdiction of the Sandiganbayan. 

So, those public officials enumerated in Sec. 4 (a) of P.D. No. 1606, as amended, may not
only be charged in the Sandiganbayan with violations of R.A. No. 3019, R.A. No. 1379 or Chapter II,
2

Section 2, Title VII of the Revised Penal Code, but also with other offenses or felonies in relation to
their office. The Supreme Court ruled in earlier cases that: as long as the offense charged in the
information is intimately connected with the office and is alleged to have been perpetrated while the
accused was in the performance, though improper or irregular, of his official functions, there being no
personal motive to commit the crime and had the accused not have committed it had he not held the
aforesaid office, the accused is held to have been indicted for “an offense committed in relation” to his
office. In the offenses involved in Section 4 (a), it is not disputed that public office is essential as an
element of the said offenses themselves, while in those offenses and felonies involved in Section 4
(b), it is enough that the said offenses and felonies were committed in relation to the public officials or
employees' office.

G.R. No. 213910, February 03, 2016

VINSON* D. YOUNG A.K.A. BENZON ONG AND BENNY YOUNG A.K.A. BENNY
ONG, Petitioners, v. PEOPLE OF THE PHILIPPINES, AS REPRESENTED BY THE
OFFICE OF THE SOLICITOR GENERAL, Respondent.

RESOLUTION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated September

10, 2013 and the Resolution3 dated July 31, 2014 of the Court of Appeals (CA) in
CA-G.R. SP. No. 07147, which reversed and set aside the Order4 dated July 24, 2012
of the Regional Trial Court of Cebu City, Branch 22 (RTC) in Criminal Case No. CBU-
96106, finding probable cause to indict petitioners Vinson D. Young a.k.a. Benzon
Ong (Vinson) and Benny Young a.k.a. Benny Ong (Benny; collectively, petitioners)
for violation of Sections 4 (a) and (e)5 in relation to Sections 6 (a) and (c)6 of
Republic Act No. (RA) 9208,7 otherwise known as the "Anti-Trafficking in Persons Act
of 2003."

The Facts

On separate dates,8 members of the Regional Anti-Human Trafficking Task Force

(RAHTTF) of the Philippine National Police (PNP), namely, PO2 Lyman N. Arsiia (PO2
Arsua) and PO2 Napoleon A. Talingting, Jr. (PO2 Talingting, Jr.), among others,
conducted surveillance operations at Jaguar KTV Bar (Jaguar) in Cebu City, and
observed that its customers paid P6,000.00 in exchange for sexual intercourse with
guest relations officers (GROs), or P10,000.00 as "bar fine" if they were taken out of
the establishment. In the course of their surveillance, they learned that: (a)
petitioners were the owners of Jaguar; (b) a certain "Tico" acted as overall manager;
and (c) a certain "Ann" welcomed customers and offered them GROs.9

On April 9, 2011, in the course of an entrapment operation, PO2 Arsua, PO2

Talingting, Jr., and PO1 Jef Nemenzo (PO1 Nemenzo), acting as poseur customers,
handed P15,000.00 worth of marked money to the "mamasang"/manager of Jaguar
in exchange for sexual service. At the prearranged signal, the rest of the RAHTTF
members raided Jaguar resulting to multiple arrests, seizure of sexual
paraphernalia, recovery of the marked money from one Jocelyn Balili (Balili),10 and
3

the rescue of 146 women and minor children.11 Later, six (6) of these women - who
all worked at Jaguar as GROs, namely, AAA, BBB, CCC, DDD, EEE, and FFF12 (AAA
Group) - executed affidavits13 identifying petitioners, Tico, and Ann as Jaguar's
owners. Accordingly, a criminal complaint for violation of Sections 4 (a) and (e) in
relation to Sections 6 (a) and (c) of RA 9208 was filed against them, before the
Office of the City Prosecutor, Cebu City (OCP), docketed as NPS Docket No. VII-09-
INV-IID00605.14

In defense, Vinson denied ownership of Jaguar and asserted that he had sold his
rights and interests therein to one Charles Theodore Rivera pursuant to a Deed of
Assignment15 dated December 14, 2009 (December 14, 2009 Deed of Assignent).
Not being the manager nor owner of Jaguar, therefore, he had no control and
supervision over the AAA Group, with whom he denied acquaintance. Similarly,
Benny claimed that he was neither the owner nor manager of Jaguar and was not
even present during the raid. He raised "mistake in identity" as defense, stressing
that he was not the same person identified by the AAA Group in their respective
affidavits.16

During the pendency of the preliminary investigation, or on May 31, 2011, the AAA
Group submitted affidavits17 stating that their previous affidavits were vitiated and
not of their own free will and voluntary deed,18 effectively recanting the same.

The OCP Ruling

In a Resolution19 dated October 27, 2011, the OCP found probable cause and
ordered the indictment of petitioners, Tico, and Ann for violation of Sections 4 (a)
and (e) in relation to Sections 6 (a) and (c) of RA 9208.

It found that the receipt and subsequent recovery of the marked money from Balili
constituted prima facie evidence that there was a transaction to engage in sexual
service for a fee.20 It also held that the documentary evidence pertaining to Jaguar's
business operations, as well as the positive identification made by the AAA Group,
sufficiently established petitioners as its owners. Besides, it noted that Vinson's
defense - i.e., that he had divested his interests in Jaguar - was evidentiary in
nature and hence, must be threshed out in a full-blown trial. Moreover, while the
AAA Group had since retracted their initial statements, their retractions were found
to hold no probative value. Finally, while the OCP ruled that the crime of human
trafficking was qualified for being committed by a syndicate, or in large scale -
carried out by three (3) or more persons - it, however, did not appreciate the
minority of EEE and FFF as a qualifying circumstance, not having been substantiated
by sufficient and competent evidence.21

Separately, both parties moved for reconsideration.22 In a Resolution23 dated April

23, 2012, the OCP modified its previous ruling and considered the minority of EEE
and FFF based on the certified true copies of their certificates of live birth24 as
additional qualifying circumstance. On May 29, 2012, the corresponding
information25 was filed before the RTC, docketed as Crim. Case No. CBU-96106.

On June 18, 2012, petitioners filed an omnibus motion26 for a judicial determination

of probable cause, praying that the issuance of the corresponding warrants of arrest
be held in abeyance pending resolution thereof, and for the case against them to be
dismissed for lack of probable cause.27chanroblesvirtuallawlibrary

The RTC Ruling

4

In an Order28 dated July 24, 2012, the RTC granted the omnibus motion and
dismissed the case for lack of probable cause.29 It ruled that the affidavits of the
RAHTTF members and the AAA Group failed to show that petitioners had knowledge
or participated in the recruitment of the 146 women and minors who were rescued
at Jaguar as sex workers. It also found that the recantations of the AAA Group were
fatal to the prosecution's case, since it effectively cleared petitioners of any
knowledge in Jaguar's operations. It further reasoned that the December 14, 2009
Deed of Assignment - the authenticity, due execution, and validity of which were not
impugned by the prosecution - showed that Vinson had already ceded his rights and
interests in Jaguar.30

Dispensing with the filing of a motion for reconsideration, respondent People of the
Philippines, through the Office of the Solicitor General (OSG), filed a petition
for certiorari31 before the CA, docketed as CA G.R. SP. No. 07147, imputing grave
abuse of discretion on the part of the RTC in dismissing the case for lack of probable
cause. In their Comment,32 petitioners maintained that the RTC properly dismissed
the case. Procedurally, they also pointed out that the correct remedy on the part of
the OSG was to file an appeal, not a petition for certiorari. Even assuming that
a certiorari petition was the proper mode of review, the OSG's failure to file a prior
motion for reconsideration was a fatal infirmity warranting the petition's outright
dismissal.33chanroblesvirtuallawlibrary

The CA Ruling

In a Decision34 dated September 10, 2013, the CA found that the RTC committed
grave abuse of discretion in dismissing the case for lack of probable cause.
Consequently, it ordered the reinstatement of the information and remanded the
case to the RTC for further proceedings.35 The CA primarily reasoned out that the
court a quo failed to consider the other evidence proffered by the prosecution to
support its finding of probable cause, and that it delved on evidentiary issues in
evaluating the affidavits submitted by the prosecution which are matters better
ventilated during the trial proper than at the preliminary investigation level.36

The CA, however, did not touch on the issue of the propriety of the certiorari petition
filed by the OSG.

Aggrieved, petitioners moved for reconsideration37 which was, however, denied in a

Resolution38 dated July 31, 2014; hence, the instant petition.

The Issues Before the Court

The essential issues for the Court's resolution are: (a) whether or not the CA erred
in finding grave abuse of discretion on the part of the RTC in dismissing the criminal
case against petitioners for lack of probable cause; and (b) whether or not a motion
for reconsideration is a prerequisite to filing a certiorari petition.

The Court's Ruling

The petition is bereft of merit.

Determination of probable cause is either executive or judicial in nature.

The first pertains to the duty of the public prosecutor during preliminary
5

investigation for the purpose of filing an information in court. At this juncture, the
investigating prosecutor evaluates if the facts are sufficient to engender a well-
founded belief that a crime has been committed and that the accused is probably
guilty thereof.39

On the other hand, judicial determination of probable cause refers to the prerogative
of the judge to ascertain if a warrant of arrest should be issued against the accused.
At this stage, the judge makes a preliminary examination of the evidence submitted,
and on the strength thereof, and independent from the findings of the public
prosecutor, determines the necessity of placing the accused under immediate
custody in order liot to frustrate the ends of justice.40

In People v. Inting,41 the stark distinctions between executive and judicial

determination of probable cause were aptly explained, thus: chanRoblesvirtualLawlibrary

Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the
Judge. The preliminary investigation proper whether or not there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore,
whether or not he should be subjected to the expense, rigors and embarrassment of
trial is the function of the Prosecutor.42 (Emphasis supplied) cralawlawlibrary

Pertinently, the Court declared in Santos-Dio v. CA43 (Santos-Dio) that while a

judge's determination of probable cause is generally confined to the limited purpose
of issuing arrest warrants, he is nonetheless authorized under Section 5 (a),44 Rule
112 of the Revised Rules of Criminal Procedure to immediately dismiss the case if
the evidence on record clearly fails to establish probable cause. Thus: chanRoblesvirtualLawlibrary

In this regard, so as not to transgress the public prosecutor's authority, it must be

stressed that the judge's dismissal of a case must be done only in clear-cut
cases when the evidence on record plainly fails to establish probable cause
- that is when the records readily show uncontroverted, and thus,
established facts which unmistakably negate the existence of the elements
of the crime charged. On the contrary, if the evidence on record shows that,
more likely than not, the crime charged has been committed and that
respondent is probably guilty of the same, the judge should not dismiss the
case and thereon, order the parties to proceed to trial. In doubtful cases,
however, the appropriate course of action would be to order the presentation of
additional evidence.45 (Emphasis supplied) cralawlawlibrary

Accordingly, a judge may dismiss the case for lack of probable cause only in clear-
cut cases when the evidence on record plainly fails to establish probable cause - that
is when the records readily show uncontroverted, and thus, established facts which
unmistakably negate the existence of the elements of the crime charged.46

Applying the standard set forth in Santos-Dio, the evidence on record herein
does not reveal the unmistakable and clear-cut absence of probable cause against
petitioners. Instead, a punctilious examination thereof shows that the prosecution
was able to establish a prima facie case against petitioners for violation of Sections 4
(a) and (e) in relation to Sections 6 (a) and (c) of RA 9208. As it appears from the
records, petitioners recruited and hired the AAA Group and, consequently,
maintained them under their employ in Jaguar for the purpose of engaging in
prostitution. In view of this, probable cause exists to issue warrants for their arrest.
6

Moreover, the Court notes that the defenses raised by petitioners, particularly their
disclaimer that they are no longer the owners of the establishment where the sex
workers were rescued, are evidentiary in nature - matters which are best threshed
out in a full-blown trial. Thus, the proper course of action on the part of the RTC was
not to dismiss the case but to proceed to trial. Unfortunately, and as the CA aptly
observed, the RTC arrogated upon itself the task of dwelling on factual and
evidentiary matters upon which it eventually anchored the dismissal of the case.
Consequently, grave abuse of discretion was correctly imputed by the CA against the
RTC for its action.

Anent the question of whether a motion for reconsideration- is a prerequisite to the

filing of a certiorari petition, the Court finds the OSG's argument well-taken. In this
regard, jurisprudence has carved out specific exceptions allowing direct resort to
a certiorari petition, such as: (a) where the order is a patent nullity, as where
the court a quo has no jurisdiction; (b) where the questions raised in
the certiorari proceedings have been duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court; (c)
where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances, a
motion for reconsideration would be useless; (e) where petitioner was deprived of
due process and there is extreme urgency for relief; (f) where, in a criminal case,
relief from an order of arrest is urgent and the granting of such relief by the trial
court is improbable; (g) where the proceedings in the lower court are a nullity for
lack of due process; (h) where the proceedings were ex parte, or in which the
petitioner had no opportunity to object; and (i) where the issue raised is one purely
of law or where public interest is involved.47

In this case, the assailed RTC Order was a patent nullity for being rendered with
grave abuse of discretion amounting to lack or in excess of
jurisdiction.48 Significantly, the present case involves public interest as it imputes
violations of RA 9208, or the "Anti-Trafficking in Persons Act of 2003," a crime so
abhorrent and reprehensible that is characterized by sexual violence and
slavery.49 Accordingly, direct resort to a certiorari petition sans a motion for
reconsideration is clearly sanctioned in this case.cralaw-red

WHEREFORE, the petition is DENIED. The Decision dated September 10, 2013 and
the Resolution dated July 31, 2014 of the Court of Appeals in CA-G.R. SP. No. 07147
are hereby AFFIRMED.

SO ORDERED.

MARK REYNALD MARASIGAN Y DE GUZMAN v. REGINALD FUENTES, GR No.

201310, 2016-01-11
Facts:
Per Marasigan's allegations... while he was walking on his way home
Marasigan felt someone throw an object at him from behind. Turning around, he saw
Fuentes, who, upon noticing that he had been seen, disappeared. A witness, Jefferson
Pablo (Pablo), spoke with Marasigan and confirmed that it was Fuentes who threw an
object at him.
7

While he and Pablo were speaking, Fuentes reappeared with Calilan and Lindo, as well
as with another unidentified individual. Fuentes suddenly punched Marasigan on the
face, making his nose bleed. Calilan and Lindo also hit him while their unidentified
companion sought to stop... them. Fuentes picked up a stone (i.e., piece of a hollow
block) and attempted to hit Marasigan's head with it. Marasigan parried the stone with
his hand, causing his hand to fracture. Fuentes again picked up the stone. Lindo and
Calilan took hold of each of Marasigan's arms.
Several more men who were in Fuentes' home joined in the assault.
Marasigan shouted for help. Gregoria Pablo, Jefferson Pablo's mother, came rushing out
of their house and tried to pacify Fuentes, Calilan, and Lindo. They,... however,
continued to assault Marasigan. It was only upon the arrival of neighbors Marcelo Maaba
and Lauro Agulto that Fuentes, Calilan, and Lindo ceased their assault and fled.
filed a criminal complaint for frustrated murder... against Fuentes, Calilan, Lindo, and
one John Doe
After conducting preliminary investigation, Assistant Provincial Prosecutor
Serrano... issued the Resolution... finding probable cause for charging Fuentes and
Calilan with less... serious physical injuries and clearing Lindo of any liability.
He reasoned that there were no qualifying circumstances to support a charge for
murder.
Aggrieved, Marasigan filed a Petition for Review before the Department of Justice. He
argued that the medical findings made on him as well as the qualifying circumstance of
abuse of superior strength justified prosecution for frustrated murder. He added that
Lindo's acts were... unambiguous and indicated his participation in a design to kill him.
[18]
Issues:
For resolution is the sole issue of the proper crime, if any, for which any or all of the
respondents must stand trial.
Ruling:
We sustain the conclusion of Undersecretary Malenab-Hornilla that there is basis for
prosecuting respondents for murder in its attempted, and not in its frustrated, stage.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance.
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed.[
8

In this case, petitioner alleged that respondents coordinated in assaulting him and that
this assault culminated in efforts to hit his head with a stone or hollow block. Had
respondents been successful, they could have dealt any number of blows on petitioner.
Each of these could... have been fatal, or, even if not individually so, could have, in
combination, been fatal. That they were unable to inflict fatal blows was only because of
the timely arrival of neighbors who responded to the calls for help coming from petitioner
and witnesses Marcelo Maaba,... Lauro M. Agulto, and Gregoria F. Pablo.
Principles:
direct proof of conspiracy is not imperative and that conspiracy may be inferred from
acts of the perpetrators.
a perpetrator's act of holding the victim's hand while another perpetrator is striking a
blow is indicative of conspiracy

G.R. No. 201310, January 11, 2016

MARK REYNALD MARASIGAN Y DE GUZMAN, Petitioner, v. REGINALD

FUENTES ALIAS "REGIE," ROBERT CALILAN ALIAS "BOBBY," AND ALAIN
DELON LINDO, Respondents.

DECISION

LEONEN, J.:

This resolves a Petition1 for Review on Certiorari under Rule 45 of the Rules of Court
praying that (1) the August 19, 2011 Decision2 and the February 21, 2012
Resolution3 of the Court of Appeals in CA-G.R. SP No. 113116 be reversed and set
aside and (2) the September 2, 2009 Resolution4 rendered by then Department of
Justice Undersecretary Linda L. Malenab-Hornilla (Undersecretary Malenab-Hornilla)
be reinstated.5

The assailed August 19, 2011 Decision of the Court of Appeals dismissed the Petition
for Certiorari under Rule 65 of the Rules of Court filed by petitioner Mark Reynald
Marasigan (Marasigan) and affirmed the February 8, 2010 Resolution6 of then
Department of Justice Secretary Agnes VST Devanadera (Secretary
Devanadera).7 The assailed February 21, 2012 Resolution of the Court of Appeals
denied Marasigan's Motion for Reconsideration.8

The February 8, 2010 Resolution of Secretary Agnes VST Devanadera reversed and
set aside Undersecretary Linda L. Malenab-Hornilla's September 2, 2009 Resolution
and dismissed the criminal complaints against respondents Reginald Fuentes
(Fuentes) and Alain Delon Lindo (Lindo) and found probable cause to charge
respondent Robert Calilan (Calilan) with only less serious physical
injuries.9 Undersecretary Malenab-Hornilla's September 2, 2009 Resolution partially
granted Marasigan's Petition for Review and directed the filing of informations for
attempted murder against Fuentes, Calilan, and Lindo.10

Per Marasigan's allegations, on December 20, 2006 at about 3:00 a.m., while he
was walking on his way home along Hebrew Street, Adelina I Subdivision, Barangay
San Antonio, San Pedro, Laguna, and after he had passed by Fuentes' house where
some merrymaking had been ongoing, Marasigan felt someone throw an object at
9

him from behind. Turning around, he saw Fuentes, who, upon noticing that he had
been seen, disappeared. A witness, Jefferson Pablo (Pablo), spoke with Marasigan
and confirmed that it was Fuentes who threw an object at him.11

While he and Pablo were speaking, Fuentes reappeared with Calilan and Lindo, as
well as with another unidentified individual. Fuentes suddenly punched Marasigan on
the face, making his nose bleed. Calilan and Lindo also hit him while their
unidentified companion sought to stop them. Fuentes picked up a stone (i.e., piece
of a hollow block) and attempted to hit Marasigan's head with it. Marasigan parried
the stone with his hand, causing his hand to fracture. Fuentes again picked up the
stone. Lindo and Calilan took hold of each of Marasigan's arms. Several more men
who were in Fuentes' home joined in the assault.12

Sensing that Fuentes, Calilan, and Lindo were determined to crush him with hollow
blocks from a nearby construction site, Marasigan shouted for help. Gregoria Pablo,
Jefferson Pablo's mother, came rushing out of their house and tried to pacify
Fuentes, Calilan, and Lindo. They, however, continued to assault Marasigan. It was
only upon the arrival of neighbors Marcelo Maaba and Lauro Agulto that Fuentes,
Calilan, and Lindo ceased their assault and fled.13

Assisted by his parents, Marasigan submitted himself to two (2) medico-legal

examinations, and an x-ray examination. He also filed reports/complaints in the
barangay hall and police station. On December 28, 2006, he formally filed a criminal
complaint for frustrated murder against Fuentes, Calilan, Lindo, and one John Doe
before Assistant Provincial Prosecutor Milaflor Tan Mancia.14

After conducting preliminary investigation, Assistant Provincial Prosecutor

Christopher R. Serrano (Assistant Provincial Prosecutor Serrano) issued the
Resolution15 dated August 16, 2007 finding probable cause for charging Fuentes and
Calilan with less serious physical injuries and clearing Lindo of any liability.16 He
reasoned that there were no qualifying circumstances to support a charge for
murder. He added that the injuries suffered by Marasigan, including his fractured
finger, required a healing period of not more than 30 days.17

Aggrieved, Marasigan filed a Petition for Review before the Department of Justice.
He argued that the medical findings made on him as well as the qualifying
circumstance of abuse of superior strength justified prosecution for frustrated
murder. He added that Lindo's acts were unambiguous and indicated his
participation in a design to kill him.18

In the Resolution dated September 2, 2009, Undersecretary Malenab-Hornilla

partially granted Marasigan's Petition for Review and ordered the provincial
prosecutor of Laguna to file informations for attempted murder against Fuentes,
Calilan, and Lindo. Undersecretary Malenab-Hornilla faulted Assistant Provincial
Prosecutor Serrano for relying on the medico-legal findings to the exclusion of other
evidence. She reasoned that Fuentes, Calilan, and Lindo's acts, as recounted by the
witnesses Gregoria Pablo, Marcelo Maaba, and Lauro Agulto, indicated a design to
kill Marasigan, which was only stymied by these witnesses' arrival.19 She added,
however, that precisely because of the arrival of these witnesses, Fuentes, Calilan,
and Lindo failed to complete "all the punching, kicking and stoning needed to kill
[Marasigan].20 Thus, they could not be charged with frustrated murder, but only with
attempted murder.21

Fuentes, Calilan, and Lindo filed their Motion for Reconsideration to Undersecretary
10

Malenab-Hornilla's Resolution.22

While the Motion for Reconsideration of Fuentes, Calilan, and Lindo was pending, the
Provincial Prosecutor's Office filed the Information23 for attempted murder before
Branch 93, Regional Trial Court, San Pedro, Laguna.

On February 8, 2010, Secretary Devanadera issued a Resolution on Fuentes, Calilan,

and Lindo's Motion for Reconsideration. This Resolution absolved Fuentes and Lindo
of liability and deemed that Calilan could only be charged with less serious physical
injuries. Secretary Devanadera cited with approval Assistant Provincial Prosecutor
Serrano's statement in his own Resolution that there was no sufficient showing, or
"clear and convincing evidence to prove that the herein respondents collectively
intended to kill [Marasigan]."24

Aggrieved, Marasigan filed a Petition for Certiorari under Rule 65 of the Rules of
Court before the Court of Appeals.25 cralawred

In its assailed August 19, 2011 Decision, the Court of Appeals dismissed Marasigan's
Petition for Certiorari. In its assailed February 21, 2012 Resolution, the Court of
Appeals denied Marasigan's Motion for Reconsideration.

Hence, this Petition was filed.

For resolution is the sole issue of the proper crime, if any, for which any or all of the
respondents must stand trial.

Petitioner comes to us via a Petition for Review on Certiorari under Rule 45 of the
Rules of Court following the denial by the court of appeals of his Petition for
Certiorari under Rule 65, the errors which are properly correctible by each remedy
are settled:chanRoblesvirtualLawlibrary

In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is

limited to resolving only errors of jurisdiction. It is not to stray at will and resolve
questions or issues beyond its competence such as errors of judgment. Errors of
judgment of the trial court are to be resolved by the appellate court in the appeal by
and of error or via a petition for review on certiorari in this Court under Rule 45 of
the Rules of Court. Certiorari will issue only to correct errors of jurisdiction. It is not
a remedy to correct errors of judgment. An error of judgment is one in which the
court may commit in the exercise of its jurisdiction, and which error is reversible
only by an appeal. Error of jurisdiction is one where the act complained of was
issued by the court without or in excess of jurisdiction and which error is correctible
only by the extraordinary writ of certiorari. Certiorari will not be issued to cure
errors by the trial court in its appreciation of the evidence of the parties, and its
conclusions anchored on the said findings and its conclusions of law. As long as the
court acts within its jurisdiction, any alleged errors committed in the exercise of its
discretion will amount to nothing more than mere errors of judgment, correctible by
an appeal or a petition for review under Rule 45 of the Rules of Court.26 cralawlawlibrary

The present, Rule 45 Petition calls upon us to examine whether the Court of Appeals
committed an error of judgment in resolving the question of whether Secretary
Devanadera committed grave abuse of discretion, amounting to lack or excess of
jurisdiction in concluding the respondents ought to stand trial only for the charge of
11

less serious physical injuries. In her capacity as Secretary of Justice, Secretary

Devanadera was well within her jurisdiction to rule on the Petition for Review filed
with the Department of Justice. She is, however, not at liberty to flagrantly
disregard the evidence and the records and to insist on conclusions that stray
dismally far from what the evidence warrants. Neither is she at liberty to disregard
evidentiary principles established in jurisprudence.

It is basic that petitions for review on certiorari under Rule 45 may only raise pure
questions of law27 and that findings of fact are generally binding and conclusive on
this court. Nevertheless, there are recognized exceptions that will allow this court to
overturn the factual findings confronting it. These exceptions are the following: chanRoblesvirtualLawlibrary

(1) When the conclusion is a finding grounded entirely on speculation, surmises and
conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on
which they are based;

(9) When the facts set forth in the petition as well as in the petitioners' main and
reply briefs are not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on record.28 cralawlawlibrary

Moreover, in Rule 45 petitions, which are appeals from petitions for certiorari under
Rule 65, the appealed ruling may be reversed and its factual moorings rejected if it
can be shown that, in rendering the act originally subject of the Rule 65 petition,
"the tribunal acted capriciously and whimsically or in total disregard of evidence
material to the controversy[.]"29

A careful review of this case and of the evidence that were available for the
prosecutors' and the Department of Justice's appreciation will reveal that there was
a gross misapprehension of facts on the part of Assistant Provincial Prosecutor
Serrano and Secretary Devanadera. It was, therefore, grave abuse of discretion for
Secretary Devanadera to conclude that respondent Calilan may only be prosecuted
for the crime of less serious physical injuries while his co-respondents, Fuentes and
Lindo, may not be prosecuted at all.

II

Secretary Devanadera was in grave error in citing with approval Assistant Provincial
12

Prosecutor Serrano's having faulted petitioner for lack of "sufficient s[h]owing,

[o]r clear and convincing evidence to prove that the herein respondents
collectively intended to kill [petitioner]."30

Assistant Provincial Prosecutor Serrano's Resolution was issued pursuant to a

preliminary investigation. Preliminary investigation "ascertains whether the offender
should be held for trial or be released."31 It inquires only into the existence of
probable cause: a matter which rests on likelihood rather than on certainty. It relies
on common sense rather than on "clear and convincing evidence": chanRoblesvirtualLawlibrary

Probable cause, for the purpose of filing a criminal information, has been defined as
such facts as are sufficient to engender a well-founded belief that a crime has been
committed and that respondent is probably guilty thereof. The term does not mean
"actual and positive cause" nor does it import absolute certainty. It is merely based
on opinion and reasonable belief. Probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the offense charged.

A finding of probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed by the suspects.  It need not be based on
clear and convincing evidence of guilt, not on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence establishing absolute certainty of
guilt.  In determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of evidence of which
he has no technical knowledge. He relies on common sense. What is determined is
whether there is sufficient ground to engender a well-founded belief that a crime has
been committed, and that the accused is probably guilty thereof and should be held
for trial. It does not require an inquiry as to whether there is sufficient evidence to
secure a conviction.32 (Emphasis supplied, citations omitted)
cralawlawlibrary

III

Secretary Devanadera is of the conclusion that "[t]he evidence is equivocal on

whether respondents had any homicidal intent in engaging in a scuffle with the
complainant."33 In so doing, she makes much of how "[t]he physical evidence starkly
fails to demonstrate any homicidal motive[.]"34 She goes so far as to virtually
discredit the other available evidence vis-a-vis physical evidence, saying that
"[p]hysical evidence is evidence of the highest order and speaks more eloquently
than a hundred witnesses."35

Specifically, Secretary Devanadera pointed out that the medico-legal

findings36 indicated that petitioner sustained nothing more than contusions and
abrasions;37 and that while he suffered a fracture on the metacarpal bone on the
second digit of his right hand,38 it was found that his injuries would take less than 30
days to heal.39

We disagree with this appreciation.

In Rivera v. People,40 this court noted that the fact that the wounds sustained by the
victim were merely superficial and not fatal did not negate the liability of the
accused for attempted murder.41 The attack on the victim in Rivera was described as
follows: chanRoblesvirtualLawlibrary
13

In the present case, the prosecution mustered the requisite quantum of evidence to
prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the
victim with fist blows. Even as Ruben fell to the ground, unable to defend himself
against the sudden and sustained assault of petitioners, Edgardo hit him three times
with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still
managed to hit the victim only in the parietal area, resulting in a lacerated wound
and cerebral contusions.42
cralawlawlibrary
ChanRoblesVirtualawlibrary

The circumstances in Rivera are starkly similar with (though not entirely the same
as) those in this case. As in Rivera, several assailants took part in pummeling
petitioner, and efforts were made to hit his head with stones or pieces of hollow
blocks. A difference is that, in this case, petitioner managed to parry an attempted
blow, thereby causing a fracture in his right hand, instead of a more serious and,
possibly fatal, injury on his head.

In any case, the fact that petitioner was successful in blocking the blow with his
hand does not, in and of itself, mean that respondents could not have possibly killed
him. It does not negate any homicidal intent. It remains that respondent Fuentes
attempted to hit petitioner on the head with a hollow block while respondents Calilan
and Lindo made efforts to restrain petitioner.

There is also reasonable basis for appreciating how the attack on petitioner was
made with respondents taking advantage of their numerical superiority. Relevant
portions of the witnesses' sworn statements are reproduced, as follows: chanRoblesvirtualLawlibrary

1. Marcelo T. Maaba

Na, pagkalabas ko ay nakita ko na may binubugbog ang apat na katao

at nakilala ko ang isa na nagngangalang BOBBY CALILAN, nasa
hustong gulang, binata, at dating nakatira sa Block 11 [,] Adelina I,
San Antonio, San Pedro, Laguna, at ang binubugbog nila aysi [sic]
Mark Reynald Marasigan.

Na, sinigawan po namin (kasama si Lauro Agulto, Gregorio [sic] at Jeff

Pablo) ang mga nambubugbog kaya[']t agad naman nila itong iniwan si
Mark na duguan ang mukha at damit.43

2. Lauro M. Agulto

Maya-maya pa ay biglang sumugod ang grupo [ni] BOBBY CALILAN,

nasa hustong gulang, binata at dating nakatira sa Block 11[,] Adelina
I, kasama ang pitong iba pa na hindi ko kilala at pinag-gugulpi si Mark
hanggang sa bumagsak ito. Lumapit si Ate Boyang sa mga
nanggugulpi upang umawat ngunit nagulat ito sa biglang pagdami ng
grupo ni Bobby kaya't napaatras si Ate Boyang at na out-balance at
napatumba. Sa tagpong ito ay lumabas ako upang tulungan si Ate
Boyang;

Na, pagkalabas ko ay nakatagilid pahiga si Mark sa kalsada at nang

papalapit na ako ay tinadyakan pa ito ng isa pa, nakita ko rin
na pinagtutulungan itong si Mark suntukin at sipain ng grupo ni Bobby
kasama ang pitong iba pa.44 (Emphasis supplied)
14

3. Gregoria F. Pablo

Na, noong mga ganap na ika 3:00 ng madaling araw, nakita ko ang
anak ng aking kapitbahay na si Macmac (M[a]rk Reynald G. Marasigan)
na kausap ang aking anak na si Jeff. Narinig ko na siya ay binato ng
napakalaki sa likod at matinding nasaktan. Noon ay nasa tapat ng
bahay ang aking anak na magsisimbang gabi. Lumabas ako at alamin
ang pangyayari at yayaing pumasok na sa loob ng aming bahay upang
gamutin si Macmac. Subalit bigla na lamang su[m]ugod [a]ng apat na
lalaki at sabay sabay na sinaktan si Macmac. Marami pang
nagdatingan sumusugod na matataas at malalaking kalalakihan na
tumulong pa sa pambubugbog kay Macmac. Naglakas loob ako na
umawat dahil sa pag aakalang igagalang nila ako. Ngunit ako ay
kanilang itinulak na sanhi ng aking pagkatilapon at pagkasubsub at
nasugatan. . . . Nakita ko na balak na nilang patayin si Macmac dahil
habang pinipigil ko ang iba, ay nakita ko na hinihila pa siya ng mga
anim o pitong malalaking kalalakihan habang nakahandusay na at
sabay-sabay pa siyang sinasaktan.45
cralawlawlibrary

From these, it is discernible that respondents took advantage of their superior

strength or otherwise employed means to weaken petitioner's defense. With this
qualifying circumstance, there is ample basis for pursuing respondents' prosecution
for murder, albeit not in its consummated stage.

Similarly, it is apparent that respondents acted out of a common design and, thus,
in conspiracy.

It is settled that direct proof of conspiracy is not imperative and that conspiracy may
be inferred from acts of the perpetrators. As explained in People v. Amodia:46 chanroblesvirtuallawlibrary

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. It arises on the very instant the
plotters agree, expressly or impliedly, to commit the felony and forthwith decide to
pursue it. It may be proved by direct or circumstantial evidence.

Direct proof of conspiracy is rarely found; circumstantial evidence is often resorted

to in order to prove its existence. Absent of any direct proof, as in the present case,
conspiracy may be deduced from the mode, method, and manner the offense was
perpetrated, or inferred from the acts of the accused themselves, when such acts
point to a joint purpose and design, concerted action, and community of interest. An
accused participates as a conspirator if he or she has performed some overt act as a
direct or indirect contribution in the execution of the crime planned to be committed.
The overt act may consist of active participation in the actual commission of the
crime itself, or it may consist of moral assistance to his co-conspirators by being
present at the commission of the crime, or by exerting moral ascendancy over the
other co-conspirators. Stated otherwise, it is not essential that there be proof of the
previous agreement and decision to commit the crime; it is sufficient that the
malefactors acted in concert pursuant to the same objective.47 (Citations omitted) cralawlawlibrary

Thus, it has been held that a perpetrator's act of holding the victim's hand while
another perpetrator is striking a blow is indicative of conspiracy, as People v.
Amodia, citing People v. Manalo,48 notes: chanRoblesvirtualLawlibrary
15

In People v. Manalo, we declared that the act of the appellant in a holding the
victim's right hand while the latter was being stabbed constituted sufficient proof of
conspiracy:
Indeed, the act of the appellant of holding the victim's right hand while the victim
was being stabbed by Dennis shows that he concurred in the criminal design of the
actual killer. If such act were separate from the stabbing, appellant's natural
reaction should have been to immediately let go of the victim and flee as soon as
the first stab was inflicted. But appellant continued to restrain the deceased until
Dennis completed his attack.49 (Citation omitted)
cralawlawlibrary

In this case, petitioner averred that respondents Calilan and Lindo took hold of each
of his arms while respondent Fuentes was about to strike him with a hollow block. It
is, therefore, apparent that all three of them acted out of a common design as is
indicative of a conspiracy.

We sustain the conclusion of Undersecretary Malenab-Hornilla that there is basis for

prosecuting respondents for murder in its attempted, and not in its frustrated, stage.

The stages of commission of felonies are provided in Article 6 of the Revised Penal
Code: chanRoblesvirtualLawlibrary

ARTICLE 6. Consummated, Frustrated, and Attempted Felonies. — Consummated

felonies, as well as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the
acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.

There is an attempt when the offender commences the commission of a felony

directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance. cralawlawlibrary

Rivera v. People discussed the elements that are determinative of a felony's having

reached (only) the attempted stage: chanRoblesvirtualLawlibrary

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offender's act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance. cralawlawlibrary

The first requisite of an attempted felony consists of two elements, namely: chanRoblesvirtualLawlibrary

(1) That there be external acts;

16

(2) Such external acts have direct connection with the crime intended to be
committed.50 (Citations omitted)
cralawlawlibrary

In this case, petitioner alleged that respondents coordinated in assaulting him and
that this assault culminated in efforts to hit his head with a stone or hollow block.
Had respondents been successful, they could have dealt any number of blows on
petitioner. Each of these could have been fatal, or, even if not individually so, could
have, in combination, been fatal. That they were unable to inflict fatal blows was
only because of the timely arrival of neighbors who responded to the calls for help
coming from petitioner and witnesses Marcelo Maaba, Lauro M. Agulto, and Gregoria
F. Pablo.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The August 19,
2011 Decision and the February 21, 2012 Resolution of the Court of Appeals in CA-
G.R. SP No. 113116 are REVERSED and SET ASIDE. The September 2, 2009
Resolution rendered by former Department of Justice Undersecretary Linda L.
Malenab-Hornilla is REINSTATED.

The Provincial Prosecutor of Laguna is directed to enforce the same September 2,

2009 Resolution with dispatch.

SO ORDERED. chanroblesvirtuallawlibrary