Crim Prow Digest

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 181986 December 4, 2013

ELIZALDE S. CO, Petitioner, vs.LUDOLFO P. MUÑOZ, JR., Respondent.

D E C I S I O N

BRION, J.:

Before us this petition for review on certiorari1 seeking to set asie the decision2 dated January 31, 2007 and resolution3 dated March 3, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 29355. The CA rulings reversed and set aside the decision4 dated February 24, 2004 of the Regional Trial Court (RTC) of Legaspi City, Branch 5, in Criminal Case Nos. 9704, 9705 and 9737, and acquitted respondent Ludolfo P. Munoz, Jr. (Munoz) of three counts of libel.

Factual Antecedents

The case springs from the statements made by the respondent against the petitioner, Elizalde S. Co (Co), in several interviews with radio stations in Legaspi City. Munoz, a contractor, was charged and arrested for perjury. Suspecting that Co, a wealthy businessman, was behind the filing of suit, Munoz made the following statements:

(a) Co influenced the Office of the City Prosecutor of Legaspi City to expedite the issuance of warrant of arrest against Muñoz in connection with the perjury case;

(b) Co manipulated the results of the government bidding involving the Masarawag-San Francisco dredging project, and;

(c) Co received P2,000,000.00 from Muñoz on the condition that Co will sub-contract the project to Muñoz, which condition Co did not comply with.5

Consequently, Co filed his complaint-affidavit which led to the filing of three criminal informations for libel before the RTC.6

Notably, Co did not waive, institute or reserve his right to file a separate civil action arising from Muñoz’s libelous remarks against him.7

In his defense,8 Muñoz countered that he revealed the anomalous government bidding as a call of public duty. In fact, he filed cases against Co before the Ombudsman involving the anomalous dredging project. Although the Ombudsman dismissed the cases, Muñoz claimed that the dismissal did not disprove the truth of his statements. He further argued that Co is a public figure considering his participation in government projects and his prominence in the business circles. He also emphasized that the imputations dealt with matters of public interest and are, thus, privileged.

Applying the rules on privileged communication to libel suits, the prosecution has the burden of proving the existence of actual malice, which, Muñoz claimed, it failed to do.

In its decision, the RTC found Muñoz guilty of three counts of libel. The RTC ruled that the prosecution established the elements of libel. In contrast, Muñoz failed to show that the imputations were true and published with good motives and for justifiable ends, as required in Article 361 of the Revised Penal Code (RPC).9

In light of the Ombudsman’s dismissal of Muñoz’ charges against Co, the RTC also held that Muñoz’ statements were baseless accusations which are not protected as privileged communication.10

In addition to imprisonment, Muñoz was ordered to pay P5,000,000.00 for each count of libel as moral damages,P1,200,000.00 for expenses paid for legal services, and P297,699.00 for litigation expense.11

Muñoz appealed his conviction with the CA.

The CA Ruling

The CA held that the subject matter of the interviews was impressed with public interest and Muñoz’ statements were protected as privileged communication under the first paragraph of Article 354 of the RPC.12

It also declared that Co was a public figure based on the RTC’s findings that he was a "well-known, highly-regarded and recognized in business circles."13

As a public figure, Co is subject to criticisms on his acts that are imbued with public interest.14

Hence, the CA reversed the RTC decision and acquitted Muñoz of the libel charges due to the prosecution’s failure to establish the existence of actual malice.

The Petitioner’s Arguments

In the present petition, Co acknowledges that he may no longer appeal the criminal aspect of the libel suits because that would violate Muñoz’ right against double jeopardy. Hence, he claims damages only on the basis of Section 2, Rule 111 of the Rules of Court (ROC), which states that the extinction of the penal action does not carry with it the extinction of the civil action. He avers that this principle applies in general whether the civil action is instituted with or separately from the criminal action.15

He also claims that the civil liability of an accused may be appealed in case of acquittal.16

Co further makes the following submissions:

First, the CA erred when it disregarded the presumption of malice under Article 35417 of the RPC. To overcome this presumption, Muñoz should have presented evidence on good or justifiable motive for his statements.18

On the contrary, the context of Muñoz’s radio interviews reflects his evident motive to injure Co’s reputation instead of a sincere call of public duty.19

Second, the CA erred in declaring Co as a public figure based on the RTC findings that he is known in his community. He claims this as a relatively limited community comprising of his business associates.20

The Respondent’s Arguments

Muñoz argues that Co misunderstood Section 2, Rule 111 of the ROC because, as its title suggests, the provision presupposes the filing of a civil action separately from the criminal action. Thus, when there is no reservation of the right to separately institute the civil action arising from the offense, the extinction of the criminal action extinguishes the civil action.

Since Co did not reserve his right to separately institute a civil action arising from the offense, the dismissal of the criminal action bars him from filing the present petition to enforce the civil liability.21

Muñoz further posits that Co is not entitled to recover damages because there is no wrongful act to speak of. Citing De la Rosa, et al. v. Maristela,22 he argues that if there is no libel due to the privileged character of the communication and actual malice is not proved, there should be no award of moral damages.23

Lastly, Muñoz avers that Co is indirectly challenging the factual and legal issues which the CA has already settled in acquitting him. Muñoz explains that this Court may no longer overturn the CA’s findings as the doctrine of double jeopardy has set in.24

The Issues

The parties’ arguments, properly joined, present to us the following issues:

1. whether a private party may appeal the judgment of acquittal insofar as he seeks to enforce the accused’s civil liability; and

2. whether the respondent is liable for damages arising from the libelous remarks despite his acquittal.

The Court's Ruling

We do not find the petition meritorious.

The private party may appeal the judgment of acquittal insofar as he seeks to enforce the accused’s civil liability.

The parties have conflicting interpretations of the last paragraph of Section 2, Rule 111 of the ROC, which states:

The extinction of the penal action does not carry with it extinction of the civil action.

However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. (Emphasis ours)

Muñoz claims that the last paragraph of Section 2, Rule 111 of the ROC applies only if the civil liability ex delicto is separately instituted or when the right to file it separately was properly reserved. In contrast, Co claims that Muñoz’ acquittal of the crime of libel did not extinguish the civil aspect of the case because Muñoz’ utterance of the libelous remarks remains undisputed. We reject Muñoz’ claim. The last paragraph of Section 2, Rule 111 of the ROC applies to civil actions to claim civil liability arising from the offense charged, regardless if the action is instituted with or filed separately from the criminal action. Undoubtedly, Section 2, Rule 111 of the ROC governs situations when the offended party opts to institute the civil action separately from the criminal action; hence, its title "When separate civil action is suspended." Despite this wording, the last paragraph, by its terms, governs all claims for civil liability ex delicto.

This is based on Article 100 of the RPC which states that that "[e]very person criminally liable for a felony is also civilly liable." Each criminal act gives rise to two liabilities: one criminal and one civil. Reflecting this policy, our procedural rules provide for two modes by which civil liability ex delicto may be enforced:

(1) through a civil action that is deemed impliedly instituted in the criminal action;25

(2) through a civil action that is filed separately, either before the criminal action or after, upon reservation of the right to file it separately in the criminal action.26

The offended party may also choose to waive the civil action.27

This dual mode of enforcing civil liability ex delicto does not affect its nature, as may be apparent from a reading of the second paragraph of Section 2, Rule 120 of the ROC, which states:

Section 2. Contents of the judgment. – x x x In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.(Emphasis ours)

If, as Muñoz suggests, the extinction of the penal action carries with it the extinction of the civil action that was instituted with the criminal action, then Section 2, Rule 120 of the ROC becomes an irrelevant provision. There would be no need for the judgment of the acquittal to determine whether "the act or omission from which the civil liability may arise did not exist." The Rules precisely require the judgment to declare if there remains a basis to hold the accused civilly liable despite acquittal so that the offended party may avail of the proper remedies to enforce his claim for civil liability ex delicto.

In Ching v. Nicdao and CA,28 the Court ruled that an appeal is the proper remedy that a party – whether the accused or the offended party – may avail with respect to the judgment:

If the accused is acquitted on reasonable doubt but the court renders judgment on the civil aspect of the criminal case, the prosecution cannot appeal from the judgment of acquittal as it would place the accused in double jeopardy.

However, the aggrieved party, the offended party or the accused or both may appeal from the judgment on the civil aspect of the case within the period therefor.

From the foregoing, petitioner Ching correctly argued that he, as the offended party, may appeal the civil aspect of the case notwithstanding respondent Nicdao’s acquittal by the CA. The civil action was impliedly instituted with the criminal action since he did not reserve his

right to institute it separately nor did he institute the civil action prior to the criminal action. (Emphasis ours)

Moreover, an appeal is favored over the institution of a separate civil action because the latter would only add to our clogged dockets.29

To reiterate, the extinction of the penal action does not necessarily carry with it the extinction of the civil action, whether the latter is instituted with or separately from the criminal action. The offended party may still claim civil liability ex delicto if there is a finding in the final judgment in the criminal action that the act or omission from which the liability may arise exists. Jurisprudence has enumerated three instances when, notwithstanding the accused’s acquittal, the offended party may still claim civil liability

ex delicto:

(a) if the acquittal is based on reasonable doubt as only preponderance of evidence is required;

(b) if the court declared that the liability of the accused is only civil; and

(c) if the civil liability of the accused does not arise from or is not based upon the crime of which the accused is acquitted.

We thus now proceed to determine if Co’s claim falls under any of these three situations.

The respondent is not civilly liable because no libel was committed.

The CA has acquitted Muñoz of libel because his statement is a privileged communication. In libel, the existence of malice is essential as it is an element of the crime.30

The law presumes that every imputation is malicious;31 this is referred to as malice in law.

The presumption relieves the prosecution of the burden of proving that the imputations were made with malice. This presumption is rebutted if the accused proved that the imputation is true and published with good intention and justifiable motive.32

There are few circumstances wherein malice in law is inapplicable. For instance, Article 354 of the RPC further states that malice is not presumed when:

(1) a private communication made by any person to another in the performance of any legal, moral or social duty;33 and

(2) a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.34

Jurisprudence supplements the enumeration in Article 354 of the RPC. In Borjal v. CA,35 we held that in view of the constitutional right on the freedoms of speech and of the press, fair commentaries on matters of public interest are privileged. In Guingguing v. CA,36 we ruled that the remarks directed against a public figure are likewise privileged. In order to justify a conviction in libel involving privileged communication, the prosecution must establish that the libelous statements were made or published with actual malice or malice in fact – the knowledge that the statement is false or with reckless disregard as to whether or not it was true.37

In other words, our rulings in Borjal and Guingguing show that privileged communication has the effect of destroying the presumption of malice or malice in law and consequently requiring the prosecution to prove the existence of malice in fact.

In the present case, the CA declared that the libelous remarks are privileged. The legal conclusion was arrived at from the fact that Co is a public figure, the subject matter of the libelous remarks was of public interest, and the context of Munoz’ statements were fair comments. Consequently, malice is o longer presumed and the prosecution has the burden of providing that Munoz acted with malice in fact. The CA found that the prosecution failed in this respect.

Co assails the CA’s ruling by raising arguments that essentially require a review of the CA’s factual and legal findings. However, the Court cannot, through the present petition, review these findings without going against the requirements of Rule 45 with respect to factual matters, and without violating Munoz’ right against double jeopardy given that the acquittal is essentially anchored on question of fact.

In light of the priviledge nature of Munoz’ statements and the failure of the prosectionto prove malice in fact, there was no libel that was committed by Munoz. Without the crime, no civil liability ex delicto may be claimed by Co That can be pursued in the present petition. There is no act from which civil liability may arise that exists.

WHEREFORE, premises considered, we DENY the petition. The Decision of the Court of Appeals (CA) in CA-G.R. CR No. 29355 dated January 31, 2007 is AFFIRMED.

SO ORDERED.

ARTURO D. BRIONAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate Justice

Chairperson

MARIANO C. DEL CASTILLOAssociate Justice

JOSE PORTUGAL PEREZAssociate Justice

ESTELLA M. PERLAS-BERNABEAssociate Justice

A T T E S T A T I O N

I attest that the conclusion 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.

ANTONIO T. CARPIOAssociate JusticeChairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division’s Chairperson 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. SERENOChief Justice

epublic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 191411 July 15, 2013

RAFAEL L. COSCOLLUELA, Petitioner, vs.SANBIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE PHILIPPINES, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 191871

EDWIN N. NACIONALES, ERNESTO P. MALVAS, and JOSE MA. G. AMUGOD, Petitioners, vs.SANDIGANBAYAN (FIRST DIVISION) and PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents.

D E C I S I O N

PERLAS-BERNABE, J.:

Assailed in these consolidated Petitions for Certiorari1 are the October 6, 20092 and February 10, 20103Resolutions of public respondent First Division of Sandiganbayan (SB), denying the Motion to Quash4 dated July 8, 2009 filed by petitioner Rafael L. Coscolluela (Coscolluela). The said motion was adopted by petitioners Edwin N. Nacionales (Nacionales), Dr. Ernesto P. Malvas (Malvas), and Jose Ma. G. Amugod (Amugod), praying for the dismissal of Crim. Case No. SB-09-CRM-0154 for violation of their right to speedy disposition of cases.

The Facts

Coscolluela served as governor of the Province of Negros Occidental (Province) for three (3) full terms which ended on June 30, 2001. During his tenure, Nacionales served as his Special Projects Division Head, Amugod as Nacionales’ subordinate, and Malvas as Provincial Health Officer.5

On November 9, 2001, the Office of the Ombudsman for the Visayas (Office of the Ombudsman) received a letter-complaint6 dated November 7, 2001 from People’s Graftwatch, requesting for assistance to investigate the anomalous purchase of medical and agricultural equipment for the Province in the amount of P20,000,000.00 which allegedly happened around a month before Coscolluela stepped down from office.

Acting on the letter-complaint, the Case Building Team of the Office of the Ombudsman conducted its investigation, resulting in the issuance of a Final Evaluation Report7 dated April 16, 2002 which upgraded the complaint into a criminal case against petitioners.8 Consequently, petitioners filed their respective counter-affidavits.9

On March 27, 2003, the assigned Graft Investigation Officer Butch E. Cañares (Cañares) prepared a Resolution (March 27, 2003 Resolution), finding probable cause against petitioners for violation of Section 3(e) of Republic Act No. (RA) 3019, otherwise known as the "Anti-Graft and Corrupt Practices Act," and recommended the filing of the corresponding information. On even date, the Information10 was prepared and signed by Cañares and submitted to Deputy

Ombudsman for the Visayas Primo C. Miro (Miro) for recommendation. Miro recommended the approval of the Information on June 5, 2003. However, the final approval of Acting Ombudsman Orlando C. Casimiro (Casimiro), came only on May 21, 2009, and on June 19, 2009, the Information was filed before the SB.

Petitioners alleged that they learned about the March 27, 2003 Resolution and Information only when they received a copy of the latter shortly after its filing with the SB.11

On July 9, 2009, Coscolluela filed a Motion to Quash,12 arguing, among others, that his constitutional right to speedy disposition of cases was violated as the criminal charges against him were resolved only after almost eight (8) years since the complaint was instituted. Nacionales, Malvas, and Amugod later adopted Coscolluela’s motion.

In reply, the respondents filed their Opposition to Motion to Quash13 dated August 7, 2009, explaining that although the Information was originally dated March 27, 2003, it still had to go through careful review and revision before its final approval. It also pointed out that petitioners never raised any objections regarding the purported delay in the proceedings during the interim.14

The Ruling of the Sandiganbayan

In a Resolution15 dated October 6, 2009, the SB denied petitioners’ Motion to Quash for lack of merit. It held that the preliminary investigation against petitioners was actually resolved by Cañares on March 27, 2003, one (1) year and four (4) months from the date the complaint was filed, or in November 9, 2001. Complying with internal procedure, Cañares then prepared the March 27, 2003 Resolution and Information for the recommendation of the Miro and eventually, the final approval of the Casimiro. As these issuances had to undergo careful review and revision through the various levels of the said office, the period of delay – i.e., from March 27, 2003 to May 21, 2009, or roughly over six (6) years – cannot be deemed as inordinate16 and as such, petitioners’ constitutional right to speedy disposition of cases was not violated.17

Aggrieved, petitioners filed their respective Motions for Reconsideration18 dated November 9, 2009 and November 6, 2009, similarly arguing that the SB erred in making a distinction between two time periods, namely: (a) from the filing of the complaint up to the time Cañares prepared the resolution finding probable cause against petitioners; and (b) from the submission of the said resolution to the Acting Ombudsman for review and approval up to the filing of the Information with the SB. In this regard, petitioners averred that the aforementioned periods should not be compartmentalized and thus, treated as a single period. Accordingly, the delay of eight (8) years of the instant case should be deemed prejudicial to their right to speedy disposition of cases.19

The SB, however, denied the foregoing motions in its Resolution20 dated February 10, 2010 for lack of merit.

Hence, the instant petitions.

The Issue Before the Court

The sole issue raised for the Court’s resolution is whether the SB gravely abused its discretion in finding that petitioners’ right to speedy disposition of cases was not violated.

The Court’s Ruling

The petitions are meritorious.

A person’s right to the speedy disposition of his case is guaranteed under Section 16, Article III of the 1987 Philippine Constitution (Constitution) which provides:

SEC. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

This constitutional right is not limited to the accused in criminal proceedings but extends to all parties in all cases, be it civil or administrative in nature, as well as all proceedings, either judicial or quasi-judicial. In this accord, any party to a case may demand expeditious action to all officials who are tasked with the administration of justice.21

It must be noted, however, that the right to speedy disposition of cases should be understood to be a relative or flexible concept such that a mere mathematical reckoning of the time involved would not be sufficient.22Jurisprudence dictates that the right is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried.23

Hence, in the determination of whether the defendant has been denied his right to a speedy disposition of a case, the following factors may be considered and balanced: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.24

Examining the incidents in the present case, the Court holds that petitioners’ right to a speedy disposition of their criminal case had been violated.

First, it is observed that the preliminary investigation proceedings took a protracted amount of time to complete.

In this relation, the Court does not lend credence to the SB’s position that the conduct of preliminary investigation was terminated as early as March 27, 2003, or the time when Cañares prepared the Resolution recommending the filing of the Information. This is belied by Section 4,

Rule II of the Administrative Order No. 07 dated April 10, 1990, otherwise known as the "Rules of Procedure of the Office of the Ombudsman," which provides:

SEC. 4. Procedure – The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

x x x x

No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other cases. (Emphasis and underscoring supplied)

The above-cited provision readily reveals that there is no complete resolution of a case under preliminary investigation until the Ombudsman approves the investigating officer’s recommendation to either file an Information with the SB or to dismiss the complaint. Therefore, in the case at bar, the preliminary investigation proceedings against the petitioners were not terminated upon Cañares’ preparation of the March 27, 2003 Resolution and Information but rather, only at the time Casimiro finally approved the same for filing with the SB. In this regard, the proceedings were terminated only on May 21, 2009, or almost eight (8) years after the filing of the complaint.

Second, the above-discussed delay in the Ombudsman’s resolution of the case largely remains unjustified.

To this end, the Court equally denies the SB’s ratiocination that the delay in proceedings could be excused by the fact that the case had to undergo careful review and revision through the different levels in the Office of the Ombudsman before it is finally approved, in addition to the steady stream of cases which it had to resolve.

Verily, the Office of the Ombudsman was created under the mantle of the Constitution, mandated to be the "protector of the people" and as such, required to "act promptly on complaints filed in any form or manner against officers and employees of the Government, or of any subdivision, agency or instrumentality thereof, in order to promote efficient service."25 This great responsibility cannot be simply brushed aside by ineptitude. Precisely, the Office of the Ombudsman has the inherent duty not only to carefully go through the particulars of case but also to resolve the same within the proper length of time. Its dutiful performance should not only be gauged by the quality of the assessment but also by the

reasonable promptness of its dispensation. Thus, barring any extraordinary complication, such as the degree of difficulty of the questions involved in the case or any event external thereto that effectively stymied its normal work activity – any of which have not been adequately proven by the prosecution in the case at bar – there appears to be no justifiable basis as to why the Office of the Ombudsman could not have earlier resolved the preliminary investigation proceedings against the petitioners.

Third, the Court deems that petitioners cannot be faulted for their alleged failure to assert their right to speedy disposition of cases.

Records show that they could not have urged the speedy resolution of their case because they were unaware that the investigation against them was still on-going. They were only informed of the March 27, 2003 Resolution and Information against them only after the lapse of six (6) long years, or when they received a copy of the latter after its filing with the SB on June 19, 2009.26 In this regard, they could have reasonably assumed that the proceedings against them have already been terminated. This serves as a plausible reason as to why petitioners never followed-up on the case altogether. Instructive on this point is the Court’s observation in Duterte v. Sandiganbayan,27 to wit:

Petitioners in this case, however, could not have urged the speedy resolution of their case because they were completely unaware that the investigation against them was still on-going. Peculiar to this case, we reiterate, is the fact that petitioners were merely asked to comment, and not file counter-affidavits which is the proper procedure to follow in a preliminary investigation. After giving their explanation and after four long years of being in the dark, petitioners, naturally, had reason to assume that the charges against them had already been dismissed.

On the other hand, the Office of the Ombudsman failed to present any plausible, special or even novel reason which could justify the four-year delay in terminating its investigation. Its excuse for the delay — the many layers of review that the case had to undergo and the meticulous scrutiny it had to entail — has lost its novelty and is no longer appealing, as was the invocation in the Tatad case. The incident before us does not involve complicated factual and legal issues, specially (sic) in view of the fact that the subject computerization contract had been mutually cancelled by the parties thereto even before the Anti-Graft League filed its complaint. (Emphasis and underscoring supplied)

Being the respondents in the preliminary investigation proceedings, it was not the petitioners’ duty to follow up on the prosecution of their case. Conversely, it was the Office of the Ombudsman’s responsibility to expedite the same within the bounds of reasonable timeliness in view of its mandate to promptly act on all complaints lodged before it. As pronounced in the case of Barker v. Wingo:28

A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.

Fourth, the Court finally recognizes the prejudice caused to the petitioners by the lengthy delay in the proceedings against them.

Lest it be misunderstood, the right to speedy disposition of cases is not merely hinged towards the objective of spurring dispatch in the administration of justice but also to prevent the oppression of the citizen by holding a criminal prosecution suspended over him for an indefinite time. Akin to the right to speedy trial, its "salutary objective" is to assure that an innocent person may be free from the anxiety and expense of litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose.30 This looming unrest as well as the tactical disadvantages carried by the passage of time should be weighed against the State and in favor of the individual. In the context of the right to a speedy trial, the Court in Corpuz v. Sandiganbayan31 (Corpuz) illumined:

A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis.

x x x Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy.

Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the ordinary processes of justice.

Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense

should be weighted heavily against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the prosecution or a missing witness should be weighted less heavily against the State. x x x (Emphasis and underscoring supplied; citations omitted)

As the right to a speedy disposition of cases encompasses the broader purview of the entire proceedings of which trial proper is but a stage, the above-discussed effects in Corpuz should equally apply to the case at bar. As held in Dansal v. Fernandez, Sr.:32

Sec. 16, Article III of the 1987 Constitution, reads:

"Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies."

Initially embodied in Section 16, Article IV of the 1973 Constitution, the aforesaid constitutional provision is one of three provisions mandating speedier dispensation of justice. It guarantees the right of all persons to "a speedy disposition of their case"; includes within its contemplation the periods before, during and after trial, and affords broader protection than Section 14(2), which guarantees just the right to a speedy trial. It is more embracing than the protection under Article VII, Section 15, which covers only the period after the submission of the case. The present constitutional provision applies to civil, criminal and administrative cases. (Emphasis and underscoring supplied; citations omitted)

Thus, in view of the unjustified length of time miring the Office of the Ombudsman’s resolution of the case as well as the concomitant prejudice that the delay in this case has caused, it is undeniable that petitioners’ constitutional right to due process and speedy disposition of cases had been violated. As the institutional vanguard against corruption and bureaucracy, the Office of the Ombudsman should create a system of accountability in order to ensure that cases before it are resolved with reasonable dispatch and to equally expose those who are responsible for its delays, as it ought to determine in this case.

Corollarily, for the SB’s patent and utter disregard of the existing laws and jurisprudence surrounding the matter, the Court finds that it gravely abused its discretion when it denied the quashal of the Information. Perforce, the assailed resolutions must be set aside and the criminal case against petitioners be dismissed.

While the foregoing pronouncement should, as matter of course, result in the acquittal of the petitioners, it does not necessarily follow that petitioners are entirely exculpated from any civil liability, assuming that the same is proven in a subsequent case which the Province may opt to pursue.

Section 2, Rule 111 of the Rules of Court provides that an acquittal in a criminal case does not bar the private offended party from pursuing a subsequent civil case based on the delict, unless the judgment of acquittal explicitly declares that the act or omission from which the civil liability may arise did not exist.33 As explained in the case of Abejuela v. People,34 citing Banal v. Tadeo, Jr.:35

The Rules provide: "The extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered."

x x x x

In Banal vs. Tadeo, Jr., we declared:

"While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law."(Emphasis and underscoring supplied)

Based on the violation of petitioners’ right to speedy disposition of cases as herein discussed, the present case stands to be dismissed even before either the prosecution or the defense has been given the chance to present any evidence. Thus, the Court is unable to make a definite pronouncement as to whether petitioners indeed committed the acts or omissions from which any civil liability on their part might arise as prescribed under Section 2, Rule 120 of the Rules of Court.36 Consequently, absent this pronouncement, the Province is not precluded from instituting a subsequent civil case based on the delict if only to recover the amount of P20,000,000.00 in public funds attributable to petitioners’ alleged malfeasance.

WHEREFORE, the petitions are hereby GRANTED. The assailed Resolutions dated October 6, 2009 and February 10, 2010 of the First Division of the Sandiganbayan are ANNULLED and SET ASIDE. The Sandiganbayan is likewise ordered to DISMISS Crim. Case No. SB-09-CRM-0154 for violation of the Constitutional right to speedy disposition of cases of petitioners Rafael L. Coscolluela, Edwin N. Nacionales, Dr. Ernesto P. Malvas, and Jose Ma. G. Amugod, without prejudice to any civil action which the Province of Negros Occidental may file against petitioners.

SO ORDERED.

ESTELA M. PERLAS-BERNABEAssociate Justice

WE CONCUR:


Chairperson



JOSE CATRAL MENDOZA*Associate Justice


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



Pursuant to 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 cases were assigned to the writer of the opinion of the Court's Division .



Manila

SECOND DIVISION

G.R. No. 178947 June 26, 2013

VIRGINIA DE LOS SANTOS-DIO, as authorized representative of H.S. EQUITIES, LTD., and WESTDALE ASSETS, LTD., Petitioner, vs.THE HONORABLE COURT OF APPEALS, JUDGE RAMON S. CAGUIOA, in his capacity as Presiding Judge of Branch 74, Regional Trial Court, Olongapo City, and TIMOTHY J. DESMOND, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 179079

PEOPLE OF THE PHILIPPINES, Petitioner, vs.TIMOTHY J. DESMOND, Respondent.

D E C I S I O N

PERLAS-BERNABE, J.:

Before the Court are consolidated petitions for review on certiorari1 assailing the November 8, 2006 Decision2and July 19, 2007 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 88285, upholding the validity of the trial court’s dismissal of separate criminal informations for estafa against private respondent Timothy J. Desmond (Desmond) due to lack of probable cause.

The Facts

In 2001, petitioner Virginia De Los Santos-Dio (Dio), the majority stockholder of H.S. Equities, Ltd. (HS Equities) and authorized representative of Westdale Assets, Ltd. (Westdale),4 was introduced to Desmond, the Chairman and Chief Executive Officer (CEO) of the Subic Bay Marine Exploratorium, Inc. (SBMEI), and the authorized representative of Active Environments, Inc. and JV China, Inc. (JV China), the majority shareholder of SBMEI.5After some discussion on possible business ventures, Dio, on behalf of HS Equities, decided to invest a total of US$1,150,000.006 in SBMEI’s Ocean Adventure Marine Park (Ocean Adventure), a theme park to be constructed at the Subic Bay Freeport Zone which, when operational, would showcase live performances of false-killer whales and sea lions. In this relation, Dio claimed that Desmond led her to believe that SBMEI had a capital of US$5,500,000.00, inclusive of the value of the marine mammals to be used in Ocean Adventure,7 and also guaranteed substantial returns on investment.8 Desmond even presented a Business Plan, indicating that: (a) Ocean Adventure’s "attendance will rise from 271,192 in 2001 to just over 386,728 in 2006, with revenues rising from US$4,420,000.00 million to US$7,290,000.00 million in the same time frame"; (b) "early investors are expected to reap an annual return of 23% in 2001, rising to 51% in 2006"; and (c) "fully priced shares would yield a 19% return] in 2001, rising to 42% in

2006."9 Thus, on January 18, 2002, a Subscription Agreement10 was executed by Desmond, as representative of SBMEI and JV China, and Dio, as representative of HS Equities.

While no Certificate of Stock was issued either to HS Equities or to Dio, HS Equities was expressly granted minority protection rights in a subsequent Subscription and Shareholders Agreement11 dated March 12, 2002, stating that there shall be "a nominee of the Subscriber to be elected as Treasurer/Chief Financial Officer, who may not be removed by the Board of Directors without the affirmative vote of the Subscriber."12 Accordingly, Dio was elected as a member of SBMEI’s Board of Directors and further appointed as its Treasurer.13 The parties later executed two (2) Investor’s Convertible Promissory Notes – one dated April 4, 200114 and another dated May 8, 200115 – covering HS Equities’ infusion of a total of US$1,000,000.00 for the purpose of purchasing machinery, equipment, accessories, and materials to be used for the construction of Ocean Adventure.

In June 2002, Dio, this time on behalf of Westdale, invested another US$1,000,000.0016 in a separate business venture, called the Miracle Beach Hotel Project (Miracle Beach), which involved the development of a resort owned by Desmond adjoining Ocean Adventure. They agreed that the said investment would be used to settle SBMEI’s P40,000,000.00 loan obligation to First Metro Investment Corporation and for the construction of 48 lodging units/cabanas.17 However, when the corresponding subscription agreement was presented to Dio by SBMEI for approval, it contained a clause stating that the "funds in the Subscription Bank Account" were also to be used for the "funding of Ocean Adventure’s Negative Cash Flow not exceeding US$200,000.00."18 This was in conflict with the exclusive purpose and intent of Westdale’s investment in Miracle Beach and as such, Dio refused to sign the subscription agreement.

Dio further claimed that she found out that, contrary to Desmond’s representations, SBMEI actually had no capacity to deliver on its guarantees, and that in fact, as of 2001, it was incurring losses amounting toP62,595,216.00.19 She likewise claimed to have discovered false entries in the company’s books and financial statements – specifically, its overvaluation of the marine animals and its non-disclosure of the true amount of JV China’s investment20 – which prompted her to call for an audit investigation. Consequently, Dio discovered that, without her knowledge and consent, Desmond made certain disbursements from Westdale’s special account, meant only for Miracle Beach expenditures (special account), and diverted a total of US$72,362.78 therein for the operating expenses of Ocean Adventure.21 When Desmond refused to execute an undertaking to return the diverted funds, Dio, in her capacity as Treasurer of SBMEI, suspended the release of the remaining funds in the aforesaid special account.22

Eventually, after Dio was ousted as Director and Treasurer of SBMEI,23 she filed, on April 19, 2004, two (2) criminal complaints24 (subject criminal complaints) for estafa (a) through false pretenses under Article 315(1)(b)25 of the Revised Penal Code26 (RPC); and (b) with unfaithfulness or abuse of confidence through misappropriation or conversion under Article

315(2)(a)27 of the RPC, both against Desmond before the Olongapo City Prosecutor’s Office (City Prosecutor’s Office), docketed as IS Nos. 04-M-992 and 04-M-993.

In defense, Desmond maintained that his representation of himself as Chairman and CEO of SBMEI was not a sham and that Dio has not even proven that he did not have the expertise and qualifications to double her investment. Among others, he also denied having been fired from Beijing Landa Aquarium Co. Ltd. for his supposed incompetence and mismanagement. He further asserted that it was not deceitful to value the marine mammals at US$3,720,000.00 as equity contribution of JV China in SBMEI, notwithstanding the fact that two (2) false killer whales had already perished before the company could start operations. This is because the said valuation, in any case, would be based on the collective income-earning capacity of the entire animal operating system derived from revenues generated by marine park attendance and admission fees.28

In reply, Dio insisted that SBMEI, at the outset, never had sufficient assets or resources of its own because, contrary to Desmond’s claims, the total amount of US$2,300,000.00 it purportedly invested in buildings and equipment actually came from the investments Dio’s company made in SBMEI.29

After the preliminary investigation, the City Prosecutor issued a Resolution30 dated August 26, 2004, finding probable cause against Desmond for the abovementioned crimes, to wit:

The foregoing clearly applies in the instant two (2) cases as borne out by the following facts, to with [sic]: (1) Desmond, as the Chairman and Chief Executive Office of SBMEI and in order to persuade Dio to invest, represented that he possessed the necessary influence, expertise and resources (in terms of credit and property) for the project knowing the same to be false as he never had the capital for the project as borne out by his correspondences with Dio; and (2) Dio fell for these misrepresentations and the lure of profit offered by Desmond, thereby being induced to invest the amounts of $1,150,000.00 and $1,000,000.00 to the damage and prejudice of her company.

The elements of the crimes charged were thus established in these cases, namely Dio parted with her money upon the prodding and enticement of respondent on the false pretense that he had the capacity and resources for the proposed project. In the end, Dio was not able to get her money back, thus causing her damage and prejudice. Moreover, such defraudation or misappropriation having been committed by Desmond through his company SBMEI involving funds solicited from Dio as a member of the general public in contravention of the public interest, the probable cause clearly exists to indict Desmond for the crime of Estafa under Article 315 (1)(b) and (2)(a) of the Revised Penal Code in relation to PD No. 1689.31

In view of the foregoing, corresponding criminal informations32 (subject informations) were filed with the Regional Trial Court of Olongapo City, Branch 74 (RTC), docketed as Criminal Case Nos. 516-2004 and 515-2004. The accusatory portions thereof read as follows:

Criminal Case No. 516-200433

That in or about and sometime in early 2001, in Olongapo City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being the officer of Subic Bay Marine Exploration, Inc. (SBMEI), acting as a syndicate and by means of deceit, did then and there, willfully, unlawfully and feloniously defraud H.S. EQUITIES LIMITED, represented in this case by Virginia S. Delos Santos-Dio in the following manner, to wit: the said accused by means of false manifestations and fraudulent representations which he made to said Virginia S. Delos Santos-Dio to the effect that he had the expertise and qualifications, as well as the resources, influence, credit and business transaction with the Subic Bay Metropolitan Authority (SBMA) and other financing institutions to ensure the viability of the Subic Bay Marine Exploration Ocean Adventure Project (SBMEOA), which he represented to be a qualified and legally existing investment enterprise with capacity to solicit investment from the general public, by submitting documents for the purpose, which representations he knew to be false and fraudulent and the supporting documents are similarly spurious and were only made in order to induce said Virginia S. Delos Santos-Dio to invest and deliver as in fact she invested and delivered a total amount of One Million One Hundred Fifty Thousand US Dollars ($1,150,000.00) to the said accused on the strength of said manifestations and representations and supporting documents, and said accused, once in possession of the said amount, misapplied, converted and misappropriated the same to his own personal use and benefit, to the damage and prejudice of H.S. Equities Limited in the amount of US $1,150,000.00 or Php57,500,000.00 Pesos, the dollar computed at the rate of Php 50.00 to [US]$1.00 which was the prevailing rate of exchange of a dollar to peso at the time of the commission of the offense.

CONTRARY TO LAW.

Criminal Case No. 515-200434

That in or about and sometime during the period from June 2002 to July 2002, in Olongapo City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully and feloniously defraud Westdale Assets, Limited represented in this case by Virginia S. Delos Santos-Dio in the following manner to wit: the said accused received in trust and for administration from the said Virginia S. Delos Santos-Dio the amount of One Million US Dollars ($1,000,000.00) under the express obligation of using the same to pay the loan facility of the Subic Bay Marine Exploration, Inc. (SBMEI) with First Metro Investment Corporation and to fund the construction and development of the Miracle Beach Project but the said accused, once in possession of the said amount, with grave abuse of confidence and with intent to defraud, misapplied, misappropriated and converted the same for his own use and benefit by devoting it to a purpose or use different from that agreed upon and despite repeated demands made upon him to account for and to return the said amount, he failed and refused and still fails and refuses to do so, to the damage and prejudice of the said Westdale Assets, Limited in the amount of US $1,000,000.00 or its equivalent to FIFTY MILLION (Php 50,000,000.00) Pesos, Philippine Currency, the dollar being computed at the rate of Php50.00 to $ 1.00 which was the prevailing rate of exchange at the

commission of the offense, to the damage and prejudice of the latter in the aforementioned amount.

CONTRARY TO LAW.

Aggrieved, Desmond filed a Motion for Reconsideration,35 as well as a Motion to Withdraw Filed Informations.36He also filed before the RTC a Motion to Defer Further Proceedings and to Defer Issuance of Warrant of Arrest37but subsequently withdrew the same and filed, instead, a Motion for Judicial Determination of Probable Cause.38

The RTC Ruling

In an Order39 dated October 21, 2004, the RTC ruled in favor of Desmond and declared that no probable cause exists for the crimes charged against him since the elements of estafa were not all present, to wit:

First, the element of misrepresentation or deceit found in par. 2 (a) Article 315 of the Revised Penal Code is absent. It must be emphasized that the promises allegedly made to the complainant by the accused that her company’s investment will significantly increase, clearly appeared in the Subic Bay Marine Exploration, Inc.’s ("SBMEI", for brevity) printed business plan dated January 12, 2001 (Annex "A", Complaint-Affidavit dated 19 April 2004). Verily, this is SBMEI’s representation or "come on" to would-be investors and not a personal assurance of the accused. The fact that accused was the company’s Chief Executive Officer and Chairman of the Board of Directors is of no moment in the absence of any evidence to show that accused personally prepared the business plan thereby making the alleged "rosy picture" his own personal enticements to the complainant. Therefore, there being a dearth of evidence pointing to the accused as author of the SBMEI’s business plan, any misrepresentation or deceit committed cannot be personally attributed to him.

Furthermore, the court cannot find any sufficient evidence that the accused personally assured the complainant about his so-called power, influence and credit with the SBMA and other financial institutions that would supposedly insure the viability and profitability of the project. Note that nowhere in the Complaint-Affidavit of the private complainant are there specific factual allegations that would show that the accused had personal business meetings with the SBMA and said financial institutions. As to how and in what manner and scope accused exercised such alleged power, influence and credit over these juridical entities remain a bare and self-serving averment in the absence of any factual detail or account.

Finally, it cannot be gainsaid [sic] that accused was the one who personally valuated the marine mammals contributed by JV China Incorporated to the Subic Bay Marine Exploration, Inc. as capital amounting to US$3.724 Million. Evidence clearly point to an independent valuation done by a third party namely Beijing Landa Aquarium that valued the marine mammals under the Buy-Out Agreement dated September 9, 1998. Needless to state, the onus

is on complainant to controvert this valuation. Again, however, no adequate proof was adduced along this line.

Second, the element of personal misappropriation by the accused under par. 1(b) Article 315 of the Revised Penal Code is likewise not present. While it may be conceded that there was money utilized to pay salaries of expatriates and staff as well as the cost of utilities amounting to US$72,272.00 complainant failed to show that said money was taken from her companies’ investments in SBMEI. It must be pointed out that other than complainant’s bare allegation, there was no document presented categorically stating that the investment of complainant’s companies were earmark for a particular payment or project. Hence, when the investment entered SBMEI’s financial coffers, the same presumably were co-mingled with other monies of the corporation.

Moreover and more revealing, is the fact that again there was no showing that it was accused who personally caused the payment of these expenses allegedly in violation of the objective of the investment. It must be noted that SBMEI is a corporation and not a single proprietorship. Being a corporation, expenses paid of such a kind as utilities and salaries are not authorized personally and solely by the President nor the Chief Executive Officer nor even by the Chairman of the Board for that matter. These are corporate acts that are passed through board resolutions. Hence, these corporate acts can in no way be considered personal acts of the accused. Yet, he was singled out among all 5 members of the Board of Directors who presumably, in the ordinary course of business, approved by resolution the payments of such utilities and salaries. Consequently, there is again insufficiency of evidence that the accused alone caused the payment of these salaries and utilities for the sole purpose of pocketing the money thereby using the same for personal gain.40

Consequently, the RTC denied the issuance of a warrant of arrest and hold departure order against Desmond and ordered the dismissal of the cases against him:

WHEREFORE, foregoing considered, the subject motion for judicial determination of probable cause is favorably granted. There being no probable cause, the cases against the accused must be dismissed as they are hereby DISMISSED. The motions to issue warrant of arrest and Hold

Departure Order as well as the prayer for provisional remedy are necessarily DENIED.

SO ORDERED.41

Given the RTC’s dismissal of the foregoing criminal cases, the City Prosecutor’s Office filed motion for reconsideration which was, however, denied. As such, it filed a petition for certiorari and mandamus42 before the CA on the ground of grave abuse of discretion. Relatedly, Dio also filed a petition-in-intervention43 before the CA, praying for the reinstatement of the subject criminal complaints.

The CA Ruling

In its November 8, 2006 Decision,44 the CA upheld the RTC’s authority to dismiss a criminal case if in the process of determining probable cause for issuing a warrant of arrest, it also finds the evidence on record insufficient to establish probable cause. It explained that such dismissal is an exercise of judicial discretion sanctioned under Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure. On this score, the CA evaluated the evidence presented and agreed with the RTC’s conclusions that there was no sufficient basis showing that Desmond committed estafa by means of false pretenses. Neither was it established that the money sourced from petitioner Dio was converted by respondent Desmond for some other purpose other than that for which it was intended. Pertinent portions of the CA Decision restated the RTC’s observations in this wise:

In the instant case, the alleged false representations by Desmond which allegedly induced private complainants H.S. Equities, Ltd. ("H.S. Equities") and Dio, to part with their money are not supported by the facts on record. First, the alleged false representation employed by Desmond with respect to his expertise and qualifications in the form of influence, credit and business transactions with the Subic Bay Metropolitan Authority (SBMA) and financial institutions and such resources to enable private complainants to double its investment with SBMEI has not been shown to be false.

Indeed, nowhere in the documentary evidence presented by private complainants that allegedly contained the above false representations does it show that it was private respondent himself who made such representation. Notably, the SBMEI’s Business Plan dated January 12, 2001 to which private complainants anchor such allegation does not indicate that the representations made therein came personally from Desmond. In addition, neither does it appear from such document that the statements therein were used as a form of a personal assurance coming from Desmond that private complainants would indeed double the amount they had invested with SBMEI. If at all, we agree with the trial court that statements made in the said business plan were merely a form of enticement to encourage would-be investors from [sic] investing in such kind of business undertaking.

Moreover, we likewise agree with the trial court that no factual allegations were made by private complainants as to how such false pretense of power and influence was made upon them by Desmond and which convinced private complainants to part with their money. It bears stressing that the allegations of false pretense of power and influence in a case of estafa are mere conclusions of law which must be substantiated at the very least by circumstances which would show that the person accused of committing estafa did indeed commit acts of false representations. As the records show, there was no misrepresentation on the part of Desmond that he is the Chairman and Chief Executive Officer of SBMEI which is a corporation engaged in the business of developing marine parks. Significantly, the records likewise show that SBMEI did indeed build and develop a marine park in Subic Bay (Ocean Adventure) for the purposes stated in its business plan and had entered into a long-term lease agreement with SBMA. Documentary evidence in the form of the Report of Independent Auditors to SBMEI

shows the amount of investment the corporation had invested in the said business undertaking. For instance, the corporation had invested the amount of P106,788,219.00 in buildings and equipment alone. It has also assets consisting of marine mammals which are necessary for the operation of the marine park. In this respect, we cannot subscribe to private complainants’ contention that there was misrepresentation on the part of private respondent that he had overvalued the worth of the marine mammals it had purchased from Beijing Landa Aquarium Co., Ltd. of the Republic of China. This claim of private complainants of the deceitful acts employed by Desmond in overpricing the value of the marine animals for US$3.724 Million when in fact the sea animals were only valued for one U.S. dollar was not corroborated by the evidence on hand.

x x x x

In the same manner, the facts in the case at bar that would allegedly constitute a criminal charge of estafa under par. 1(b) are wanting. Be it noted that under the said paragraph, estafa with unfaithfulness or abuse of confidence through misappropriation or conversion of the money, goods or any other personal property must be received in trust, on commission, for administration, or under any other obligation which involves the duty to make delivery thereof or to return the same. It is not amiss to note that a perusal of private complainants’ Complaint-Affidavit shows that subject money in the amount of US$1,000,000.00 to be used for the Miracle Beach Project was placed in a special account with Equitable-PCI Bank. As the records show, the said funds were placed by Dio under the control of Fatima Paglicawan, an employee of Westdale, such that, no money can be withdrawn from the special account without the signature of the said employee, Desmond and a certain John Corcoran. Therefore, at such time, it cannot be said that the funds were received for administration or already under the juridical possession of Desmond. Meanwhile, we would like to emphasize that to constitute conversion, it presupposes that the thing has been devoted to a purpose or use different from that agreed upon. Verily, a facial examination of the Journal Voucher and Check Voucher pertaining to the withdrawals made on such account clearly shows that the disbursements were not only authorized by Paglicawan but likewise indicated that the purpose for such withdrawals was to cover payments for BIR taxes and the salaries of local employees and expatriates.

To repeat, these withdrawals as well as the purpose thereof were known to Paglicawan when [sic] she authorized the disbursements. Paglicawan, who was designated by private complainant Dio to control the release of the said funds is presumed to have acted under the latter’s authority. Such miscommunication between Dio and Paglicawan with respect to the purpose of the funds does not make out a case of estafa there being no abuse of confidence or conversion to speak of taking into account that the said funds were released under the presumed authority of private complainants through Paglicawan, and which were indeed used for the purpose for which it was withdrawn. That being the case, there can be no damage or prejudice to Westdale and Dio as there was no disturbance in the property rights of Westdale and Dio in the said funds since the same were used for the purpose for which it was disbursed.

Then again, we agree with the trial court that there is no sufficient evidence adduced to support the criminal charges of estafa against Desmond. As pointed out by the trial court, while private respondent is the Chairman and Chief Executive Officer of SBMEI, there is no showing that he had personally and solely authorized the application of the above funds for the payment of expenses not directly connected with the Miracle Beach Project. Nor does it appear that as Chairman and Chief Executive Officer, Desmond has been appointed to execute, on his own, such corporate acts.45 (Citations omitted)

The City Prosecutor and Dio filed their respective motions for reconsideration which were both denied in a Resolution46 dated July 19, 2007.

Hence, the instant petitions.

The Issue Before the Court

The primordial issue in this case is whether or not the CA erred in finding no grave abuse of discretion on the part of the RTC when it dismissed the subject informations for lack of probable cause.

The Court’s Ruling

The petitions are meritorious.

Determination of probable cause may be either executive or judicial.

The first is made by the public prosecutor, during a preliminary investigation, where he is given broad discretion to determine whether probable cause exists for the purpose of filing a criminal information in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.47

The second is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. In this respect, the judge must satisfy himself that, on the basis of the evidence submitted, there is a necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge, therefore, finds no probable cause, the judge cannot be forced to issue the arrest warrant.48 Notably, since the judge is already duty-bound to determine the existence or non-existence of probable cause for the arrest of the accused immediately upon the filing of the information, the filing of a motion for judicial determination of probable cause becomes a mere superfluity,49 if not a deliberate attempt to cut short the process by asking the judge to weigh in on the evidence without a full-blown trial.

In the case of Co v. Republic,50 the Court emphasized the settled distinction between an executive and a judicial determination of probable cause, viz:51

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job.1âwphi1 The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge.

On this score, it bears to stress that a judge is not bound by the resolution of the public prosecutor who conducted the preliminary investigation and must himself ascertain from the latter’s findings and supporting documents whether probable cause exists for the purpose of issuing a warrant of arrest. This prerogative is granted by no less than the Constitution which provides that "no warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce."52

While a judge’s determination of probable cause is generally confined to the limited purpose of issuing arrest warrants, Section 5(a),53 Rule 112 of the Revised Rules of Criminal Procedure explicitly states that a judge may immediately dismiss a case if the evidence on record clearly fails to establish probable cause,54 viz:

SEC. 5. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, pursuant to a warrant issued by the judge who conducted preliminary investigation or when the complaint or information was filed pursuant to Section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information. (Emphasis and underscoring supplied)

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.55

In other words, once the information is filed with the court and the judge proceeds with his primordial task of evaluating the evidence on record, he may either: (a) issue a warrant of arrest, if he finds probable cause; (b) immediately dismiss the case, if the evidence on record clearly fails to establish probable cause; and (c) order the prosecutor to submit additional evidence, in case he doubts the existence of probable cause.56

Applying these principles, the Court finds that the RTC’s immediate dismissal, as affirmed by the CA, was improper as the standard of clear lack of probable cause was not observed. In this case, records show that certain essential facts – namely, (a) whether or not Desmond committed false representations that induced Dio to invest in Ocean Adventure; and (b) whether or not Desmond utilized the funds invested by Dio solely for the Miracle Beach Project for purposes different from what was agreed upon – remain controverted. As such, it cannot be said that the absence of the elements of the crime of estafa under Article 315(2)(a)57 and 315(1) (b)58of the RPC had already been established, thereby rendering the RTC’s immediate dismissal of the case highly improper.

Lest it be misconceived, trial judges will do well to remember that when a perceived gap in the evidence leads to a "neither this nor that" conclusion, a purposeful resolution of the ambiguity is preferable over a doubtful dismissal of the case. Verily, a judge's discretion to dismiss a case immediately after the filing of the information in court is appropriate only when the failure to establish probable cause can be clearly inferred from the evidence presented and not when its existence is simply doubtful. After all, it cannot be expected that upon the filing of the information in court the prosecutor would have already presented all the evidence necessary to secure a conviction of the accused, the objective of a previously-conducted preliminary investigation being merely to determine whether there is sufficient ground, to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial.59 In this light, given that the lack of probable cause had not been clearly established in this case, the CA erred, and the RTC gravely abused its discretion, by ruling to dismiss Criminal Case Nos. 515-2004 and 516-2004. Indeed, these cases must stand the muster of a full-blown trial where the parties could be given, as they should be given, the opportunity to ventilate their respective claims and defenses, on the basis of which the court a quo can properly resolve the factual disputes therein.

WHEREFORE, the petitions are GRANTED. The November 8, 2006 Decision and July 19, 2007 Resolution of the Court of Appeals in CA G.R. SP No. 88285 which affirmed the October 21, 2004 Order of Dismissal issued by the Regional Trial Court of Olongapo City, Branch 74 are SET ASIDE. The two (2) criminal informations for estafa against respondent Timothy J. Desmond in Criminal Case Nos. 515-2004 and 516-2004 are hereby REINSTATED. Accordingly, the trial court is directed to proceed with the arraignment of the accused and the trial of the case with dispatch.

SO ORDERED.

ESTELA M. PERLAS-BERNABEAssociate Justice

WE CONCUR:


Chairperson





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



Pursuant to Section I 3, 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 cases were assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENOChief Justice


Manila

THIRD DIVISION

G.R. No. 180661 December 11, 2013

GEORGE ANTIQUERA y CODES, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

ABAD, J.:

This case is about a supposed warrantless arrest and a subsequent search prompted by the police officers' chance sighting through an ajar door of the accused engaged in pot session.

The Facts and the Case

On January 13, 2004 the second Assistant City Prosecutor of Pasay City charged the accused George Codes Antiquera* and Corazon Olivenza Cruz with illegal ·possession of paraphernalia for dangerous drugs 1 before the Regional Trial Court (RTC) of Pasay City in Criminal Case 04-0100-CFM. 2 Since the accused Cruz jumped bail, the court tried her in absentia. 3

The prosecution evidence shows that at around 4:45 a.m. of February 11, 2004, PO1 Gregorio Recio, PO1 Laurence Cabutihan, P/Insp. Eric Ibon, PO1 Rodelio Rania, and two civilian operatives on board a patrol car and a tricycle were conducting a police visibility patrol on David Street, Pasay City, when they saw two unidentified men rush out of house number 107-C and immediately boarded a jeep.

Suspecting that a crime had been committed, the police officers approached the house from where the men came and peeked through the partially opened door. PO1 Recio and PO1 Cabutihan saw accused Antiquera holding an improvised tooter and a pink lighter. Beside him was his live-in partner, Cruz, who was holding an aluminum foil and an improvised burner. They sat facing each other at the living room. This prompted the police officers to enter the house, introduce themselves, and arrest Antiquera and Cruz.4

While inspecting the immediate surroundings, PO1 Cabutihan saw a wooden jewelry box atop a table. It contained an improvised burner, wok, scissors, 10 small transparent plastic sachets with traces of white crystalline substance, improvised scoop, and seven unused strips of aluminum foil. The police officers confiscated all these and brought Antiquera and Cruz to the Drug Enforcement Unit of the Philippine National Police in Pasay City for further investigation and testing.5

A forensic chemical officer examined the confiscated drug paraphernalia and found them positive for traces of methamphetamine hydrochloride or "shabu."6

Accused Antiquera gave a different story. He said that on the date and time in question, he and Cruz were asleep in their house when he was roused by knocking on the door. When he went

to open it, three armed police officers forced themselves into the house. One of them shoved him and said, "D’yan ka lang, pusher ka." He was handcuffed and someone instructed two of the officers to go to his room. The police later brought accused Antiquera and Cruz to the police station and there informed them of the charges against them. They were shown a box that the police said had been recovered from his house.7

On July 30, 2004 the RTC rendered a Decision8 that found accused Antiquera and Cruz guilty of the crime charged and sentenced them to a prison term ranging from six months and one day to two years and four months, and to pay a fine of P10,000.00 each and the costs of the suit.

The RTC said that the prosecution proved beyond reasonable doubt that the police caught accused Antiquera and Cruz in the act of using shabu and having drug paraphernalia in their possession. Since no ill motive could be attributed to PO1 Recio and PO1 Cabutihan, the court accorded full faith and credit to their testimony and rejected the self-serving claim of Antiquera.

The trial court gave no weight to accused Antiquera’s claim of illegal arrest, given PO1 Recio and PO1 Cabutihan’s credible testimony that, prior to their arrest, they saw Antiquera and Cruz in a pot session at their living room and in possession of drug paraphernalia. The police officers were thus justified in arresting the two without a warrant pursuant to Section 5, Rule 113 of the Rules of Criminal Procedure.9

On appeal, the Court of Appeals (CA) rendered a Decision10 on September 21, 2007 affirming in full the decision of the trial court. The accused moved for reconsideration but the CA denied it.11 The accused is now before this Court seeking acquittal.

The Issue Presented

The issue in this case is whether or not the CA erred in finding accused Antiquera guilty beyond reasonable doubt of illegal possession of drug paraphernalia based on the evidence of the police officers that they saw him and Cruz in the act of possessing drug paraphernalia.

Ruling of the Court

The prosecution’s theory, upheld by both the RTC and the CA, is that it was a case of valid warrantless arrest in that the police officers saw accused Antiquera and Cruz through the door of their house, in the act of having a pot session. That valid warrantless arrest gave the officers the right as well to search the living room for objects relating to the crime and thus seize the paraphernalia they found there.

The prosecution contends that, since the seized paraphernalia tested positive for shabu, they were no doubt used for smoking, consuming, administering, injecting, ingesting, or introducing dangerous drug into the body in violation of Section 12 of Republic Act 9165. That the accused

tested negative for shabu, said the prosecution, had no bearing on the crime charged which was for illegal possession of drug paraphernalia, not for illegal use of dangerous drugs. The prosecution added that even assuming that the arrest of the accused was irregular, he is already considered to have waived his right to question the validity of his arrest when he voluntarily submitted himself to the court’s jurisdiction by entering a plea of not guilty.12

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that a "peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." This is an arrest in flagrante delicto.13 The overt act constituting the crime is done in the presence or within the view of the arresting officer.14

But the circumstances here do not make out a case of arrest made in flagrante delicto.

1. The police officers claim that they were alerted when they saw two unidentified men suddenly rush out of 107 David Street, Pasay City. Since they suspected that a crime had been committed, the natural thing for them to do was to give chase to the jeep that the two fleeing men boarded, given that the officers were in a patrol car and a tricycle. Running after the fleeing suspects was the more urgent task but the officers instead gave priority to the house even when they heard no cry for help from it.

2. Admittedly, the police officers did not notice anything amiss going on in the house from the street where they stood. Indeed, even as they peeked through its partially opened door, they saw no activity that warranted their entering it. Thus, PO1 Cabutihan testified:

THE COURT:

Q – By the way, Mr. Cabutihan, when you followed your companion towards the open door, how was the door open? Was it totally open, or was it partially open?

A – It was partially open Your Honor.

Q – By how much, 1/3, 1/2? Only by less than one (1) foot?

A – More or less 4 to 6 inches, Your Honor.

Q – So how were you able to know, to see the interior of the house if the door was only open by 6 inches? Or did you have to push the door?

A – We pushed the door, Your Honor.

x x x x

Q – Were you allowed to just go towards the door of the house, push its door and peeped inside it, as a police officer?

A – Kasi po naghinala po kami baka may…

Q – Are you not allowed to – Are you not required to get a search warrant before you can search the interior of the house?

A – Yes, Your Honor.

Q – What do you mean by yes? Would you first obtain a search warrant before searching the interior of the house?

A – Yes, Your Honor.

Q – So why did you not a [sic] secure a search warrant first before you tried to investigate the house, considering your admission that you suspected that there was something wrong inside the house?

A – Because we saw them that they were engaged in pot session, Your Honor.

Q – But before you saw them, you just had to push the door wide open to peep through its opening because you did not know what was happening inside?

A – Yes, Your Honor.15 (Emphasis supplied)

Clearly, no crime was plainly exposed to the view of the arresting officers that authorized the arrest of accused Antiquera without warrant under the above-mentioned rule. Considering that his arrest was illegal, the search and seizure that resulted from it was likewise illegal.16 Consequently, the various drug paraphernalia that the police officers allegedly found in the house and seized are inadmissible, having proceeded from an invalid search and seizure. Since the confiscated drug paraphernalia is the very corpus delicti of the crime charged, the Court has no choice but to acquit the accused.17

One final note. The failure of the accused to object to the irregularity of his arrest by itself is not enough to sustain his conviction. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.18

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated September 21, 2007 and Resolution dated November 16, 2007 of the Court of Appeals in CA-G.R. CR 28937 and ACQUITS the accused George Antiquera y Codes of the crime of which he is charged for lack of evidence sufficient to establish his guilt beyond reasonable doubt.1âwphi1 The Court

further ORDERS the cancellation and release of the bail bond he posted for his provisional liberty.

SO ORDERED.

ROBERTO A. ABADAssociate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.Associate Justice

Chairperson

DIOSDADO M. PERALTAAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

MARVIC MARIO VICTOR F. LEONENAssociate Justice


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

PRESBITERO J. VELASCO, JR.Associate JusticeChairperson, Third Division


Pursuant to 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.


epublic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 183805 July 3, 2013

JAMES WALTER P. CAPILI, PETITIONER, vs.PEOPLE OF THE PHILIPPINES AND SHIRLEY TISMO-CAPILI, RESPONDENTS.

D E C I S I O N

PERALTA, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision1 dated February 1, 2008 and Resolution2 dated July 24, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 30444.

The factual antecedents are as follows:

On June 28, 2004, petitioner was charged with the crime of bigamy before the Regional Trial Court (RTC) of Pasig City in an Information which reads:

On or about December 8, 1999, in Pasig City, and within the jurisdiction of this Honorable Court, the accused being previously united in lawful marriage with Karla Y. Medina-Capili and without said marriage having been legally dissolved or annulled, did then and there willfully, unlawfully and feloniously contract a second marriage with Shirley G. Tismo, to the damage and prejudice of the latter.

Contrary to law.3

Petitioner thereafter filed a Motion to Suspend Proceedings alleging that: (1) there is a pending civil case for declaration of nullity of the second marriage before the RTC of Antipolo City filed by Karla Y. Medina-Capili; (2) in the event that the marriage is declared null and void, it would exculpate him from the charge of bigamy; and (3) the pendency of the civil case for the declaration of nullity of the second marriage serves as a prejudicial question in the instant criminal case.

Consequently, the arraignment and pre-trial were reset by the RTC of Pasig City, in view of the filing of the Motion to Suspend Proceedings filed by petitioner.

In the interim, the RTC of Antipolo City rendered a decision declaring the voidness or incipient invalidity of the second marriage between petitioner and private respondent on the ground that a subsequent marriage contracted by the husband during the lifetime of the legal wife is void from the beginning.

Thereafter, the petitioner accused filed his Manifestation and Motion (to Dismiss) praying for the dismissal of the criminal case for bigamy filed against him on the ground that the second marriage between him and private respondent had already been declared void by the RTC.

In an Order4 dated July 7, 2006, the RTC of Pasig City granted petitioner’s Manifestation and Motion to Dismiss, to wit:

The motion is anchored on the allegation that this case should be dismissed as a decision dated December 1, 2004 had already been rendered by the Regional Trial Court of Antipolo City, Branch 72 in Civil Case No. 01-6043 (entitled: "Karla Medina-Capili versus James Walter P. Capili and Shirley G. Tismo," a case for declaration of nullity of marriage) nullifying the second marriage between James Walter P. Capili and Shirley G. Tismo and said decision is already final.

In the opposition filed by the private prosecutor to the motion, it was stated, among others, that the issues raised in the civil case are not similar or intimately related to the issue in this above-captioned case and that the resolution of the issues in said civil case would not determine whether or not the criminal action may proceed.

WHEREFORE, after a judicious evaluation of the issue and arguments of the parties, this Court is of the humble opinion that there is merit on the Motion to dismiss filed by the accused as it appears that the second marriage between James Walter P. Capili and Shirley G. Tismo had already been nullified by the Regional Trial Court, Branch 72 of Antipolo City which has declared "the voidness, non-existent or incipient invalidity" of the said second marriage. As such, this Court submits that there is no more bigamy to speak of.

SO ORDERED.

Aggrieved, private respondent filed an appeal before the CA.

Thus, in a Decision5 dated February 1, 2008, the CA reversed and set aside the RTC’s decision. The fallo reads:

http://www.lawphil.net/judjuris/juri2013/jul2013/gr_183805_2013.html#fnt5





WHEREFORE, premises considered, the Order dated 07 July 2006 of the Regional Trial Court of Pasig City, Branch 152 in Crim. Case No. 128370 is REVERSED and SET ASIDE. The case is remanded to the trial court for further proceedings. No costs.

SO ORDERED.6

Petitioner then filed a Motion for Reconsideration against said decision, but the same was denied in a Resolution[7] dated July 24, 2008.

Accordingly, petitioner filed the present petition for review on certiorari alleging that:

THERE IS NO LEGAL BASIS FOR THE COURT OF APPEALS TO DISREGARD EXISTING JURISPRUDENCE PRONOUNCED BY THIS HONORABLE SUPREME COURT AND TO REVERSE THE ORDER DATED JULY 7, 2006 OF THE TRIAL COURT (REGIONAL TRIAL COURT, PASIG CITY, BRANCH 152) ISSUED IN CRIMINAL CASE NO. 128370 GRANTING THE MOTION TO DISMISS THE CASE OF BIGAMY AGAINST PETITIONER, INASMUCH AS THE ISSUANCE OF THE SAID ORDER IS BASED ON THE FINDINGS AND/OR FACTS OF THE CASE IN THE DECISION OF THE REGIONAL TRIAL COURT OF ANTIPOLO CITY, BRANCH 72, IN CIVIL CASE NO. 01-6043 AND THE CONCLUDING AND DISPOSITIVE PORTION IN THE SAID DECISION WHICH STATES THAT, AFTER PERUSAL OF THE EVIDENCE ON RECORD AND THE TESTIMONIES OF WITNESSES X X X, THE MARRIAGE BETWEEN PETITIONER JAMES WALTER P. CAPILI AND PRIVATE RESPONDENT SHIRLEY G. TISMO, IS HEREBY NULL AND VOID.

THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN HOLDING THAT THE DECLARATION OF NULLITY OF MARRIAGE BETWEEN PETITIONER JAMES WALTER P. CAPILI AND SHIRLEY G. TISMO BY THE REGIONAL TRIAL COURT OF ANTIPOLO CITY, BRANCH 72 IN ITS DECISION IN CIVIL CASE NO. 01-6043, IS ON THE GROUND THAT IT IS BIGAMOUS IN NATURE, DESPITE THE ABSENCE OF ANY SUCH FINDINGS OR FACTS ON WHICH IT IS BASED IN VIOLATION OF ARTICLE VIII, SECTION 14 OF THE 1987 CONSTITUTION, AND IN CONCLUDING THAT THE SAID DECLARATION OF NULLITY OF MARRIAGE IS NOT A GROUND FOR DISMISSAL OF THE BIGAMY CASE AGAINST THE PETITIONER, WHICH RULING IS NOT IN ACCORDANCE WITH THE FACTS OF THE CASE OF THE SAID DECISION AND WHICH IS CONTRARY TO APPLICABLE LAWS AND ESTABLISHED JURISPRUDENCE.

THE CASE OF TENEBRO V. COURT OF APPEALS SPEAKS FOR ITSELF. IT IS AN EXCEPTION TO EXISTING JURISPRUDENCE INVOLVING DECLARATION OF NULLITY OF MARRIAGE AND IS APPLICABLE ONLY TO THE SET OF FACTS IN THE SAID CASE, AND THE GROUND FOR DECLARATION OF NULLITY OF MARRIAGE IS PSYCHOLOGICAL INCAPACITY, HENCE, THERE IS NO LEGAL BASIS FOR ABANDONING EXISTING JURISPRUDENCE AS WHERE IN THE INSTANT CASE THE GROUND FOR

DECLARATION OF NULLITY OF MARRIAGE IS VIOLATIVE OF ARTICLE 3 IN RELATION TO ARTICLE 4 OF THE FAMILY CODE.

THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE USE BY RESPONDENT SHIRLEY G. TISMO OF THE SURNAME "CAPILI" IS ILLEGAL INASMUCH AS THE DECISION OF THE REGIONAL TRIAL COURT OF ANTIPOLO CITY, BRANCH 72 IN CIVIL CASE NO. 01-6043 DECLARING NULL AND VOID THE MARRIAGE BETWEEN JAMES WALTER P. CAPILI AND SHIRLEY G. TISMO HAD LONG BECOME FINAL AND UNAPPEALABLE AS OF THE DATE OF THE SAID DECISION ON DECEMBER 1, 2004 AND DULY RECORDED IN THE RECORDS OF ENTRIES IN THE CORRESPONDING BOOK IN THE OFFICE OF THE CIVIL REGISTRAR OF PASIG CITY AND THE NATIONAL STATISTICS OFFICE.8

In essence, the issue is whether or not the subsequent declaration of nullity of the second marriage is a ground for dismissal of the criminal case for bigamy.

We rule in the negative.

Article 349 of the Revised Penal Code defines and penalizes the crime of bigamy as follows:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The elements of the crime of bigamy, therefore, are: (1) the offender has been legally married; (2) the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or subsequent marriage has all the essential requisites for validity.9

In the present case, it appears that all the elements of the crime of bigamy were present when the Information was filed on June 28, 2004.

It is undisputed that a second marriage between petitioner and private respondent was contracted on December 8, 1999 during the subsistence of a valid first marriage between petitioner and Karla Y. Medina-Capili contracted on September 3, 1999. Notably, the RTC of Antipolo City itself declared the bigamous nature of the second marriage between petitioner and private respondent. Thus, the subsequent judicial declaration of the second marriage for being bigamous in nature does not bar the prosecution of petitioner for the crime of bigamy.





Jurisprudence is replete with cases holding that the accused may still be charged with the crime of bigamy, even if there is a subsequent declaration of the nullity of the second marriage, so long as the first marriage was still subsisting when the second marriage was celebrated.

In Jarillo v. People,10 the Court affirmed the accused’s conviction for bigamy ruling that the crime of bigamy is consummated on the celebration of the subsequent marriage without the previous one having been judicially declared null and void, viz.:

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to [private complainant] had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.11

In like manner, the Court recently upheld the ruling in the aforementioned case and ruled that what makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid first marriage. It further held that the parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of the first marriage assumes the risk of being prosecuted for bigamy.12

Finally, it is a settled rule that the criminal culpability attaches to the offender upon the commission of the offense, and from that instant, liability appends to him until extinguished as provided by law.13 It is clear then that the crime of bigamy was committed by petitioner from the time he contracted the second marriage with private respondent. Thus, the finality of the judicial declaration of nullity of petitioner’s second marriage does not impede the filing of a criminal charge for bigamy against him.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated February 1, 2008 and Resolution dated July 24, 2008 of the Court of Appeals in CA-G.R. CR No. 30444 are hereby AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Abad, Mendoza, and Leonen, JJ., concur.

July 16, 2013

N O T I C E OF J U D G M E N T

Sirs/Mesdames:

Please take notice that on ___July 3, 2013___ a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 16, 2013 at 2:30 a.m.

Very truly yours,

(SGD)LUCITA ABJELINA SORIANODivision Clerk of Court

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 181658 August 7, 2013

LEE PUE LIONG A.K.A. PAUL LEE, PETITIONER, vs.CHUA PUE CHIN LEE, RESPONDENT.

D E C I S I O N

VILLARAMA, JR., J.:

Before this Court is a petition1 for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking the reversal of the May 31, 2007 Decision2 and the January 31, 2008 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 81510. The CA affirmed the Orders4 dated August 15, 2003 and November 5, 2003 of the Metropolitan Trial Court (MeTC) of Manila denying (a) the Omnibus Motion5 for the exclusion of a private prosecutor in the two





criminal cases for perjury pending before the MeTC, and (b) the Motion for Reconsideration6 of the said order denying the Omnibus Motion, respectively.

The facts follow:

Petitioner Lee Pue Liong, a.k.a. Paul Lee, is the President of Centillion Holdings, Inc. (CHI), a company affiliated with the CKC Group of Companies (CKC Group) which includes the pioneer company Clothman Knitting Corporation (CKC). The CKC Group is the subject of intra-corporate disputes between petitioner and his siblings, including herein respondent Chua Pue Chin Lee, a majority stockholder and Treasurer of CHI.

On July 19, 1999, petitioner’s siblings including respondent and some unidentified persons took over and barricaded themselves inside the premises of a factory owned by CKC. Petitioner and other factory employees were unable to enter the factory premises. This incident led to the filing of Criminal Case Nos. 971-V-99, 55503 to 55505 against Nixon Lee and 972-V-99 against Nixon Lee, Andy Lee, Chua Kipsi a.k.a. Jensen Chua and respondent, which are now pending in different courts in Valenzuela City.7

On June 14, 1999, petitioner on behalf of CHI (as per the Secretary’s Certificate8 issued by Virginia Lee on even date) caused the filing of a verified Petition9 for the Issuance of an Owner’s Duplicate Copy of Transfer Certificate of Title (TCT) No. 23223810 which covers a property owned by CHI. The case was docketed as LRC Record No. 4004 of the Regional Trial Court (RTC) of Manila, Branch 4. Petitioner submitted before the said court an Affidavit of Loss11 stating that: (1) by virtue of his position as President of CHI, he had in his custody and possession the owner’s duplicate copy of TCT No. 232238 issued by the Register of Deeds for Manila; (2) that said owner’s copy of TCT No. 232238 was inadvertently lost or misplaced from his files and he discovered such loss in May 1999; (3) he exerted diligent efforts in locating the said title but it had not been found and is already beyond recovery; and (4) said title had not been the subject of mortgage or used as collateral for the payment of any obligation with any person, credit or banking institution. Petitioner likewise testified in support of the foregoing averments during an ex-parte proceeding. In its Order12 dated September 17, 1999, the RTC granted the petition and directed the Register of Deeds of Manila to issue a new Owner’s Duplicate Copy of TCT No. 232238 in lieu of the lost one.

Respondent, joined by her brother Nixon Lee, filed an Omnibus Motion praying, among others, that the September 17, 1999 Order be set aside claiming that petitioner knew fully well that respondent was in possession of the said Owner’s Duplicate Copy, the latter being the Corporate Treasurer and custodian of vital documents of CHI. Respondent added that petitioner merely needs to have another copy of the title because he planned to mortgage the same with the Planters Development Bank. Respondent even produced the Owner’s Duplicate Copy of TCT No. 232238 in open court. Thus, on November 12, 1999, the RTC recalled and set aside its September 17, 1999 Order.13

In a Complaint-Affidavit14 dated May 9, 2000 filed before the City Prosecutor of Manila, respondent alleged the following:

1. I am a stockholder, Board Member, and duly elected treasurer of Centillion Holdings, Inc. (CHI), which corporation is duly organized and existing under Philippine laws.

2. As duly elected treasurer of CHI, I was tasked with the custody and safekeeping of all vital financial documents including bank accounts, securities, and land titles.

3. Among the land titles in my custody was the Owner’s Duplicate copy of Transfer Certificate of Title No. 232238 registered in the name of CHI.

4. On June 14, 1999, Lee Pue Liong, a.k.a. Paul Lee, filed a VERIFIED PETITION for the issuance of a new owner’s duplicate copy of the aforementioned certificate claiming under oath that said duplicate copy was in his custody but was lost.

x x x x

5. Paul Lee likewise executed an affidavit of loss stating the same fact of loss, which affidavit he used and presented as exhibit "D".

x x x x

6. On August 18, 1999, Paul Lee testified under oath that TCT No. 232238 was inadvertently lost and misplaced from his files.

x x x x

7. Paul Lee made a willful and deliberate assertion of falsehood in his verified petition, affidavit and testimony, as he perfectly knew that I was in possession of the owner’s duplicate copy of TCT No. 232238.

8. I and my brother Nixon Lee opposed the petition of Paul Lee and even produced in open court the owner’s duplicate copy of TCT No. 232238.

Such fact was contained in the Order of Branch 4, RTC, Manila, dated November 12, 1999, x x x.

9. I and Paul Lee are involved in an intra-corporate dispute, which dispute is now pending with the SEC.

10. Paul Lee needed to have a new owner’s duplicate of the aforementioned TCT so that he could mortgage the property covered thereby with the Planters Development Bank, even without my knowledge and consent as well as the consent and knowledge of my brother Nixon Lee who is likewise a shareholder, board member and officer of CHI.

11. If not for the timely discovery of the petition of Paul Lee, with his perjurious misrepresentation, a new owner’s duplicate could have been issued.

x x x x15 (Italics supplied.)

On June 7, 2000, respondent executed a Supplemental Affidavit16 to clarify that she was accusing petitioner of perjury allegedly committed on the following occasions: (1) by declaring in the VERIFICATION the veracity of the contents in his petition filed with the RTC of Manila concerning his claim that TCT No. 232238 was in his possession but was lost; (2) by declaring under oath in his affidavit of loss that said TCT was lost; and (3) by testifying under oath that the said TCT was inadvertently lost from his files.

The Investigating Prosecutor recommended the dismissal of the case. However, in the Review Resolution17 dated December 1, 2000 issued by First Assistant City Prosecutor Eufrosino A. Sulla, the recommendation to dismiss the case was set aside. Thereafter, said City Prosecutor filed the Informations18 docketed as Criminal Case Nos. 352270-71 CR for perjury, punishable under Article 18319 of the Revised Penal Code, as amended, against petitioner before the MeTC of Manila, Branch 28.

At the trial, Atty. Augusto M. Macam appeared as counsel for respondent and as private prosecutor with the consent and under the control and supervision of the public prosecutor. After the prosecution’s presentation of its first witness in the person of Atty. Ronaldo Viesca, Jr.,20 a lawyer from the Land Registration Authority, petitioner’s counsel moved in open court that respondent and her lawyer in this case should be excluded from participating in the case since perjury is a public offense. Said motion was vehemently opposed by Atty. Macam.21 In its Order22 dated May 7, 2003, the MeTC gave both the defense and the prosecution the opportunity to submit their motion and comment respectively as regards the issue raised by petitioner’s counsel.

Complying with the MeTC’s directive, petitioner filed the aforementioned Omnibus Motion23 asserting that in the crime of perjury punishable under Article 183 of the Revised Penal Code, as amended, there is no mention of any private offended party. As such, a private prosecutor cannot intervene for the prosecution in this case. Petitioner argued that perjury is a crime against public interest as provided under Section 2, Chapter 2, Title IV, Book 2 of the Revised Penal Code, as amended, where the offended party is the State alone. Petitioner posited that there being no allegation of damage to private interests, a private prosecutor is

not needed. On the other hand, the Prosecution filed its Opposition24 to petitioner’s Omnibus Motion.

The MeTC denied the Omnibus Motion in the Order25 dated August 15, 2003, as follows:

[W]hile criminal actions, as a rule, are prosecuted under the direction and control of the public prosecutor, however, an offended party may intervene in the proceeding, personally or by attorney, especially in cases of offenses which cannot be prosecuted except at the instance of the offended party. The only exception to this rule is when the offended party waives his right to [file the] civil action or expressly reserves his right to institute it after the termination of the case, in which case he loses his right to intervene upon the theory that he is deemed to have lost his interest in its prosecution. And, in any event, whenever an offended party intervenes in the prosecution of a criminal action, his intervention must always be subject to the direction and control of the public prosecutor. (Lim Tek Goan vs. Yatco, 94 Phil. 197).

Apparently, the law makes no distinction between cases that are public in nature and those that can only be prosecuted at the instance of the offended party. In either case, the law gives to the offended party the right to intervene, personally or by counsel, and he is deprived of such right only when he waives the civil action or reserves his right to institute one. Such is not the situation in this case. The case at bar involves a public crime and the private prosecution has asserted its right to intervene in the proceedings, subject to the direction and control of the public prosecutor.26

The MeTC also denied petitioner’s motion for reconsideration.27

Petitioner sought relief from the CA via a petition28 for certiorari with a prayer for the issuance of a writ of preliminary injunction and temporary restraining order. Petitioner prayed, among others, for the CA to enjoin the MeTC and respondent from enforcing the MeTC Orders dated August 15, 2003 and November 5, 2003, and likewise to enjoin the MeTC and respondent from further allowing the private prosecutor to participate in the proceedings below while the instant case is pending.

By Decision29 dated May 31, 2007, the CA ruled in favor of respondent, holding that the presence of the private prosecutor who was under the control and supervision of the public prosecutor during the criminal proceedings of the two perjury cases is not proscribed by the rules. The CA ratiocinated that respondent is no stranger to the perjury cases as she is the private complainant therein, hence, an aggrieved party.30 Reiterating the MeTC’s invocation of our ruling in Lim Tek Goan v. Yatco31 as cited by former Supreme Court Associate Justice Florenz D. Regalado in his Remedial Law Compendium,32 the CA ruled that "the offended party, who has neither reserved, waived, nor instituted the civil action may intervene, and such right to intervene exists even when no civil liability is involved."33

Without passing upon the merits of the perjury cases, the CA declared that respondent’s property rights and interests as the treasurer and a stockholder of CHI were disturbed and/or threatened by the alleged acts of petitioner. Further, the CA opined that petitioner’s right to a fair trial is not violated because the presence of the private prosecutor in these cases does not exclude the presence of the public prosecutor who remains to have the prosecuting authority, subjecting the private prosecutor to his control and supervision.

Petitioner filed a Motion for Reconsideration34 but the CA denied it under Resolution35 dated January 31, 2008.

Hence, this petition raising the following issues:

I

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT UPHELD THE RESOLUTION OF THE METROPOLITAN TRIAL COURT THAT THERE IS A PRIVATE OFFENDED PARTY IN THE CRIME OF PERJURY, A CRIME AGAINST PUBLIC INTEREST; AND

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT UPHELD THE RESOLUTIONS OF THE LOWER COURT WHICH IN TURN UPHELD THE RIGHT OF RESPONDENT, AN ALLEGED STOCKHOLDER OF CHI, TO INTERVENE IN THE CRIMINAL CASE FOR PERJURY AS PRIVATE COMPLAINANT ON BEHALF OF THE CORPORATION WITHOUT ITS AUTHORITY.36

Petitioner claims that the crime of perjury, a crime against public interest, does not offend any private party but is a crime which only offends the public interest in the fair and orderly administration of laws. He opines that perjury is a felony where no civil liability arises on the part of the offender because there are no damages to be compensated and that there is no private person injured by the crime.

Petitioner argues that the CA’s invocation of our pronouncement in Lim Tek Goan, cited by Justice Regalado in his book, is inaccurate since the private offended party must have a civil interest in the criminal case in order to intervene through a private prosecutor. Dissecting Lim Tek Goan, petitioner points out that said case involved the crime of grave threats where Lim Tek Goan himself was one of the offended parties. Thus, even if the crime of grave threats did not have any civil liability to be satisfied, petitioner claims that Lim Tek Goan, as a matter of right, may still intervene because he was one of the offended parties.

Petitioner submits that the MeTC erred in allowing the private prosecutor to represent respondent in this case despite the fact that the latter was not the offended party and did not

suffer any damage as she herself did not allege nor claim in her Complaint-Affidavit and Supplemental Affidavit that she or CHI suffered any damage that may be satisfied through restitution,37 reparation for the damage caused38 and indemnification for consequential damages.39 Lastly, petitioner asserts that respondent is not the proper offended party that may intervene in this case as she was not authorized by CHI. Thus, he prayed, among others, that Atty. Macam or any private prosecutor for that matter be excluded from the prosecution of the criminal cases, and that all proceedings undertaken wherein Atty. Macam intervened be set aside and that the same be taken anew by the public prosecutor alone.40

On the other hand, respondent counters that the presence and intervention of the private prosecutor in the perjury cases are not prohibited by the rules, stressing that she is, in fact, an aggrieved party, being a stockholder, an officer and the treasurer of CHI and the private complainant. Thus, she submits that pursuant to our ruling in Lim Tek Goan she has the right to intervene even if no civil liability exists in this case.41

The petition has no merit.

Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "[e]very person criminally liable x x x is also civilly liable."42 Underlying this legal principle is the traditional theory that when a person commits a crime, he offends two entities, namely (1) the society in which he lives in or the political entity, called the State, whose law he has violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission.43

Section 1, Rule 111 of the Revised Rules of Criminal Procedure, as amended, provides:

SECTION 1. Institution of criminal and civil actions.—(a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

x x x x (Emphasis supplied)

For the recovery of civil liability in the criminal action, the appearance of a private prosecutor is allowed under Section 16 of Rule 110:

SEC. 16. Intervention of the offended party in criminal action.—Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. (Emphasis supplied.)

Section 12, Rule 110 of the Revised Rules of Criminal Procedure, as amended, defines an offended party as "the person against whom or against whose property the offense was

committed." In Garcia v. Court of Appeals,44 this Court rejected petitioner’s theory that it is only the State which is the offended party in public offenses like bigamy. We explained that from the language of Section 12, Rule 10 of the Rules of Court, it is reasonable to assume that the offended party in the commission of a crime, public or private, is the party to whom the offender is civilly liable, and therefore the private individual to whom the offender is civilly liable is the offended party.

In Ramiscal, Jr. v. Hon. Sandiganbayan,45 we also held that Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the offended party may also be a private individual whose person, right, house, liberty or property was actually or directly injured by the same punishable act or omission of the accused, or that corporate entity which is damaged or injured by the delictual acts complained of. Such party must be one who has a legal right; a substantial interest in the subject matter of the action as will entitle him to recourse under the substantive law, to recourse if the evidence is sufficient or that he has the legal right to the demand and the accused will be protected by the satisfaction of his civil liabilities. Such interest must not be a mere expectancy, subordinate or inconsequential. The interest of the party must be personal; and not one based on a desire to vindicate the constitutional right of some third and unrelated party.46 (Emphasis supplied.)

In this case, the statement of petitioner regarding his custody of TCT No. 232238 covering CHI’s property and its loss through inadvertence, if found to be perjured is, without doubt, injurious to respondent’s personal credibility and reputation insofar as her faithful performance of the duties and responsibilities of a Board Member and Treasurer of CHI. The potential injury to the corporation itself is likewise undeniable as the court-ordered issuance of a new owner’s duplicate of TCT No. 232238 was only averted by respondent’s timely discovery of the case filed by petitioner in the RTC.

Even assuming that no civil liability was alleged or proved in the perjury case being tried in the MeTC, this Court declared in the early case of Lim Tek Goan v. Yatco,47 cited by both MeTC and CA, that whether public or private crimes are involved, it is erroneous for the trial court to consider the intervention of the offended party by counsel as merely a matter of tolerance. Thus, where the private prosecution has asserted its right to intervene in the proceedings, that right must be respected. The right reserved by the Rules to the offended party is that of intervening for the sole purpose of enforcing the civil liability born of the criminal act and not of demanding punishment of the accused. Such intervention, moreover, is always subject to the direction and control of the public prosecutor.48

In Chua v. Court of Appeals,49 as a result of the complaint-affidavit filed by private respondent who is also the corporation’s Treasurer, four counts of falsification of public documents (Minutes of Annual Stockholder’s Meeting) was instituted by the City Prosecutor against petitioner and his wife. After private respondent’s testimony was heard during the trial, petitioner moved to exclude her counsels as private prosecutors on the ground that she failed to allege and prove any civil liability in the case. The MeTC granted the motion and ordered the exclusion of said private prosecutors. On certiorari to the RTC, said court reversed the MeTC

and ordered the latter to allow the private prosecutors in the prosecution of the civil aspect of the criminal case. Petitioner filed a petition for certiorari in the CA which dismissed his petition and affirmed the assailed RTC ruling.

When the case was elevated to this Court, we sustained the CA in allowing the private prosecutors to actively participate in the trial of the criminal case. Thus:

Petitioner cites the case of Tan, Jr. v. Gallardo, holding that where from the nature of the offense or where the law defining and punishing the offense charged does not provide for an indemnity, the offended party may not intervene in the prosecution of the offense.

Petitioner’s contention lacks merit. Generally, the basis of civil liability arising from crime is the fundamental postulate that every man criminally liable is also civilly liable. When a person commits a crime he offends two entities namely (1) the society in which he lives in or the political entity called the State whose law he has violated; and (2) the individual member of the society whose person, right, honor, chastity or property has been actually or directly injured or damaged by the same punishable act or omission. An act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Additionally, what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, whether done intentionally or negligently. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of the crime. The civil action involves the civil liability arising from the offense charged which includes restitution, reparation of the damage caused, and indemnification for consequential damages.

Under the Rules, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. Rule 111(a) of the Rules of Criminal Procedure provides that, "[w]hen a criminal action is instituted, the civil action arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately, or institutes the civil action prior to the criminal action."

Private respondent did not waive the civil action, nor did she reserve the right to institute it separately, nor institute the civil action for damages arising from the offense charged. Thus, we find that the private prosecutors can intervene in the trial of the criminal action.

Petitioner avers, however, that respondent’s testimony in the inferior court did not establish nor prove any damages personally sustained by her as a result of petitioner’s alleged acts of falsification. Petitioner adds that since no personal damages were proven therein, then the participation of her counsel as private prosecutors, who were supposed to pursue the civil aspect of a criminal case, is not necessary and is without basis.

When the civil action is instituted with the criminal action, evidence should be taken of the damages claimed and the court should determine who are the persons entitled to such indemnity. The civil liability arising from the crime may be determined in the criminal proceedings if the offended party does not waive to have it adjudged or does not reserve the right to institute a separate civil action against the defendant. Accordingly, if there is no waiver or reservation of civil liability, evidence should be allowed to establish the extent of injuries suffered.

In the case before us, there was neither a waiver nor a reservation made; nor did the offended party institute a separate civil action. It follows that evidence should be allowed in the criminal proceedings to establish the civil liability arising from the offense committed, and the private offended party has the right to intervene through the private prosecutors.50 (Emphasis supplied; citations omitted.)

In the light of the foregoing, we hold that the CA did not err in holding that the MeTC committed no grave abuse of discretion when it denied petitioner’s motion to exclude Atty. Macam as private prosecutor in Crim. Case Nos. 352270-71 CR.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated May 31, 2007 and the Resolution dated January 31, 2008 of the Court of Appeals in CA-G.R. SP No. 81510 are hereby AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENOChief JusticeChairperson

ARTURO D. BRION*

Associate JusticeLUCAS P. BERSAMIN

Associate Justice

BIENVENIDO L. REYESAssociate Justice


Pursuant to Section 13, Article VIII of the 1987 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. SERENOChief Justice


EN BANC

G.R. No. 135053 March 6, 2002

PEOPLE OF THE PHILIPPINES, appellee, vs.BENJAMIN GALVEZ, appellant.

PANGANIBAN, J.:

The mandatory procedure laid down by jurisprudence and the Rules of Court should be meticulously observed by trial courts in accepting a plea of guilt in a case involving a capital offense. There should be no doubt that the accused might have misunderstood the nature of the charges and the consequences thereof. Otherwise, the plea would be set aside for having been improvidently made.

The Case

For automatic review is the July 30, 1998 Decision1 of the Regional Trial Court (RTC) of Bayombong, Nueva Vizcaya (Branch 27) in Criminal Case No. 3299, convicting Benjamin Galvez of qualified rape and sentencing him to death. The assailed Decision disposed as follows:

"WHEREFORE, finding the accused Benjamin Galvez y Domingo GUILTY beyond reasonable doubt of committing rape against his own daughter, 16 years old at the time of the rape, he is hereby sentenced to die by lethal injection; to pay the victim the sum of P50,000.00 as civil indemnity and to pay the costs of the suit."2

The Facts

In its Brief,3 the Office of the Solicitor General presents the following narration of facts:

"Cristina Galvez was born on May 10, 1981. She, her father, Benjamin Galvez, the appellant herein, together with her five (5) siblings, resided at Tuao South, Bagabag, Nueva Vizcaya.

"Sometime in the third week of April 1997, about 6:00 o'clock in the evening, Cristina, who was then sixteen (16) years old, and her youngest sister, Melowin, were sleeping beside each other on the bed. Their bed was beside an aparador and Cristina slept on the side nearest to the aparador. Appellant's bed was beside the door and was just near the bed where Cristina and Melowin were sleeping. Three (3) of their brothers were also asleep in the house, namely, Melchor, 13 years old, Alvin, 12 years old, and Jesus, 9 years old, while their 19 year-old brother was at a neighbor's house watching television. Their mother, Marilyn Galvez, was not with them as she was in Hongkong at that time.

"That night, appellant, who was drunk, arrived and then ate. After eating, he went to lie down on his bed. After a lapse of thirty (30) minutes, appellant went to lie down on the bed where Cristina and Melowin were sleeping. He positioned himself on the right side of Cristina, slowly lifting and moving Melowin, who was asleep beside Cristina, away from her sister's side. Then, he slowly removed Cristina's shorts and shirt and began touching her on all parts of her body. He positioned himself on top of her but she kicked him, causing him to be thrown against the aparador. Apparently hurt and angered, he pulled his samurai from under his mat and pointed it towards the left front portion between her breast and her armpit. Scared, she was immobilized. She knew of her father's capacity to kill her because she had previously witnessed how he almost killed their mother when the latter was still with them before she left for Hongkong. Appellant completely undressed himself, started to kiss her, and forcibly inserted his sexual organ into hers and did a pumping motion. Before leaving her to sleep on his bed, he threatened to kill her if she would report what he did to her, warning that he would also include the one whom she would report to. She felt pain on her body, including her private parts. She also saw a small quantity of blood coming from her vagina.1âwphi1.nêt

"On April 28, 1997, appellant repeated the dastardly act on his daughter, Cristina. This time, he already held the samurai, pointing it towards her neck when he went near her. Afraid, she had to allow appellant to undress her without a struggle and he successfully had sexual intercourse with her. He thereafter regularly raped her about 3 to 4 times a week, usually after a one (1) day interval. This went on until Cristina became pregnant and gave birth to a baby boy on January 23, 1998. The baby boy was named Christian."4(Citations omitted)

In an Information dated February 20, 1998, appellant was charged with multiple rape, defined and penalized under Republic Act No. 8353. He allegedly committed the crime as follows:

"That sometime in the third week of April, 1997, in the evening and several times thereafter, in Barangay Tuao South, Municipality of Bagabag, Province of Nueva Vizcaya, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, with the use of force, threat and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of his daughter Cristina Galvez y Tomboc, 16 years old at the time, against the latter's will and without her consent, to her damage and prejudice including her parents."5

During the arraignment, read and explained to appellant in Ilocano -- a dialect he spoke and understood -- were the charges for ten counts of rape. Assisted by Atty. Renato Mercado, he pleaded not guilty to the charges.6However, on May 14, 1998, appellant, this time with the assistance of Atty. Ruby Rosa Espino,7 changed his plea to that of guilt. In accordance with the RTC's Order dated May 14, 1998, an inquiry into the voluntariness and full comprehension of his plea was conducted. After hearing evidence for the prosecution, the lower court rendered the assailed Decision.

Appellant did not present any evidence on his behalf. Neither did his counsel present in his Brief any counter-statement of the facts.8

Ruling of the Trial Court

The automatically appealed Decision states that the trial was conducted pursuant to People v. Alicando,9 which held that "a conviction in capital offenses cannot rest alone on a plea of guilt -- after a free and intelligent plea of guilt, the trial court must require the prosecution to prove the guilt of the appellant and the precise degree of his culpability beyond reasonable doubt."10 As appellant absolutely refused to offer any evidence in his own favor, the trial court decided the case solely on the basis of the evidence presented by the prosecution.

According full faith and credence to the testimony of the victim, the RTC found that she had been raped by her father. It based its conclusion on the following: (1) she cried several times during her testimony; (2) no daughter, especially one as young as she was, would have charged her own father with so serious an offense that prescribed the death penalty, if she had not indeed been raped; (3) appellant was accorded the chance to refute the claim of his daughter, yet he did not; besides, a young girl like her would not have submitted to the advances of her own father, unless these were made through force and intimidation; and (4) appellant entered a plea of guilt.11

However, the RTC convicted him of only one count of rape perpetrated in the third week of April, 1997, because the Information had alleged only one incident of the crime. The allegation that the victim was raped several times after the third week of April 1997 was deemed "too indefinite to give the accused the opportunity to prepare his defense."

Hence, this automatic appeal.12

The Issue

Appellant prays for the remand of the case to the court of origin for proper arraignment and trial based on this sole assignment of error:

"The court a quo gravely erred in not applying the safeguards set forth under Rule 116, 1985 Rules on Criminal Procedure."13

This Court's Ruling

We agree with appellant -- his plea of guilt was improvident.

Main Issue:

Proper Procedure When the Accused Pleads Guilty in a Case Involving a Capital Offense

Citing People v. Bello,14 appellant argues that the trial court failed to observe the mandatory procedure for accepting a positive plea to a charge punishable by death.

The stringent procedure governing the reception of a plea of guilt, especially in a case involving the death penalty, is imposed upon the trial judge in order to leave no room for doubt on the possibility that the accused might have misunderstood the nature of the charge and the consequences of the plea.15

In People v. Aranzado,16 the Court, citing Section 3, Rule 11617 of the Rules of Court, set the following guidelines for receiving a plea of guilt in a case involving a capital offense:

"(1) The court must conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the plea;

(2) The court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and

(3) The court must ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires."18

Moreover, as prescribed in Aranzado, the searching inquiry to be conducted by the trial court should consist of the following:

"(1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and

interrogated during the investigations. These the court shall do in order to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters.

(2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty.

(3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty.

(4) Inform the accused [of] the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. Not infrequently indeed an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions.

(5) Require the accused to fully narrate the incident that spawned the charges against him or make him reenact the manner in which he perpetrated the crime, or cause him to supply missing details of significance."19

Appellant's re-arraignment on May 14, 1999 miserably fell short of these guidelines, as shown by the pertinent portion of the transcript of stenographic notes, which we quote hereunder:

"PROS. CASTILLO:

By way of dialogue with the defense counsel the accused is willing to enter a plea of guilty for the ten (10) counts of rape, your Honor.

COURT:

Why don't you arraign him? Alright, the previous plea of not guilty is now withdrawn to give way to the plea of guilty by the accused for 10 counts of rape but as the Court had already observed we have to conduct the re-arraignment of this case. Will you please arraign him.

(The accused was arraigned by reading to him the Information in Ilocano dialect which the accused speaks and understands.)

INTERPRETER:

The accused pleaded guilty.

COURT:

I would like to ask the accused if he understands from his counsel, the circumstances in this case because the victim here is his own daughter and she is below 18 years of age. In accordance with the heinous offense law, the Court will have to impose on him the penalty of death. Is this clear to the accused? At any rate we will conduct a trial to find out if there is sufficient evidence to convict you so that your rights will be protected you are given a chance to prove your innocence latter to refute the evidence of guilt beyond reasonable doubt."20

It is clear from the foregoing that the trial judge did not conduct a "searching inquiry" into the voluntariness of appellant's plea of guilt and full comprehension thereof. He asked no questions on the subjects mentioned inAranzado. His purported compliance with Alicando was more like a monologue, or a warning at best, rather than a searching inquiry. He did not inquire into appellant's personality profile -- age, socio-economic status or educational background.21 His Honor did not even require an answer to his question on whether appellant realized that the death penalty would result from the latter's plea. No response from appellant was given or recorded.

Moreover, there is no showing that the lawyer explained to appellant the consequences of the latter's plea -- probable conviction and death sentence. Equally important, the trial judge should have asked why the plea of appellant was changed. The former obtained none of the information required in Aranzado. Hence, there is no basis to conclude that the latter voluntarily and intelligently pleaded guilty to the charges against him.

In Bello, the Court remarked that there were cases when the accused would plead guilty in the hope of a lenient treatment or because of promises from the authorities or parties that an expression of remorse would result in a lighter penalty.22

Where the punishment to be inflicted is death, it is not enough that the information be read to the accused or even translated into the dialect they speak. This is because the implementation of such penalty is irrevocable, and experience has shown that innocent persons have at times pleaded guilty.23 The trial court must avoid improvident pleas of guilt, since the accused might be admitting their guilt and thus forfeiting their lives and liberties without having fully understood the meaning, significance or consequences of their pleas.24

What is apparent here is that appellant was not properly advised by his counsel. In People v. Sevilleno,25 the Court remanded the case for re-arraignment of the accused who had been charged with the rape and murder of a nine-year-old girl, because his counsel had declined to present evidence for his client, banking on the mitigating circumstance of the plea of guilt. This

Court clarified that under no circumstance would an admission of guilt in that case affect or reduce the death sentence because it was a single indivisible penalty which is applied regardless of any mitigating or aggravating circumstance attending the crime.1âwphi1.nêt

In the instant case, the Court also notes that "guilty" was not the original plea of appellant; hence, careful effort should have been exerted by the court below to inquire into why he changed his plea. In addition, he refused to present evidence in his defense. This should have again prompted the trial judge to probe more deeply, following the guidelines in Aranzado.

A plea of guilt is improvidently accepted where no effort is made to explain to the accused that, in a case involving a capital offense, such plea may result in the imposition of the death penalty.26 The same is true when the requirements in Aranzado are not satisfied.27 Recently, in People v. Bernas,28 the Court set aside a death sentence and remanded the case to the trial court, because the Aranzado guidelines on how to conduct a "searching inquiry" had not been followed.

WHEREFORE, the automatically appealed Decision is SET ASIDE. Criminal Case No. 3299 is REMANDED to the court of origin for re-arraignment and further proceedings to be conducted with all deliberate speed, in accordance with this Decision. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Buena, Ynares-Santiago, De Leon Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.


THIRD DIVISION

G.R. No. 159450 March 30, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.OLIVIA ALETH GARCIA CRISTOBAL, Accused-Appellant.

D E C I S I O N

BERSAMIN, J.:

Although a waiver of the right to present evidence by the accused is not a trivial matter to be lightly regarded by the trial court, the filing of the demurrer to evidence without express leave of court operates as a waiver that binds the accused pursuant to the express provision of the Rules of Court.

Under challenge in this appeal is the decision promulgated on July 31, 2003 in C.A.-G.R. CR No. 24556, whereby the Court of Appeals (CA) affirmed the conviction for qualified theft of the accused, a teller of complainant Prudential Bank, and punished her with reclusion perpetua,1 thereby modifying the decision dated May 26, 2000 rendered by the Regional Trial Court, Branch 57, in Angeles City (RTC),2 imposing an indeterminate sentence from ten (10) years and one (1) day of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum.

Antecedents

The information charged the accused with qualified theft, alleging:

That on or about the 2nd of January, 1996, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, OLIVIA ALETH GARCIA CRISTOBAL, being then the teller of Prudential Bank, Angeles Main Branch, Sto. Rosario Street, Angeles City, and as such is entrusted with cash and other accountabilities, with grave abuse of trust and confidence reposed upon her by her employer, with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away cash money amounting to $10,000.00, belonging to the Prudential Bank, Angeles Main Branch, represented by its Branch Manager, EDGARDO PANLILIO, to the damage and prejudice of Prudential Bank, Angeles Main Branch, in the aforementioned amount of TEN THOUSAND DOLLARS ($10,000.00) or its equivalent of TWO HUNDRED SIXTY THOUSAND PESOS (P260,000.00), Philippine Currency and parity rate.

ALL CONTRARY TO LAW.3

After the accused pleaded not guilty at arraignment, the State presented four witnesses, namely: Prudential Bank Branch Manager Edgardo Panlilio, Sr., Bank Auditor Virgilio Frias, Bank Cashier Noel Cunanan, and account holder Apolinario Tayag.

The summary of the evidence of the State rendered in the assailed decision of the CA follows:4

x x x

Among the six tellers in the Angeles City main branch of Prudential Bank, accused-appellant (hereafter "appellant") was the only teller assigned to handle dollar deposits and withdrawals.

On January 2, 1996, an internal spot-audit team headed by Prudential Bank’s senior audit examiner Virgilio Frias ("Frias"), inventoried the cash accountabilities of the said branch by manually counting the money in each of the tellers’ cash boxes. While the books of the branch showed that appellant had a cash accountability of $15,040.52, the money in her cash box was only $5,040.52.

Asked about the shortage of $10,000.00, appellant explained that there was a withdrawal of $10,000.00 on December 29, 1995 after the cut-off time which would be treated as a withdrawal on January 2, 1996. Appellant then presented to Frias a withdrawal memo dated January 2, 1996 showing a withdrawal of $10,000.00 from Dollar Savings Account No. FX-836 ("FX-836") of Adoracion Tayag and her co-signatory, Apolinario Tayag.

On January 3, 1996, appellant showed the aforesaid withdrawal memo to the branch cashier, Noel Cunanan ("Cunanan"). Noticing that the said withdrawal memo did not contain the required signatures of two bank officers, Cunanan asked appellant what the nature of the transaction was. Appellant replied that the depositor, Apolinario Tayag, had instructed her to withdraw $10,000.00 from his account on January 3, 1996, through his driver whom he had sent to the bank. Cunanan, however, did not notice that while the withdrawal was supposed to have been made on January 3, 1996, the withdrawal memo was dated January 2, 1996. Cunanan then instructed appellant to have the withdrawal posted in the corresponding ledger and to bring the withdrawal memo back to him so he and the branch manager, Edgardo Panlilio, could affix their signatures.

Meanwhile, Frias checked the account ledger of FX-836, and found a "hold jacket" indicating that no withdrawal from the said account should be allowed to reduce its balance below $35,000.00. The supposed withdrawal of $10,000.00 had reduced the account balance of FX-836 to $26,077.51.

From the account ledger, Frias also discovered that a deposit of $10,000.00 was made on January 2, 1996. He found the deposit memo on file. Thereafter, Frias compared the signature on the withdrawal memo with the specimen signatures of the depositors in their signature card. Finding a "big difference" in the signatures, he referred the matter to the branch manager, Edgardo Panlilio ("Panlilio").

Asked by Panlilio to explain, appellant reiterated that the withdrawal was made after the cut-off time on December 29, 1995. Doubting her explanation, Frias conducted another cash count. At that time, appellant’s accountability based on the books of the bank was $21,778.86, but the money in her cash box was only $11,778.86, thus, short of US$10,000.00. When Panlilio again asked appellant to explain, the latter started to cry and said she would explain to the bank president.

The next day, January 4, 1996, appellant told Panlilio that she gave the $10,000.00 to a person on December 29, 1995 because her family was being threatened.

In her letter to the bank president dated January 4, 1996, appellant apologized and explained her shortage of $10,000.00 and another shortage of P2.2 Million which the audit team had also discovered. She wrote:

… Sometime in the month of September, a man approached me at my counter and handed me a note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told him I don’t have any. He told me to get at my drawer and not to tell anybody because their companions are at the nearby of my house (sic) and threatened me that something will happened (sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm at my counter but it was out of order. This alarm was out of order for quite sometime but I was still hoping it might work. Since that day, time and again, he kept on coming back and I could’nt do anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around 3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was balancing my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous & gave him the dollars.

During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose to be for late deposit) & included them in today’s clearing. The following day, I validated the deposit slips as cash deposit. . .

Apolinario Tayag denied withdrawing $10,000.00 from FX-836 either on December 29, 1995 or on January 2, 1996 when he was in Baguio City. He said he was not familiar with the withdrawal and deposit memos showing the withdrawal of $10,000.00 from the said account and the subsequent deposit of the same amount therein. He also denied the signatures thereon as his or his mother’s.

x x x

Upon the State resting its case against the accused, her counsel filed a Demurrer to Evidence and Motion to Defer Defense Evidence,5 praying for the dismissal of the charge on the ground that the evidence of the State did not suffice to establish her guilt beyond reasonable doubt.

However, the RTC denied the Demurrer to Evidence and Motion to Defer Defense Evidence and deemed the case submitted for decision on the basis that her filing her demurrer to evidence without express leave of court as required by Section 15, Rule 119, of the Rules of Court had waived her right to present evidence, viz: 6

WHEREFORE, the Demurer to Evidence filed by the accused is hereby denied for lack of merit.

Reviewing further the records of this case, there is evidence and proof that the Demurrer to Evidence filed by the accused Cristobal is without express leave of court hence, under Section 15 par. 2 of Rule 119, accused Cristobal has waived her right to present evidence and submit the case for judgment on the basis of the evidence for the prosecution.

In view thereof, this case filed against accused Cristobal is hereby submitted for decision.

SO ORDERED.

On May 26, 2000, therefore, the RTC rendered its decision finding and pronouncing the accused guilty of qualified theft,7 disposing:

WHEREFORE, the Court finds Olivia Aleth Cristobal guilty beyond reasonable doubt of the crime of Qualified Theft and hereby sentences her to suffer the penalty of imprisonment of ten (10) years and one (1) day of prision mayor to twenty (20) years of reclusion temporal as maximum.

Accused Cristobal is also ordered to pay Prudential Bank, the amount of US $10,000.00, representing the amount that was lost, plus interest.

SO ORDERED.

The accused appealed, but the CA affirmed her conviction on July 31, 2003, albeit modifying the penalty,8 finding and ruling as follows:

The following circumstances as established by the prosecution’s evidence, show beyond reasonable doubt that appellant stole US$10,000.00 from Prudential Bank:

1. Appellant was the only teller in the Angeles City main branch of Prudential Bank assigned to handle dollar transactions. Thus, it was only she who had access to the subject account for purposes of dollar deposits and withdrawals;

2. She admitted having transacted or processed the supposed withdrawal of US$10,000.00 from dollar savings account no. FX-836;

3. It was she who presented to the head auditor, Rolando Frias, the withdrawal memo for US$10,000.00 supposedly withdrawn from dollar savings account no. FX-836, saying that it was withdrawn on December 29, 1995 after the cut-off time and would be considered a withdrawal on January 2, 1996;

4. The said withdrawal memo did not contain the required signatures of two bank officers;

5. The supposed withdrawal of $10,000.00 from dollar savings account no. FX-836 reduced the balance thereof to P26,077.51, violating the "hold jacket" or instruction in the account ledger which disallowed any withdrawal from the said account that would reduce the balance thereof below P35,000.00;

6. The discrepancy in the signature on the withdrawal memo and the specimen signatures in the depositors’ signature card;

7. Asked to explain the shortage of $10,000.00 revealed by the second cash count, following the discovery of the aforesaid "hold jacket" in the account ledger and discrepancy in the signatures, appellant began to cry, saying she would just explain to the bank president;

8. The depositor, Apolinario Tayag, denied withdrawing money from dollar savings account no. FX-836 either on December 29, 1995, when appellant claimed the withdrawal was made, or on January 2, 1996, the date of the withdrawal memo, at which time he was in Baguio City. He was not familiar with the withdrawal and deposit memos showing the withdrawal of $10,000.00 from the said account and the subsequent deposit of the same amount therein. He also denied that the signatures thereon belong to him or his mother, Adoracion Tayag, with whom he shares the account as co-signatory;

9. In her letter to the bank president, she admitted appropriating US$10,000.00 and P2.2 Million, and explained how she covered it up;

10. Appellant gave different and inconsistent explanations for her shortage of US$10,000.00. She explained to the auditors that the said amount was withdrawn on December 29, 1995 after the cut-off time, hence, would be considered as a withdrawal on January 2, 1996. To the branch cashier, Noel Cunanan, she said that Apolinario Tayag had instructed her to withdraw $10,000.00 from his account on January 3, 1996, through his driver whom he had sent to the bank. Later, she told Panlilio and the bank president that she gave the $10,000.00 to a person on December 29, 1995 because he had threatened her family; and

11. In her letter to the bank president, she mentioned five instances when the unidentified man supposedly threatened her and demanded money from her. However, she never reported any of these incidents to any of the bank officers or the police authorities.

Even without an eyewitness, the foregoing circumstances indicate that appellant committed the crime, to the exclusion of all others.

In the absence of an eyewitness, reliance on circumstantial evidence becomes inevitable. Circumstantial evidence is defined as that which indirectly proves a fact in issue through an inference which the factfinder draws from the evidence established. Resort thereto is essential when the lack of direct testimony would, in many cases, result in setting a felon free and denying proper protection to the community. In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz., (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

As hereinbefore shown, there is more than one circumstance or indication of appellant’s guilt. Moreover, the said circumstances, from which the act of taking could be inferred, had been established by the prosecution’s evidence. And the combination of the said circumstances is clearly sufficient to convict the appellant of qualified theft beyond reasonable doubt.

In conclusion, We hold that the totality of the evidence points to no other conclusion than that accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court. This is how it is in this case.

xxx

WHEREFORE, the assailed Decision convicting the accused-appellant of Qualified Theft is hereby AFFIRMEDwith MODIFICATION in that the penalty shall be reclusion perpetua and the accessory penalties of death under Article 40 of the Revised Penal Code, and accused-appellant shall pay Prudential Bank US$10,000.00, withoutinterest.

SO ORDERED.

Issues

In her appeal, the accused submits that the CA gravely erred:

1. xxx in affirming the conviction of the accused on the basis of an information for qualified theft that charges the accused to have taken $10,000.00 on January 2, 1996 when the evidence on record based on various admissions of the prosecution's witnesses reveal that the accused did not and cannot take away $10,000.00 on January 2, 1996.

2. xxx in affirming the conviction of the accused based on an extra-judicial admission that was made without assistance of counsel and hearsay evidence as testified by the next most possible suspects to the loss.

3. xxx in affirming the conviction of the accused when the facts and evidence on record do not satisfy the elements of the crime as charged.

4. xxx in affirming the conviction of the accused when the very procedure employed by the trial court in the case at bench showed leniency to the prosecution and strictness to the defense in violation of the constitutional and statutory rights of the accused.

5. xxx in affirming the ruling of the trial court that the accused had waived her right to present evidence-in-chief despite the expressed motion to defer its presentation when the demurrer to evidence was filed.9

The assigned errors are restated thuswise:

(a) Whether the information filed against the accused was fatally defective;

(b) Whether the RTC correctly found that the accused had waived her right to present evidence in her defense; and

(c) Whether the extrajudicial admission of taking the amount involved contained in the letter of the accused to the President of Prudential Bank was admissible under the rules and jurisprudence.

Ruling

We deny the petition for review and affirm the CA’s decision.

1.

Findings of CA and RTC are affirmeddue to being based on the evidence

There is no question about the findings of fact being based on the evidence adduced by the Prosecution. The decisions of both lower courts are remarkable for their thoroughness and completeness. In fact, the accused did not impugn the findings of fact, and confined herself only to the validity of the information and the legality of her letter due to its being held admissible as evidence against her. Although she decried her failure to present her evidence on account of her having demurred without express leave of court, that, too, was not an obstacle to the correctness of the findings of fact against her. Thus, we sustain the findings of fact, for findings of the CA upon factual matters are conclusive and ought not to be disturbed unless they are shown to be contrary to the evidence on record.10

2.

Information was sufficient and valid

The petitioner submits that the information charged her with qualified theft that allegedly transpired on December 29, 1995, but the evidence at trial could not be the basis of her conviction because it actually proved that the taking had transpired on January 2, 1996; and that the discrepancy would unduly prejudice her rights as an accused to be informed of the charges as to enable her to prepare for her defense. To bolster her submission, she cites the testimony of Virgilio Frias11 to the effect that she was cleared of her accountability upon her turning her cash box over to the bank cashier on December 29, 1995, thereby negating the accusation that she had taken the money on December 29, 1995.

The petitioner’s submission is untenable.

The main purpose of requiring the various elements of a crime to be set forth in the information is to enable the accused to adequately prepare her defense.12 As to the sufficiency of the allegation of the time or date of the commission of the offense, Section 6 and Section 11, Rule 110 of the Revised Rules of Court, the rules applicable,13 provide:

Section 6. Sufficiency of complaint or information. – A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense; and the place wherein the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information. (5a)

Section 11. Time of the commission of the offense. – It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. (10)

Conformably with these rules, the information was sufficient because it stated the approximate time of the commission of the offense through the words "on or about the 2nd of January, 1996," and the accused could reasonably deduce the nature of the criminal act with which she was charged from a reading of its contents as well as gather by such reading whatever she needed to know about the charge to enable her to prepare her defense.

The information herein did not have to state the precise date when the offense was committed, considering that the date was not a material ingredient of the offense. As such, the offense of qualified theft could be alleged to be committed on a date as near as possible to the actual date

of its commission.14 Verily, December 29, 1995 and January 2, 1996 were dates only four days apart.

With the information herein conforming to the standard erected by the Revised Rules of Court and pertinent judicial pronouncements, the accused was fully apprised of the charge of qualified theft involving the US$10,000.00 belonging to her employer on or about January 2, 1996.

3.

CA and RTC did not err in deeming petitionerto have waived her right to present evidence

The accused contended that:

xxx

(2) The trial court denied accused (sic) ‘Demurrer To Evidence and Motion To Defer Defense Evidence’ and ruled that the accused is considered to have waived her evidence (for alleged lack of leave of court). Although the accused is not principally relying on this error (because the prosecution’s own evidence show that she is not guilty), still it was error for the trial court to deprive the accused of her day in court because the demurrer was at the same time, as stated in the title thereof, also a motion to defer defense evidence.15

The CA rejected her contention in the following manner:16

As to whether or not the Trial Court correctly ruled that appellant waived the presentation of her evidence when she filed her "Demurrer To Evidence and Motion to Defer Evidence" without prior leave of court, We rule in the affirmative.

Appellant’s theory that prior leave of court had been requested because her demurrer was, at the same time, also a motion to defer defense evidence, cannot be sustained. A motion to defer evidence does not constitute a request for leave to file a demurrer to evidence. In fact, such motion indicates that appellant wanted the Trial Court to consider the demurrer before proceeding to hear her evidence. Furthermore, there is nothing in appellant’s Demurrer from which it can be inferred that appellant was asking the Trial Court permission to move for the dismissal of the case.

Section 15, Rule 119 of the Rules of Criminal Procedure provides:

Sec. 15. Demurrer to Evidence. – After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the

prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (Emphasis supplied.)

Clearly, when the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. In such a case, the waiver of the right to present defense evidence is unqualified.

Unavoidably, Our attention is drawn to the apparent negligence of appellant’s counsel in failing to secure prior leave of court before filing her Demurrer to Evidence. However, We cannot lose sight of the fact that in law, the negligence of appellant’s counsel binds her. Indeed, jurisprudence teems with pronouncements that a client is bound by the conduct, negligence and mistakes of his counsel.

The CA did not thereby err.

The rule in point is Section 15, Rule 119, of the Revised Rules of Court, viz:

Section 15. Demurrer to evidence. – After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (n)

Under the rule, the RTC properly declared the accused to have waived her right to present evidence because she did not obtain the express leave of court for her demurrer to evidence, thereby reflecting her voluntary and knowing waiver of her right to present evidence. The RTC did not need to inquire into the voluntariness and intelligence of the waiver, for her opting to file her demurrer to evidence without first obtaining express leave of court effectively waived her right to present her evidence.

It is true that the Court has frequently deemed the failure of the trial courts to conduct an inquiry into the voluntariness and intelligence of the waiver to be a sufficient cause to remand cases to the trial courts for the purpose of ascertaining whether the accused truly intended to

waive their constitutional right to be heard, and whether they understood the consequences of their waivers.17 In People v. Bodoso,18 a prosecution for a capital offense, we leaned towards the protection of the accused’s constitutional right to due process by outlining the proper steps to be taken before deeming the right to present evidence as waived, thus:

Henceforth, to protect the constitutional right to due process of every accused in a capital offense and to avoid any confusion about the proper steps to be taken when a trial court comes face to face with an accused or his counsel who wants to waive his client’s right to present evidence and be heard, it shall be the unequivocal duty of the trial court to observe, as a prerequisite to the validity of such waiver, a procedure akin to a "searching inquiry" as specified in People v. Aranzado when an accused pleads guilty, particularly –

1. The trial court shall hear both the prosecution and the accused with their respective counsel on the desire or manifestation of the accused to waive the right to present evidence and be heard.

2. The trial court shall ensure the attendance of the prosecution and especially the accused with their respective counsel in the hearing which must be recorded. Their presence must be duly entered in the minutes of the proceedings.

3. During the hearing, it shall be the task of the trial court to –

a. ask the defense counsel a series of question to determine whether he had conferred with and completely explained to the accused that he had the right to present evidence and be heard as well as its meaning and consequences, together with the significance and outcome of the waiver of such right. If the lawyer for the accused has not done so, the trial court shall give the latter enough time to fulfill this professional obligation.

b. inquire from the defense counsel with conformity of the accused whether he wants to present evidence or submit a memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any, or in default theory, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. If there is a desire to do so, the trial court shall give the defense enough time to this purpose.

c. elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver.

d. all questions posed to the accused should be in a language known and understood by the latter, hence, the record must state the language used for

this purpose as well as reflect the corresponding translation thereof in English.

In passing, trial courts may also abide by the foregoing criminal procedure when the waiver of the right to be present and be heard is made in criminal cases involving non-capital offenses. After all, in whatever action or forum the accused is situated, the waiver that he makes if it is to be binding and effective must still be exhibited in the case records to have been validly undertaken, that is, it was done voluntarily, knowingly and intelligently with sufficient awareness of the relevant circumstances and likely consequences. As a matter of good court practice, the trial court would have to rely upon the most convenient, if not primary, evidence of the validity of the waiver which would amount to the same thing as showing its adherence to the step-by-step process outlined above.

Also, in Rivera v. People,19 which involved an accused charged with a non-capital offense who filed a demurrer to evidence without leave of court, the Court, citing People v. Bodoso, supra, remanded the case to the Sandiganbayan for further proceedings upon finding that the accused had

not been asked whether he had understood the consequences of filing the demurrer to evidence without leave of court.

Yet, the accused cannot be extended the benefit of People v. Bodoso and Rivera v. People. The factual milieus that warranted the safeguards in said criminal cases had nothing in common with the factual milieu in which the RTC deemed the herein accused to have waived her right to present evidence. The accused in People v. Bodoso, without filing a demurrer to evidence, expressly waived the right to present evidence. The Court felt that the trial court ought to have followed the steps outlined therein. The accused in Rivera v. People filed a demurrer to evidence without having to obtain an express leave of court, considering that the Sandiganbayan itself had told him to file the demurrer to evidence. Thus, after the demurrer to evidence was denied, the accused was held to be still entitled to present his evidence.

The accused and her counsel should not have ignored the potentially prejudicial consequence of the filing of a demurrer to evidence without the leave of court required in Section 15, Rule 119, of the Revised Rules of Court.20They were well aware of the risk of a denial of the demurrer being high, for by demurring the accused impliedly admitted the facts adduced by the State and the proper inferences therefrom.21 We cannot step in now to alleviate her self-inflicted plight, for which she had no one to blame but herself; otherwise, we may unduly diminish the essence of the rule that gave her the alternative option to waive presenting her own evidence.

4.

Petitioner’s handwritten letteris admissible in evidence

The next issue concerns the admissibility of the accused’s letter dated January 4, 1996 to Prudential Bank’s President explaining the shortage of her dollar collection as bank teller,22 the relevant portion of which follows:

xxx Sometime in the month of September, a man approached me at my counter and handed me a note demanding me (sic) to give him a big amount of money of P600,000. I looked at him and told him I don’t have any. He told me to get at my drawer and not to tell anybody because their companions are at the nearby of my house (sic) and threatened me that something will happened (sic) to my kids. That time he looked back and I also saw another man w/ radio at his waist, who stood up and went out. I nervously handed him the money. While doing this, I tried to pull the alarm at my counter but it was out of order. This alarm was out of order for quite sometime but I was still hoping it might work. Since that day, time and again, he kept on coming back and I could’nt do anything but to give in to his request. His second, he demanded for (sic) another P600,000 but I gave him only P530,000. The 3rd & 4th was P550,000 each. Last December 29, 1995 at around 3:00 pm, I was surprised to see him at my counter, again, he was asking for money. I was balancing my dollar transaction. But that time, I had delivered my peso cash box to our cashier. He saw the bundle of $10,000 which was on top of my desk because I was writing the breakdown on my cash count. He wanted me to give it to him & this time he pointed a gun at me and I got so nervous & gave him the dollars.

During this time, in order for me to be balance with (sic) my transactions, I cash out checks (suppose to be for late deposit) & included them in today’s clearing. The following day, I validated the deposit slips as cash deposit xxx.

The accused submits that the letter was inadmissible for being in reality an uncounselled extrajudicial confession, and for not being executed under oath.

The submission lacks persuasion.

The letter was not an extrajudicial confession whose validity depended on its being executed with the assistance of counsel and its being under oath, but a voluntary party admission under Section 26,23 Rule 130 of the Rules of Court that was admissible against her. An admission, if voluntary, is admissible against the admitter for the reason that it is fair to presume that the admission corresponds with the truth, and it is the admitter’s fault if the admission does not.24 By virtue of its being made by the party himself, an admission is competent primary evidence against the admitter.25

Worth pointing out is that the letter was not a confession due to its not expressly acknowledging the guilt of the accused for qualified theft. Under Section 30,26 Rule 130 of the

Rules of Court, a confession is a declaration of an accused acknowledging guilt for the offense charged, or for any offense necessarily included therein.

Nonetheless, there was no need for a counsel to have assisted the accused when she wrote the letter because she spontaneously made it while not under custodial investigation. Her insistence on the assistance of a counsel might be valid and better appreciated had she made the letter while under arrest, or during custodial investigation, or under coercion by the investigating authorities of the Government. The distinction of her situation from that of a person arrested or detained and under custodial investigation for the commission of an offense derived from the clear intent of insulating the latter from police coercion or intimidation underlying Section 12 of Article III (Bill of Rights) of the 1987 Constitution, which provides:

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

To reiterate, the rights under Section 12, supra, are available to "any person under investigation for the commission of an offense." The phrase does not cover all kinds of investigations, but contemplates only a situation wherein "a person is already in custody as a suspect, or if the person is the suspect, even if he is not yet deprived in any significant way of his liberty."27 The situation of the accused was not similar to that of a person already in custody as a suspect, or if the person is the suspect, even if she is not yet deprived in any significant way of his liberty.

5.

Penalty was correctly determined

We quote and adopt with approval the CA’s discourse on why the penalty of reclusion perpetua was appropriate for the offense committed by the accused, to wit:

The foregoing considered, appellant’s conviction must perforce be affirmed. The sentence imposed by the Trial Court should, however, be modified.

The Trial Court sentenced the appellant to imprisonment of ten (10) years and one (1) day of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. The correct penalty, however, should bereclusion perpetua with the accessory penalties of death under Article 40 of the Revised Penal Code.

Article 310 of the Revised Penal Code provides that qualified theft shall be punished by the penalties next higher by two degrees than those specified in Article 309 of the Revised Penal Code. Paragraph (1) of Article 309 states that if the value of the thing stolen exceeds P22,000, the penalty shall be the maximum period of prision mayor in its minimum and medium periods, and one year for each P10,000.00 in excess of P22,000.00, but the total of the penalty which may be imposed shall not exceed twenty years (or reclusion temporal).

Appellant stole US$10,000.00 or P262,140.00 computed based on the exchange rate on December 29, 1995 when the appropriation took place.

Under Article 309, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period since the amount stolen exceeded P22,000.00. To determine the additional years of imprisonment prescribed in Article 309 (1), the amount of P22,000.00 should be deducted from P262,140.00, thus, leaving the amount of P240,140.00. The net amount should then be divided by P10,000.00, disregarding any amount below P10,000.00. The result is the incremental penalty of twenty-four (24) years which must then be added to the basic penalty of the maximum period of prision mayor minimum and medium periods. The penalty ofprision mayor in its minimum and medium periods has a range of six years (6) and one (1) day to ten (10) years. Its maximum period is eight (8) years, eight (8) months and one (1) day to ten (10) years, and the incremental penalty is twenty-four (24) years. Had appellant committed simple theft, the penalty should have been twenty years of reclusion temporal, the maximum penalty allowable under Article 309, subject to the Indeterminate Sentence Law.

Considering that the theft is qualified by grave abuse of confidence, the penalty is two degrees higher than that specified under Article 309. Under Article 25 of the Revised Penal Code, two degrees higher than reclusion temporal is death. However, Article 74 of the same Code provides that in cases in which the law prescribes a penalty higher than another given penalty, without specifically designating the name of the former, and if such higher penalty should be that of death, the same penalty and the accessory penalties of Article 40, shall be considered as the next higher penalty.1âwphi1

The Supreme Court held that in such a case, the accused should be meted the penalty of reclusion perpetua for forty years with the accessory penalties of death under Article 40 of the Revised Penal Code.

WHEREFORE, we deny the petition for review on certiorari, and affirm the decision promulgated on July 31, 2003 in CA-G.R. CR No. 24556.

SO ORDERED.

LUCAS P. BERSAMINAssociate Justice

WE CONCUR:

CONCHITA CARPIO MORALESAssociate Justice

Chairperson


MARTIN S. VILLARAMA, JR.Associate Justice

MARIA LOURDES P. A. SERENOAssociate Justice


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.

CONCHITA CARPIO MORALESAssociate JusticeChairperson


Pursuant to 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.

RENATO C. CORONAChief Justice


Manila

THIRD DIVISION

G.R. No. 189122 March 17, 2010

JOSE ANTONIO LEVISTE, Petitioner, vs.THE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

CORONA, J.:

Bail, the security given by an accused who is in the custody of the law for his release to guarantee his appearance before any court as may be required,1 is the answer of the criminal justice system to a vexing question: what is to be done with the accused, whose guilt has not yet been proven, in the "dubious interval," often years long, between arrest and final adjudication?2 Bail acts as a reconciling mechanism to accommodate both the accused’s interest in pretrial liberty and society’s interest in assuring the accused’s presence at trial.3

Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the accused who has been sentenced to prison must typically begin serving time immediately unless, on application, he is admitted to bail.4 An accused not released on bail is incarcerated before an appellate court confirms that his conviction is legal and proper. An erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.5 Even if the conviction is subsequently affirmed, however, the accused’s interest in bail pending appeal includes freedom pending judicial review, opportunity to efficiently prepare his case and avoidance of potential hardships of prison.6 On the other hand, society has a compelling interest in protecting itself by swiftly incarcerating an individual who is found guilty beyond reasonable doubt of a crime serious enough to warrant prison time.7 Other recognized societal interests in the denial of bail pending appeal include the prevention of the accused’s flight from court custody, the protection of the community from potential danger and the avoidance of delay in punishment.8 Under what circumstances an accused may obtain bail pending appeal, then, is a delicate balance between the interests of society and those of the accused.9

Our rules authorize the proper courts to exercise discretion in the grant of bail pending appeal to those convicted by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. In the exercise of that discretion, the proper courts are to be

guided by the fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the accused has been in fact convicted by the trial court.10

The Facts

Charged with the murder of Rafael de las Alas, petitioner Jose Antonio Leviste was convicted by the Regional Trial Court of Makati City for the lesser crime of homicide and sentenced to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of reclusion temporal as maximum.11

He appealed his conviction to the Court of Appeals.12 Pending appeal, he filed an urgent application for admission to bail pending appeal, citing his advanced age and health condition, and claiming the absence of any risk or possibility of flight on his part.

The Court of Appeals denied petitioner’s application for bail.13 It invoked the bedrock principle in the matter of bail pending appeal, that the discretion to extend bail during the course of appeal should be exercised "with grave caution and only for strong reasons." Citing well-established jurisprudence, it ruled that bail is not a sick pass for an ailing or aged detainee or a prisoner needing medical care outside the prison facility. It found that petitioner

… failed to show that he suffers from ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. x x x Notably, the physical condition of [petitioner] does not prevent him from seeking medical attention while confined in prison, though he clearly preferred to be attended by his personal physician.14

For purposes of determining whether petitioner’s application for bail could be allowed pending appeal, the Court of Appeals also considered the fact of petitioner’s conviction. It made a preliminary evaluation of petitioner’s case and made a prima facie determination that there was no reason substantial enough to overturn the evidence of petitioner’s guilt.

Petitioner’s motion for reconsideration was denied.15

Petitioner now questions as grave abuse of discretion the denial of his application for bail, considering that none of the conditions justifying denial of bail under the third paragraph of Section 5, Rule 114 of the Rules of Court was present. Petitioner’s theory is that, where the penalty imposed by the trial court is more than six years but not more than 20 years and the circumstances mentioned in the third paragraph of Section 5 are absent, bail must be granted to an appellant pending appeal.

The Issue

The question presented to the Court is this: in an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, does the discretionary nature of the grant of bail pending appeal mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court?

Section 5, Rule 114 of the Rules of Court provides:

Sec. 5. Bail, when discretionary. — Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without a valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (emphasis supplied)

Petitioner claims that, in the absence of any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court, an application for bail by an appellant sentenced by the Regional Trial Court to a penalty of more than six years’ imprisonment should automatically be granted.

Petitioner’s stance is contrary to fundamental considerations of procedural and substantive rules.

Basic Procedural Concerns Forbid Grant of Petition

Petitioner filed this special civil action for certiorari under Rule 65 of the Rules of Court to assail the denial by the Court of Appeals of his urgent application for admission to bail pending appeal. While the said remedy may be resorted to challenge an interlocutory order, such remedy is proper only where the interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.16

Other than the sweeping averment that "[t]he Court of Appeals committed grave abuse of discretion in denying petitioner’s application for bail pending appeal despite the fact that none of the conditions to justify the denial thereof under Rule 114, Section 5 [is] present, much less proven by the prosecution,"17 however, petitioner actually failed to establish that the Court of Appeals indeed acted with grave abuse of discretion. He simply relies on his claim that the Court of Appeals should have granted bail in view of the absence of any of the circumstances enumerated in the third paragraph of Section 5, Rule 114 of the Rules of Court. Furthermore, petitioner asserts that the Court of Appeals committed a grave error and prejudged the appeal by denying his application for bail on the ground that the evidence that he committed a capital offense was strong.

We disagree.

It cannot be said that the Court of Appeals issued the assailed resolution without or in excess of its jurisdiction. One, pending appeal of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is expressly declared to be discretionary. Two, the discretion to allow or disallow bail pending appeal in a case such as this where the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable is exclusively lodged by the rules with the appellate court. Thus, the Court of Appeals had jurisdiction to hear and resolve petitioner’s urgent application for admission to bail pending appeal.

Neither can it be correctly claimed that the Court of Appeals committed grave abuse of discretion when it denied petitioner’s application for bail pending appeal. Grave abuse of discretion is not simply an error in judgmentbut it is such a capricious and whimsical exercise of judgment which is tantamount to lack of jurisdiction.18Ordinary abuse of discretion is insufficient. The abuse of discretion must be grave, that is, the power is exercised in an

arbitrary or despotic manner by reason of passion or personal hostility.19 It must be so patent and gross as to amount to evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari to prosper, there must be a clear showing of caprice and arbitrariness in the exercise of discretion.20

Petitioner never alleged that, in denying his application for bail pending appeal, the Court of Appeals exercised its judgment capriciously and whimsically. No capriciousness or arbitrariness in the exercise of discretion was ever imputed to the appellate court. Nor could any such implication or imputation be inferred. As observed earlier, the Court of Appeals exercised grave caution in the exercise of its discretion. The denial of petitioner’s application for bail pending appeal was not unreasonable but was the result of a thorough assessment of petitioner’s claim of ill health. By making a preliminary appraisal of the merits of the case for the purpose of granting bail, the court also determined whether the appeal was frivolous or not, or whether it raised a substantial question. The appellate court did not exercise its discretion in a careless manner but followed doctrinal rulings of this Court.

At best, petitioner only points out the Court of Appeal’s erroneous application and interpretation of Section 5, Rule 114 of the Rules of Court. However, the extraordinary writ of certiorari will not be issued to cure errors in proceedings or erroneous conclusions of law or fact.21 In this connection, Lee v. People22 is apropos:

… Certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded its jurisdiction over the case, even if its findings are not correct. Its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari.

In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the court’s findings and conclusions. An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari will not only delay the administration of justice but will also unduly burden the courts.23 (emphasis supplied)

Wording of Third Paragraph of Section 5, Rule 114 Contradicts Petitioner’s Interpretation

The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first scenario deals with the circumstances enumerated in the said paragraph (namely, recidivism, quasi-recidivism, habitual delinquency or commission of the crime aggravated by the circumstance of reiteration; previous escape from legal confinement, evasion of sentence or violation of the conditions of his bail without a valid justification; commission of the offense while under

probation, parole or conditional pardon; circumstances indicating the probability of flight if released on bail; undue risk of committing another crime during the pendency of the appeal; or other similar circumstances) not present. The second scenario contemplates the existence of at least one of the said circumstances.

The implications of this distinction are discussed with erudition and clarity in the commentary of retired Supreme Court Justice Florenz D. Regalado, an authority in remedial law:

Under the present revised Rule 114, the availability of bail to an accused may be summarized in the following rules:

x x x x x x x x x

e. After conviction by the Regional Trial Court wherein a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed, and not one of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, bail is a matter of discretion (Sec. 5);

f. After conviction by the Regional Trial Court imposing a penalty of imprisonment exceeding 6 years but not more than 20 years, and any of the circumstances stated in Sec. 5 or any other similar circumstance is present and proved, no bail shall be granted by said court (Sec. 5); x x x24 (emphasis supplied)

Retired Court of Appeals Justice Oscar M. Herrera, another authority in remedial law, is of the same thinking:

Bail is either a matter of right or of discretion. It is a matter of right when the offense charged is not punishable by death, reclusion perpetua or life imprisonment. On the other hand, upon conviction by the Regional Trial Court of an offense not punishable death, reclusion perpetua or life imprisonment, bail becomes a matter of discretion.

Similarly, if the court imposed a penalty of imprisonment exceeding six (6) years then bail is a matter of discretion, except when any of the enumerated circumstances under paragraph 3 of Section 5, Rule 114 is present then bail shall be denied.25 (emphasis supplied)

In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating26 circumstances in the third paragraph of Section 5, Rule 114 are absent. In other words, the appellate court’s denial of bail pending appeal where none of the said circumstances exists does not, by and of itself, constitute abuse of discretion.

On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Conversely, if the appellate court grants bail pending appeal, grave abuse of discretion will thereby be committed.

Given these two distinct scenarios, therefore, any application for bail pending appeal should be viewed from the perspective of two stages: (1) the determination of discretion stage, where the appellate court must determine whether any of the circumstances in the third paragraph of Section 5, Rule 114 is present; this will establish whether or not the appellate court will exercise sound discretion or stringent discretion in resolving the application for bail pending appeal and (2) the exercise of discretion stage where, assuming the appellant’s case falls within the first scenario allowing the exercise of sound discretion, the appellate court may consider all relevant circumstances, other than those mentioned in the third paragraph of Section 5, Rule 114, including the demands of equity and justice;27 on the basis thereof, it may either allow or disallow bail.

On the other hand, if the appellant’s case falls within the second scenario, the appellate court’s stringent discretion requires that the exercise thereof be primarily focused on the determination of the proof of the presence of any of the circumstances that are prejudicial to the allowance of bail. This is so because the existence of any of those circumstances is by itself sufficient to deny or revoke bail. Nonetheless, a finding that none of the said circumstances is present will not automatically result in the grant of bail. Such finding will simply authorize the court to use the less stringent sound discretion approach.

Petitioner disregards the fine yet substantial distinction between the two different situations that are governed by the third paragraph of Section 5, Rule 114. Instead, petitioner insists on a simplistic treatment that unduly dilutes the import of the said provision and trivializes the established policy governing the grant of bail pending appeal.

In particular, a careful reading of petitioner’s arguments reveals that it interprets the third paragraph of Section 5, Rule 114 to cover all situations where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years. For petitioner, in such a situation, the grant of bail pending appeal is always subject to limited discretion, that is, one restricted to the determination of whether any of the five bail-negating circumstances exists. The implication of this position is that, if any such circumstance is present, then bail will be denied. Otherwise, bail will be granted pending appeal.

Petitioner’s theory therefore reduces the appellate court into a mere fact-finding body whose authority is limited to determining whether any of the five circumstances mentioned in the third paragraph of Section 5, Rule 114 exists. This unduly constricts its "discretion" into merely filling out the checklist of circumstances in the third paragraph of Section 5, Rule 114 in all instances where the penalty imposed by the Regional Trial Court on the appellant is imprisonment exceeding six years. In short, petitioner’s interpretation severely curbs the

discretion of the appellate court by requiring it to determine a singular factual issue — whether any of the five bail-negating circumstances is present.

However, judicial discretion has been defined as "choice."28 Choice occurs where, between "two alternatives or among a possibly infinite number (of options)," there is "more than one possible outcome, with the selection of the outcome left to the decision maker."29 On the other hand, the establishment of a clearly defined rule of action is the end of discretion.30 Thus, by severely clipping the appellate court’s discretion and relegating that tribunal to a mere fact-finding body in applications for bail pending appeal in all instances where the penalty imposed by the trial court on the appellant is imprisonment exceeding six years, petitioner’s theory effectively renders nugatory the provision that "upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary."

The judicial discretion granted to the proper court (the Court of Appeals in this case) to rule on applications for bail pending appeal must necessarily involve the exercise of judgment on the part of the court. The court must be allowed reasonable latitude to express its own view of the case, its appreciation of the facts and its understanding of the applicable law on the matter.31 In view of the grave caution required of it, the court should consider whether or not, under all circumstances, the accused will be present to abide by his punishment if his conviction is affirmed.32 It should also give due regard to any other pertinent matters beyond the record of the particular case, such as the record, character and reputation of the applicant,33 among other things. More importantly, the discretion to determine allowance or disallowance of bail pending appeal necessarily includes, at the very least, an initial determination that the appeal is not frivolous but raises a substantial question of law or fact which must be determined by the appellate court.34 In other words, a threshold requirement for the grant of bail is a showing that the appeal is not pro forma and merely intended for delay but presents a fairly debatable issue.35 This must be so; otherwise, the appellate courts will be deluged with frivolous and time-wasting appeals made for the purpose of taking advantage of a lenient attitude on bail pending appeal. Even more significantly, this comports with the very strong presumption on appeal that the lower court’s exercise of discretionary power was sound,36specially since the rules on criminal procedure require that no judgment shall be reversed or modified by the Court of Appeals except for substantial error.37

Moreover, to limit the bail-negating circumstances to the five situations mentioned in the third paragraph of Section 5, Rule 114 is wrong. By restricting the bail-negating circumstances to those expressly mentioned, petitioner applies the expressio unius est exclusio alterius38 rule in statutory construction. However, the very language of the third paragraph of Section 5, Rule 114 contradicts the idea that the enumeration of the five situations therein was meant to be exclusive. The provision categorically refers to "the following or other similar circumstances." Hence, under the rules, similarly relevant situations other than those listed in the third paragraph of Section 5, Rule 114 may be considered in the allowance, denial or revocation of bail pending appeal.

Finally, laws and rules should not be interpreted in such a way that leads to unreasonable or senseless consequences. An absurd situation will result from adopting petitioner’s interpretation that, where the penalty imposed by the trial court is imprisonment exceeding six years, bail ought to be granted if none of the listed bail-negating circumstances exists. Allowance of bail pending appeal in cases where the penalty imposed is more than six years of imprisonment will be more lenient than in cases where the penalty imposed does not exceed six years. While denial or revocation of bail in cases where the penalty imposed is more than six years’ imprisonment must be made only if any of the five bail-negating conditions is present, bail pending appeal in cases where the penalty imposed does not exceed six years imprisonment may be denied even without those conditions.

Is it reasonable and in conformity with the dictates of justice that bail pending appeal be more accessible to those convicted of serious offenses, compared to those convicted of less serious crimes?

Petitioner’s Theory Deviates from History And Evolution of Rule on Bail Pending Appeal

Petitioner’s interpretation deviates from, even radically alters, the history and evolution of the provisions on bail pending appeal.

The relevant original provisions on bail were provided under Sections 3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure:

Sec. 3. Offenses less than capital before conviction by the Court of First Instance. — After judgment by a municipal judge and before conviction by the Court of First Instance, the defendant shall be admitted to bail as of right.

Sec. 4. Non-capital offenses after conviction by the Court of First Instance. — After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court.

Sec. 5. Capital offense defined. — A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death.

Sec. 6. Capital offense not bailable. — No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong.

The aforementioned provisions were reproduced as Sections 3 to 6, Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985 Rules of Criminal Procedure. They were modified in 1988 to read as follows:

Sec. 3. Bail, a matter of right; exception. — All persons in custody, shall before final conviction be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.

Sec. 4. Capital offense, defined. — A capital offense, as the term is used in this Rules, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death. (emphasis supplied)

The significance of the above changes was clarified in Administrative Circular No. 2-92 dated January 20, 1992 as follows:

The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides:

Sec. 3. Bail, a matter of right; exception. — All persons in custody, shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.

Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong.

Hence, for the guidelines of the bench and bar with respect to future as well as pending cases before the trial courts, this Court en banc lays down the following policies concerning the effectivity of the bail of the accused, to wit:

1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court, as amended;

2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied;

3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal.

As to criminal cases covered under the third rule abovecited, which are now pending appeal before his Court where the accused is still on provisional liberty, the following rules are laid down:

1) This Court shall order the bondsman to surrender the accused within ten (10) days from notice to the court of origin. The bondsman thereupon, shall inform this Court of the fact of surrender, after which, the cancellation of the bond shall be ordered by this Court;

2) The RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal;

3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be deemed to have jumped his bail. (emphasis supplied)

Amendments were further introduced in Administrative Circular No. 12-94 dated August 16, 1994 which brought about important changes in the said rules as follows:

SECTION 4. Bail, a matter of right. — All persons in custody shall: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of this Rule. (3a)

SECTION 5. Bail, when discretionary. — Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period of appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement, evaded sentence or has violated the conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation, parole, under conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party. (n)

SECTION 6. Capital offense, defined. — A capital offense, as the term is used in these Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, maybe punished with death. (4)

SECTION 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. — No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. (emphasis supplied)

The above amendments of Administrative Circular No. 12-94 to Rule 114 were thereafter amended by A.M. No. 00-5-03-SC to read as they do now.

The development over time of these rules reveals an orientation towards a more restrictive approach to bail pending appeal. It indicates a faithful adherence to the bedrock principle, that is, bail pending appeal should be allowed not with leniency but with grave caution and only for strong reasons.

The earliest rules on the matter made all grants of bail after conviction for a non-capital offense by the Court of First Instance (predecessor of the Regional Trial Court) discretionary. The 1988 amendments made applications for bail pending appeal favorable to the appellant-applicant. Bail before final conviction in trial courts for non-capital offenses or offenses not punishable by reclusion perpetua was a matter of right, meaning, admission to bail was a matter of right at any stage of the action where the charge was not for a capital offense or was not punished by reclusion perpetua.39

The amendments introduced by Administrative Circular No. 12-94 made bail pending appeal (of a conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment) discretionary. Thus, Administrative Circular No. 12-94 laid down more stringent rules on the matter of post-conviction grant of bail.

A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by clearly identifying which court has authority to act on applications for bail pending appeal under certain conditions and in particular situations. More importantly, it reiterated the "tough on bail pending appeal" configuration of Administrative Circular No. 12-94. In particular, it amended Section 3 of the 1988 Rules on Criminal Procedure which entitled the accused to bail as a matter of right before final conviction.40 Under the present rule, bail is a matter of discretion upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. Indeed, pursuant to the "tough on bail pending appeal" policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited.

Now, what is more in consonance with a stringent standards approach to bail pending appeal? What is more in conformity with an ex abundante cautelam view of bail pending appeal? Is it a rule which favors the automatic grant of bail in the absence of any of the circumstances under the third paragraph of Section 5, Rule 114? Or is it a rule that authorizes the denial of bail after due consideration of all relevant circumstances, even if none of the circumstances under the third paragraph of Section 5, Rule 114 is present?

The present inclination of the rules on criminal procedure to frown on bail pending appeal parallels the approach adopted in the United States where our original constitutional and procedural provisions on bail emanated.41While this is of course not to be followed blindly, it nonetheless shows that our treatment of bail pending appeal is no different from that in other democratic societies.

In our jurisdiction, the trend towards a strict attitude towards the allowance of bail pending appeal is anchored on the principle that judicial discretion — particularly with respect to extending bail — should be exercised not with laxity but with caution and only for strong reasons.42 In fact, it has even been pointed out that "grave caution that must attend the exercise of judicial discretion in granting bail to a convicted accused is best illustrated and exemplified in Administrative Circular No. 12-94 amending Rule 114, Section 5."43

Furthermore, this Court has been guided by the following:

The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.44 (emphasis supplied)

As a matter of fact, endorsing the reasoning quoted above and relying thereon, the Court declared in Yap v. Court of Appeals45 (promulgated in 2001 when the present rules were already effective), that denial of bail pending appeal is "a matter of wise discretion."

A Final Word

Section 13, Article II of the Constitution provides:

SEC. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. x x x (emphasis supplied)1avvphi1

After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.46 From then on, the grant of bail is subject to judicial discretion. At the risk of being repetitious, such discretion must be exercised with grave caution and only for strong reasons. Considering that the accused was in fact convicted by the trial court, allowance of bail pending appeal should be guided by a stringent-standards approach. This judicial disposition finds strong support in the history and evolution of the rules on bail and the language of Section 5, Rule 114 of the Rules of Court. It is likewise consistent with the trial court’s initial determination that the accused should be in prison. Furthermore, letting the accused out on bail despite his conviction may destroy the deterrent effect of our criminal laws. This is especially germane to bail pending appeal because long delays often separate sentencing in the trial court and appellate review. In addition, at the post-conviction stage, the accused faces a certain prison sentence and thus may be more likely

to flee regardless of bail bonds or other release conditions. Finally, permitting bail too freely in spite of conviction invites frivolous and time-wasting appeals which will make a mockery of our criminal justice system and court processes.

WHEREFORE, the petition is hereby DISMISSED.

The Court of Appeals is hereby directed to resolve and decide, on the merits, the appeal of petitioner Jose Antonio Leviste docketed as CA-G.R. CR No. 32159, with dispatch.

Costs against petitioner.

SO ORDERED.

RENATO C. CORONAAssociate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice



RENATO C. CORONAAssociate JusticeChairperson


Pursuant to 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.

REYNATO S. PUNOChief Justice


THIRD DIVISION

G.R. Nos. 163972-77 March 28, 2008

JOSELITO RANIERO J. DAAN, Petitioner, vs.THE HON. SANDIGANBAYAN Respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Joselito Raniero J. Daan (petitioner), one of the accused in Criminal Cases Nos. 24167-24170, 24195-24196,1questions the denial by the Sandiganbayan of his plea bargaining proposal.

The antecedents facts are laid down by Sandiganbayan in its Resolution dated March 25, 2004, as follows:

Said accused,2 together with accused Benedicto E. Kuizon, were charged before this Court for three counts of malversation of public funds involving the sums of P3,293.00, P1,869.00, and P13,528.00, respectively, which they purportedly tried to conceal by falsifying the time book and payrolls for given period making it appear that some laborers worked on the construction of the new municipal hall building of Bato, Leyte and collected their respective salaries thereon when, in truth and in fact, they did not. Thus, in addition to the charge for malversation, the accused were also indicted before this Court for three counts of falsification of public document by a public officer or employee.

In the falsification cases, the accused offered to withdraw their plea of "not guilty" and substitute the same with a plea of "guilty", provided, the mitigating circumstances of confession or plea of guilt and voluntary surrender will be appreciated in their favor. In the alternative, if such proposal is not acceptable, said accused proposed instead to substitute their plea of "not guilty" to the crime of falsification of public document by a public officer or employee with a plea of "guilty", but to the lesser crime of falsification of a public document by a private individual. On the other hand, in the malversation cases, the accused offered to

substitute their plea of "not guilty" thereto with a plea of "guilty", but to the lesser crime of failure of an accountable officer to render accounts.

Insofar as the falsification cases are concerned, the prosecution found as acceptable the proposal of the accused to plead "guilty" to the lesser crime of falsification of public document by a private individual. The prosecution explained:

"With respect to the falsification cases earlier mentioned, it appears that the act of the accused in pleading guilty for a lesser offense of falsification by a private individual defined and penalized under Article 172 of the Revised Penal code will strengthen our cases against the principal accused, Municipal Mayor Benedicto Kuizon, who appears to be the master mind of these criminal acts."

Insofar as the malversation cases are concerned, the prosecution was likewise amenable to the offer of said accused to plead "guilty" to the lesser crime of failure of an accountable officer to render accounts because:

"x x x JOSELITO RANIERO J. DAAN has already restituted the total amount of P18,860.00 as per official receipt issued by the provincial government of Leyte dated February 26, 2002. In short, the damage caused to the government has already been restituted x x x.3

The Sandiganbayan, in the herein assailed Resolution,4 dated March 25, 2004, denied petitioner’s Motion to Plea Bargain, despite favorable recommendation by the prosecution, on the main ground that no cogent reason was presented to justify its approval.5

The Sandiganbayan likewise denied petitioner's Motion for Reconsideration in a Resolution dated May 31, 2004.

This compelled petitioner to file the present case for certiorari and prohibition with prayer for the issuance of a temporary restraining order and/ or writ of preliminary injunction under Rule 65 of the Rules of Court.

Petitioner argues that the Sandiganbayan committed grave abuse of discretion in denying his plea bargaining offer on the following grounds: first, petitioner is not an accountable officer and he merely affixed his signature on the payrolls on a "routinary basis," negating any criminal intent; and that the amount involved is only P18,860.00, which he already restituted.6

The petition is meritorious.

Plea bargaining in criminal cases is a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge.7

Plea bargaining is authorized under Section 2, Rule 116 of the Revised Rules of Criminal Procedure, to wit:

SEC. 2. Plea of guilty to a lesser offense. — At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (sec. 4, cir. 38-98)

Ordinarily, plea bargaining is made during the pre-trial stage of the proceedings. Sections 1 and 2, Rule 118 of the Rules of Court, require plea bargaining to be considered by the trial court at the pre-trial conference,8 viz:

SEC. 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

SEC. 2. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. (Emphasis supplied)

But it may also be made during the trial proper and even after the prosecution has finished presenting its evidence and rested its case. Thus, the Court has held that it is immaterial that

plea bargaining was not made during the pre-trial stage or that it was made only after the prosecution already presented several witnesses.9

Section 2, Rule 116 of the Rules of Court presents the basic requisites upon which plea bargaining may be made,i.e., that it should be with the consent of the offended party and the prosecutor,10 and that the plea of guilt should be to a lesser offense which is necessarily included in the offense charged. The rules however use word may in the second sentence of Section 2, denoting an exercise of discretion upon the trial court on whether to allow the accused to make such plea.11 Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to be allowed as a matter of bargaining or compromise for the convenience of the accused.12

In People of the Philippines v. Villarama,13 the Court ruled that the acceptance of an offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter that is addressed entirely to the sound discretion of the trial court,14 viz:

x x x In such situation, jurisprudence has provided the trial court and the Office of the Prosecutor with a yardstick within which their discretion may be properly exercised. Thus, in People v. Kayanan (L-39355, May 31, 1978, 83 SCRA 437, 450), We held that the rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. In his concurring opinion in People v. Parohinog (G.R. No. L-47462, February 28, 1980, 96 SCRA 373, 377), then Justice Antonio Barredo explained clearly and tersely the rationale or the law:

x x x (A)fter the prosecution had already rested, the only basis on which the fiscal and the court could rightfully act in allowing the appellant to change his former plea of not guilty to murder to guilty to the lesser crime of homicide could be nothing more nothing less than the evidence already in the record. The reason for this being that Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for a lesser offense is allowed was not and could not have been intended as a procedure for compromise, much less bargaining.15 (Emphasis supplied)

However, Villarama involved plea bargaining after the prosecution had already rested its case.

As regards plea bargaining during the pre-trial stage, as in the present case, the trial court's exercise of its discretion should neither be arbitrary nor should it amount to a capricious and whimsical exercise of discretion. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act at all in contemplation of law.16

In the present case, the Sandiganbayan rejected petitioner's plea offer on the ground that petitioner and the prosecution failed to demonstrate that the proposal would redound to the benefit of the public. TheSandiganbayan believes that approving the proposal would "only serve to trivialize the seriousness of the charges against them and send the wrong signal to potential grafters in public office that the penalties they are likely to face would be lighter than what their criminal acts would have merited or that the economic benefits they are likely to derive from their criminal activities far outweigh the risks they face in committing them; thus, setting to naught the deterrent value of the laws intended to curb graft and corruption in government."171avvphi1

Apparently, the Sandiganbayan has proffered valid reasons in rejecting petitioner's plea offer. However, subsequent events and higher interests of justice and fair play dictate that petitioner's plea offer should be accepted. The present case calls for the judicious exercise of this Court's equity jurisdiction -

Equity as the complement of legal jurisdiction seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do. Equity regards the spirit of and not the letter, the intent and not the form, the substance rather than the circumstance, as it is variously expressed by different courts.18

and of its power of control and supervision over the proceedings of lower courts,19 in order to afford equal justice to petitioner.

In People of the Philippines v. Estrada,20 the Sandiganbayan, in its Resolution dated March 14, 2007, approved the Plea Bargaining Agreement entered into by the prosecution and one of the accused, Charlie "Atong" Ang. The agreement provided that the accused undertakes to assist in the prosecution of the case and promises to return the amount of P25,000,000.00. In approving the Plea Bargaining Agreement, the Sandiganbayan took into consideration the timeliness of the plea bargaining and whether the agreement complied with the requirements of Section 2, Rule 116 of the Rules of Court. The Sandigabayan noted that the accused had already withdrawn his earlier plea of "not guilty"; and that the prosecution consented to the plea of guilt to a lesser offense; and the lesser offense, which is Corruption of Public Officials in relation to Indirect Bribery, is necessarily included in the offense charged, which is Plunder.21

The Court sees no reason why the standards applied by the Sandiganbayan to Estrada should not be applied to the present case. Records show that there was a favorable recommendation by the Office of the Special Prosecutor to approve petitioner's motion to plea bargain. Thus, in its Memorandum dated August 16, 2002, the Office of the Special Prosecutor rationalized:

In the cases at bar, there is no dispute that JOSELITO RANIERO J. DAAN has already restituted the total amount of P18,860.00 as per official receipt issued by the provincial government of

Leyte dated February 26, 2002. In short, the damage caused to the government has already been restituted by the accused.

There is also no dispute that accused DAAN voluntarily surrendered in the instant cases. Moreover, the accused is also willing to plead guilty to a lesser offense which to our mind, merits consideration.

With respect to the falsification cases earlier mentioned, it appears that the act of the accused in pleading guilty for a lesser offense of falsification by private individual defined and penalized under Article 172 of the Revised Penal Code will strengthen our cases against the principal accused, the Municipal Mayor Benedicto Kuizon, who appears to be the master mind of these criminal acts. After all, the movants herein JOSELITO RANIERO J. DAAN was merely designated as draftsman detailed as foreman/timekeeper of the Municipality of Bato, Leyte.22

Moreover, the lesser offenses of Falsification by Private Individuals and Failure to Render Account by an Accountable Officer are necessarily included in the crimes of Falsification of Public Documents and Malversation of Public Funds, respectively, with which petitioner was originally charged.

Under Article 171, paragraph 4 of the Revised Penal Code, for the crime of Falsification of Public Documents through an untruthful narration of facts to be established, the following elements must concur: (a) the offender makes in a document untruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and (d) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.23

On the other hand, Falsification by Private Individuals penalized under Article 172, paragraph 1 of the Revised Penal Code has the following elements: (a) the offender is a private individual or a public officer or employee who did not take advantage of his official position; (b) the offender committed any of the acts of falsification enumerated under Article 171 of the Revised Penal Code; and (c) the falsification was committed in a public or official or commercial document.24

As regards the crime of Malversation of Public Funds defined and penalized under Article 217 of the Revised Penal Code, with which petitioner was also charged, the elements are as follows: (a) the offender is a public officer; (b) he has custody or control of funds or property by reason of the duties of his office; (c) the funds or property involved are public funds or property for which he is accountable; and (d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence permitted, the taking by another person of such funds or property.25 Article 217 also provides that the failure of the public officer to have duly forthcoming such public funds or property, upon demand by a duly authorized officer, "shall be prima facieevidence that he has put such missing funds or property to

personal use." In this regard, it has been ruled that once such presumption is rebutted, then it is completely destroyed; in fact, the presumption is never deemed to have existed at all.26

Meanwhile, under Article 218 of the Revised Penal Code, Failure to Render Account by an Accountable Officer, the lesser offense which petitioner seeks to plead guilty of, the following elements must concur: (a) the offender is a public officer; (b) the offender must be an accountable officer for public funds or property; (c) the offender is required by law or regulation to render accounts to the COA or to a provincial auditor; and (d) the offender fails to render an account for a period of two months after such accounts should be rendered.27

Section 5, Rule 120 of the Rules of Court states when an offense includes or is included in the other, to wit:

SEC. 5. When an offense includes or is included in another. — An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.

An offense may be said to necessarily include another when some of the essential elements or ingredients of the former as alleged in the complaint or information constitute the latter. And vice versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form part of those constituting the latter.28

In this case, the allegations in the Informations filed against petitioner are sufficient to hold petitioner liable for the lesser offenses. Thus, in the charge for Falsification of Public Documents, petitioner may plead guilty to the lesser offense of Falsification by Private Individuals inasmuch as it does not appear that petitioner took advantage of his official position in allegedly falsifying the timebook and payroll of the Municipality of Bato, Leyte. In the same vein, with regard to the crime of Malversation of Public Funds, while the Informations contain allegations which make out a case for Malversation against petitioner, nevertheless, absent the element of conversion, theoretically, petitioner may still be held liable for Failure to Render Account by an Accountable Officer if it is shown that the failure to render account was in violation of a law or regulation that requires him to render such an accounting within the prescribed period.

Given, therefore, that some of the essential elements of offenses charged in this case likewise constitute the lesser offenses, then petitioner may plead guilty to such lesser offenses.

Finally, as propounded by petitioner, indeed, he is not an accountable officer in that the nature of his duty as foreman/timekeeper does not permit or require possession or custody of local government funds,29 not to mention that petitioner has already restituted the amount of P18,860.00 involved in this case. Unlike Estradawhich involves a crime punishable by

reclusion perpetua to death,30 and a whopping P25,000,000.00 taken from the public coffers, this case tremendously pales in comparison.

Under the peculiar circumstances of the present case, where gross inequity will result in a discriminatory dispensation of justice, the Court will not hesitate to intervene in order to equalize the imbalance.

WHEREFORE, the petition is GRANTED. The Resolutions dated March 25, 2004 and May 31, 2004 are SETASIDE. The Sandiganbayan is hereby ORDERED to grant petitioner's Motion to Plea Bargain. Let records of this case be REMANDED to the Sandiganbayan for further proceedings in accordance with this Decision.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZAssociate JusticeActing Chairperson

WE CONCUR:

DANTE O. TINGA*

Associate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

RUBEN T. REYESAssociate Justice



MA. ALICIA AUSTRIA-MARTINEZAssociate JusticeActing Chairperson, Third Division


Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision had been reached

in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNOChief Justice