Sandiganbayan SB Decisions/SB-17...REPUBLIC OF THE PHILIPPINES Sandiganbayan QUEZON CITY SEVENTH nmSTON PEOPLE OF THE PHILIPPINES, Criminal Case No. SB-17-CRM-Plaintiff, 0063 - versus

REPUBLIC OF THE PHILIPPINES

SandiganbayanQUEZON CITY

SEVENTH nmSTON

PEOPLE OF THE PHILIPPINES, Criminal Case No. SB-17-CRM-Plaintiff, 0063

- versus -

JAIME K. RECIO,

Accused.

Present:

Gomez-Estoesta, J., ChairpersonTrespeses, J., andHidalgo, J.

Promulgated:

DECISION

GOMEZ-ESTOESTA, J.:

An Information^ for violation of Section 3(e) of Republic Act ("RA")No. 3019, as amended,^ was filed with the Court, which read:

That on 30 January 2004 to 8 October 2004, or thereabout, in theCity of Manila, and within this Honorable Court's jurisdiction, publicofficer JAIME K. RECIO, Executive Director III, National ParksDevelopment Committee, City of Manila, while in the performance of hisofficial fimctions, acting with evident bad faith, manifest partiality, or grossinexcusable negligence, did then and there willfully, xinlawfully andcriminally give unwarranted benefits, preference, or advantage to VarianceProtective and Security Agency (Variance), a private corporation, when he

' Records, Vol. /, Information, pp. 1-3.^ Otherwise known as the Anti-Graft and Corrupt Practices Act (1960). Section 3(e) thereof provides:

Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of publicofficers already penalized by existing law, the following shall constitute corrupt practices -of any public officer and are hereby declared to be unlawful:

XXX XXX XXX

(e) Causing any undue injury to any party, including the Government, or giving any privateparty any unwarranted benefits, advantage or preference in the discharge of his officialadministrative or judicial functions through manifest partiality, evident bad faith or grossinexcusable negligence. This provision shall apply to officers and employees of offices orgovernment corporations charged with the grant of licenses or permits or other concessions.

People V. Recio 21 P a g eCriminal Case No. SB-17-CRM-0063

DECISION

signed Disbursement Vouchers facilitating the release of payment toVariance for security services purportedly rendered from 1 January 2004 to15 September 2004, amounting to F7.842.941.60.^ knowing fully well thatVariance was not legally entitled thereto considering that the public biddingand other procurement activities required under Republic Act No. 9184 andits implementing rules and regulations were not conducted prior to theprocurement of Variance's security service for said period, to the damageand prejudice of the government

CONTRARY TO LAW.

The accused Jaime K. Recio voluntarily surrendered and posted a cashbond on January 31,2017."^

Thereafter, a Hold Departure Order^ was issued against the accused onFebruary 1,2017.

On February 28, 2017, the accused filed a Motion for JudicialDetermination of Probable Cause^, On March 7, 2017, the prosecution filedits Comment/Opposition (re: Motion for Judicial Determination of ProbableCausef, In its Resolution dated March 28,2017,® the Court denied the Motion,

Thus, the accused was arraigned on April 19, 2017 and he, with theassistance of counsel, pleaded '*Not Guilty."^

facts:

During pre-trial, the parties entered into the following stipulations of

1. That whenever referred to orally or in writing by the Court• in the course of the proceedings, accused Recio admits his identity as thesame person charged in the Information; and

2. At the time material to the case, accused Recio was a publicofficer holding the position of Executive Director of the National Parks andDevelopment Committee CNPDC").'®

The main issue to be resolved by the Court is whether the accused isguilty of violating Section 3(e) of RANo. 3019.''

Trial ensued.

^ As amended per Decision of the Supreme Court in People, of the Philippines v. The HonorableSandiganbcân (Seventh Division) and Jaime Kison Recio, G.R. No. 240621, July 24, 2019, Records, Vol.7, pp. 157-165^Records, Vol. 2,Order,p. 10.^ Records, Vol. 2, Hold Departure Order, p. 14.^Records, Vol. 2, Motion for Judicial Determination of Probable Cause, pp. 30-43,72."^ Records, Vol. 2, Comment/Opposition (re: Motion for Judicial Determination of Probable Cause), pp. 54-58.

® Records, Vol. 2, Resolution, pp. 109-111.® Records, Vol. 2, Order, p. 132Records, Vol. 2, Joint Stipulation of Facts and Issue, p. 243; Records, Vol. 2, Pre-Trial Order, p. 351." See Records, Vol. 2, Joint Stipulation of Facts and Issue, p. 348; Records, Vol. 2, Pre-Trial Order, p. 424.

c

//

People v.Recio 3|PaecCriminal Case No. SB-17-CRM-0063DECISION

EVTOENCK FOR THE PROSFrTTTTON

On various dates in 2004, NPDC made payments to Variance Protectiveand Security Agency Corporation (the "Variance Security").

The prosecution presented five witnesses, namely: (a) Eduardo C.Villalon, Jr., Division Chief of the NPDC;^^ (b) Dr. Rolando T. Mamaradio,Chief Administrative Officer of NPDC;'^ (c) Dexter T. Espiritu, Audit TeamLeader of the Commission on Audit assigned in NPDC;^"* (d) Atty. R.Epicurus Carlo S. Salcedo, Graft Investigation and Prosecution Officer ofthe Office of the Ombudsman;'^ and (e) Heherson M. Martinez, AccountantoftheNPDC.^^

1. Eduardo C. Villalon, Jr., Division Chief of the NPDC

On direct examination, \fillaIon testified that he has been the DivisionChief of the NPDC since July 2003.*^ As Division Chief, some of his functionsincluded the preparation of plans and programs of the agency {e.g., themaintenance and development of the parks) and designation as a Bids andAwards Committee ("BAC") member.*^ From 2004 to 2010, he wasdesignated a provisional member of the BAC.^^ During this period, the BACdid not conduct a public bidding for the procurement of security services.^®Neither was there any BAC resolution recommending the extension of thecontract for services of Variance Security to the Head of the Procuring Entityor the Executive Director of the NPDC.^' However, he noted that aprocurement was initiated in November 2010.^^

On cross examination, \fillalon clarified that he was the Division Chiefof the Planning Division, which was subsequently named the Planning andManagement Division.^^ The Division was in charge of outsourcing thedevelopment project of the parks.^'* As far as security was concerned, Villalontestified that it was an incidental part of the overall planning of the

Records, Vol. 2, Judicial Affidavit (of Mr. Eduardo C. Villalon, Jr.), pp. 233-240; Records, Vol. 2, Order,p. 431; Transcript of Stenographic Notes ("TSN") dated January 18, 2018, pp. 21-85." Records, Vol. 4, Judicial Affidavit (ofDr. Rolando T Mamaradio), pp. 80-86; Records, Vol. 4, Order, pp.96-97; TSN dated February 26, 2018, pp. 5-16.Records, Vol. 3, Judicial Affidavit (of Mr. Dexter T. Espiritu), pp. 89-572; Records, Vol. 4, Order, pp. 100-

101; TSN dated February 27, 2018, pp. 5-44.Records, Vol. 4, Complaint, pp. 117-123; Records, Vol. 5, Order, pp. 85-86; TSN dated April 3, 2018, pp.

6-59.

Records, Vol. 4, Judicial Affidavit (of Mr. Heherson M. Martinez), pp. 133-372; Records, Vol. 5, Order,pp. 90-91; TSN dated April 4, 2018, pp. 65-34.Records, Vol. 2, Judicial Affidavit (of Mr. Eduardo C. Villalon, Jr.), p. 234.Records, Vol. 2, Judicial Affidavit (of Mr. Eduardo C. Villalon, Jr.), p. 235.Records, Vol. 2, Judicial Affidavit (of Mr. Eduardo C. Villalon, Jr.), p. 235.Records, Vol. 2, Judicial Affidavit (of Mr. Eduardo C. Villalon, Jr.), pp. 235-236.Records, Vol. 2, Judicial Affidavit (ofMr. Eduardo C. Villalon, Jr.), p. 235.

^ Records, Vol. 2, Judicial Affidavit (of Mr. Eduardo C. Villalon, Jr.), pp. 236-237.^ TSN dated January 18, 2018, p. 27.TSN dated January 18, 2018, p. 29. /

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DECISION

management of the park.^^ The main mandate of the management of the parkwas to keep it clean and secure;* hence, it was necessary that security bepresent at all times.^^

In 2003 and 2004, \^llalon stated that they submitted the securityrequirements of the park for the funding of the security aspect, but there wasa Security Unit which prepared the security plan for the park.^^ As part of thesubmission to the Planning Division and insofar as the requirements for thepark security-was concerned, they consolidated the security plan to form partof the submission to the Department of Budget and Management ("DBM" andthe Department of Tourism.^^ \^llalon further stated that during 2003 and2004, diey proposed around 38 or 40 security guards for the maintenance ofthe park.^^

Villalon then testified that he was a member of the BAG from 2002 to

2010.^® As a member of the BAG, he attended seminars on the procurementprocess.^ ̂ The first seminar or training on government procurement that heattended was around 2003 or 2004.^^ In 2004, Villalon could not recallwhether they followed the provisions of Executive Order No. 40^^ or RANo.9184.^"* Gonsidering that his membership to the BAG was in a provisionalcapacity, he could not categorically state that there was something wrong withthe fact that there were security guards and yet no public bidding wasconducted.^^ He then stated that under the Implementing Rules andRegulations ("IRR") of RANo. 9184, a resolution from the BAG signed bymajority of its members is an alternative mode of procurement.^^ Insofar asrecommending the extension of the security services, he testified that, as aprovisional member of the BAG, he had no personal knowledge on whethersuch recommendation should be in writing or may be made orally.^^ Neitherdid he have any personal knowledge whether the Ghairman of the BAG or theother members thereof recommended the extension of the contract to the

Executive Director.^® However, he conceded that the Revised IRR, whichcame out in 2007, required a recommendation from the BAG as an alternativemode of procurement.^^

Villalon then clarified that in 2002, before he became part of the BAG,a public bidding on security services for NPDG was conducted."^® In 2003,

" TSN dated January 18, 2018, p. 29.TSN dated January 18, 2018, p. 31.TSN dated January 18, 2018, p. 30.

^ TSN dated January 18, 2018, p. 30.TSN dated January 18, 2018, p. 30.TSN dated January 18, 2018, pp. 31-32.TSN dated January 18, 2018, p. 32.TSN dated January 18, 2018, p. 33.

33 Dated October 8,2001.

^ Otherwise known as the Government Procurement Reform Act (2003); TSN dated January 18, 2018, pp.34-38.

TSN dated January 18, 2018, pp. 46,54-56.TSN dated January 18, 2018, pp. 49-50.TSN dated January 18, 2018, pp. 50-52.TSN dated January 18, 2018, p. 52.TSN dated January 18, 2018, pp. 62-63. ^TSN dated January 18, 2018, pp. 47-48

iy

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DECISION

while Villalon was part of the BAG, a public bidding was conducted whereinVariance Security won the security services of the NPDC for the period July31 to December 31, 2003."^^ He was part of the evaluation and the process ofprocuring the security services."^^ During that time, it was a standard clause incontracts to provide for the extension or renewal of the contract; however, hewas unsure whether such provision existed in the contract with VarianceSecurity.'^^ Thereafter, when NPDC extended the services of Variance Securityin 2004 with Vlrgenes S. Aguirre as Chairman of the BAG and Chief FinancialOfficer of the NPDC, Villalon testified that there was no public bidding nor arecommendation from the BAC."^

In 2005, an Audit Observation Memorandum ("AOM") was issued bythe Commission on Audit ("COA") stating that in 2004, there was no publicbidding by the resident auditor."*^ However, Executive Director Fajardo wasable to justify the same.'^^ Considering there was no disallowance, Villalontestified that NPDC management was probably able to say that they were ableto justify the non-bidding of the security services."*^

On further cross examination, Villalon testified that in 2004, the NPDCmanaged the following parks: Rizal Park (54 hectares), Paco Park (1 hectare),and Pook ni Maria Makiling (7 hectares)."^®

The COA did not further question the AOM and that it probably foundacceptable the explanation by Fajardo, which relied on the recommendationof NPDC Security Officer Yolito Chua, as regards the unique securityrequirements of the park.'^^ Specifically, the recommendation of Chua for thecontinuous services of the security agency pertained to the performance, dailyrequirements of the park, the satisfactory performance of the security agency,the management, suitability of personnel, and contract administration andmanagement.^®

Villalon then testified that as a member of the BAG, he was satisfied

with the performance of the security agency.^'

Villalon further testified that there are alternative modes of procurementaside from the default public bidding if certain conditions are met.^^ In fact,negotiated procurement can be resorted to under extraordinary circumstancessuch as those pertaining to imminent danger to life or property or when timeis of the essence.^^ Ideally, for services, public bidding should be initiated in

TSN dated January 18, 2018, pp. 43-44,48.TSN dated January 18, 2018, p. 44.TSN dated January 18, 2018, p. 46.

^ TSN dated January 18, 2018, pp. 42-43,48-49, 52-54.TSN dated January 18, 2018, pp. 56-62.TSN dated January 18, 2018, p. 57.TSN dated January 18, 2018, p. 57.TSN dated January 18, 2018, pp. 67,73.TSN dated January 18, 2018, pp. 65-66.TSN dated January 18, 2018, pp. 66,73-74.TSN dated January 18, 2018, p. .67.TSN dated January 18, 2018, p. 68.TSN dated January 18, 2018, pp. 68-69. C' ■ I

People V. Recio 61 P a g cCriminal Case No. SB-17-CRM-0063

DECISION

the last quarter or the last months of the year so that transition for the nextyear would be on the first quarter of the following year.^'^

On re-direct examination, Villalon testified that Chua, who made therecommendation, was not part of the BAG from 2002 to 2010.^^ In addition,the extension of the contract with Variance Security in 2004 was made on amonth-to-month basis by the Executive Director, the accused.^^

2. Dr. Rolando T. Mamaradlo, Chief Administrative Officer of NPDC

On direct examination. Dr. Mamaradlo testified that he has been theChief Administrative Officer of NPDC since January 2017.^^ As ChiefAdministrative Officer, some of his primary functions included overseeing thedifferent sections under the Administrative Division and issuing Certificationsupon request of any government entity or individual.^® He then identified theService Record of the accused, and the parties stipulated on the authenticityand existence of the Service Record.^^

On cross examination. Dr. Mamaradlo confirmed that he was notconnected with NPDC in 2004, and had no knowledge about thetransactions.^® He was merely identifying the Service Record of the accused.®^

3. Dexter T. Espiritu, Audit Team Leader of the Commission on Auditassigned in NPDC

On direct examination, Espiritu testified that he has been the COAAudit Team Leader assigned at the NPDC since August 2016.®^ As COA AuditTeam Leader, his primary functions included auditing of accounts andtransactions of the NPDC, and acting as custodian of all DisbursementVouchers, checks, official receipts, and AOM relative to the transactions ofthe NPDC as turned over to him by the previous Audit Team Leader assignedat NPDC.®^ He identified correspondences between the accused and Carino,®"^

TSN dated January 18, 2018, pp. 71-72.TSN dated January 18. 2018, pp. 75-76.

55 TSN dated January 18, 2018, pp. 76-77.5' Records, Vol. 4, Judicial Affidavit (of Dr. Rolando T. Mamaradlo), pp. 81-82.5® Records, Vol. 4, Judicial Affidavit (of Dr. Rolando T. Mamaradlo), p. 82.5' Records, Vol. 4, Judicial Affidavit (ofDr. Rolando T. Mamaradlo), p. 82; TSN dated February 26, 2018,pp. 8-10,12.55 TSN dated February 26, 2018, pp. 14-15." TSN dated February 26, 20/5, p. 14.

Records, Vol. 3, Judicial Affidavit (of Mr. Dexter T. Espiritu), p. 199.55 Records, Vol. 3, Judicial Affidavit (of Mr. Dexter T. Espiritu), p. 199.5^ Records, Vol. 3, Judicial Affiidavit (of Mr. Dexter T. Espiritu), pp. 199-202; Exhibits D, F, G, H, I, and I,Letters to Carifio.

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DECISION

Disbursement Vouchers, checks,^^ arid Official Receipts^^.

On cross examination, Espiritu confirmed that he was not yet connectedwith COA in 2004 when the transaction involved in the present casehappened.^^ He began as Resident Auditor in August 2016, when he wasassigned to NPDC, and was familiar with the procedures on the conduct ofaudit in the NPDC.^^ In the issuance of an AOM, Espiritu testified that theyaccumulated and summarized audit observations in one AOM7®

In 2005, Espiritu came across an AOM issued by the previous auditor,Artemia Saranillo^^

On further cross examination, Espiritu confirmed that he did not havepersonal knowledge as to who prepared the documents he identified or thecircumstances leading to the preparation of said documents.^^

On further cross examination, Espiritu testified that he did not know theaccused, and was not even familiar with the latter's signature^^ His onlypurpose in coming to court was to identify and present the documents in hiscustody by virtue of the subpoena.^"*

Espiritu then testified that he had one team member under hissupervision.^^ He also confirmed that as Resident Auditor, he -- and not histeam member - was the custodian of the documents.^^ He likewise confirmedthat as Resident Auditor, it was not part of his duties to review previoustransactions of the agency.^^ In fact, absent the subpoena, he would not havebothered to review or go through the documents executed almost ten yearsbefore.^®

Espiritu then confirmed that there was no AOM in the recordsaddressed to the accused.^^ Neither was there a Special Audit conducted in thecase.^® His only participation in the case was when the Ombudsmansubpoenaed him to produce documents, and when the case was already filed

Records, Vol. 3, Judicial Affidavit (of Mr. Dexter T. Espiritu), pp. 202-226; Exhibits L, O, R, U, X. AA,DD, GG, JJ, MM, PP, SS, VV, YY, BBB, EEE, FFF, III, ILL, 000, RRR, UUU, XXX, AAAA, DDDD, GGGG,andJJJJ, Disbursement Vouchers.^ Records, Vol. 3, Judicial Affidavit (of Mr. Dexter T. Espiritu), pp. 226-244; Exhibits M, P, S, V, Y, BB, EE,HH, KK, NN, QQ, TT, WW, ZZ, CCC, GGG, JJJ, MMM, PPP, SSS, VW, YYY, BBBB, EEEE, HHHH, andKKKK, Checks.

Records, Vol. 3, Judicial Affidavit (of Mr. Dexter T. Espiritu), pp. 244-265; Exhibits N, Q, T, W, Z, CO,FF, II, LL, OO, RR, UU, XX, AAA, DDD, HHH, KKK, NNN, QQQ, TTT, WWW, ZZZ, CCCC. FFFF. ////,LLLL, and PPPP, Official Receipts.TSN dated February 27, 2018, p. 23.

® TSN dated February 27, 2018, p. 24.TSN dated February 27, 2018, p. 25.TSN dated February 27, 2018, pp. 26-27.

'2 TSN dated February 27, 20/5, pp. 29-30.TSN dated February 27, 2018, p. 32.TSN dated February 27, 2018, p. 32.TSN dated February 27, 2018, pp. 33-34.TSN dated February 27, 2018, p. 34.TSN dated February 27, 2018, pp. 34-35.TSN dated February 27, 2018, p. 35.TSN dated February 27, 20I8,p.31.TSN dated February 27, 2018, p. 37.

People V. Recio 81P a g eCriminal Case No. SB- i 7-CRM-0063

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with the Coiirt.^^ He was not even connected with NPDC when the case wasbeing investigated by the Office of the Ombudsman in 2015

4. Atty. R. Epicurus Carlo S. Salcedo, Graft Investigation and ProsecutionOfficer of the Office of the Ombudsman

On direct examination, the parties stipulated that Atty. Salcedo was thenominal complainant and that he could identify his Complaint; hence, hisdirect examination was dispensed with.®^

On cross examination, Atty. Salcedo confirmed that he was the teamleader of the fact-finding team which conducted the investigation.^'* The casestemmed from the anonymous request for assistance to conduct a properinvestigation on the alleged irregularity in the procurement of securityservices.®^ Upon evaluation, they conducted a fact finding by obtaining thedocuments from the BAG and, upon evaluating the same, prepared aninvestigation report and made the recommendations which were submitted tothe Director of the Assets Investigation Bureau and reviewed again by theAssistant Ombudsman for Field Investigation Office for the approval ofOmbudsman Conchita Morales.®^ Other than the Complaint,^^ Atty. Salcedodid not execute any other complaint.®^

Atty. Salcedo then testified that the B AC has the primary responsibilityin the conduct of procurement activities.^^ Under RA No. 9184, the heiad ofthe procuring entity is prohibited from becoming a BAG member.^® In the caseof the NPDC, the head is the Executive Director.^*

In the course of the investigation he conducted, Atty. Salcedo testifiedthat he discovered an AOM dated September 5, 2005 addressed to ExecutiveDirector Fajardo.^^ However, he did not come across any memorandum orletter addressed to the accused from the COA.^^

From his examination, Atty. Salcedo found irregularities in 2002 and2003; however, the preliminary investigation yielded the finding that therewere valid public biddings for security services for the period.^'* For 2004 to2010, the Office of the Ombudsman confirmed Atty. Salcedo's allegation of

TSN dated February 27, 2018, pp. 37-38.TSN dated February 27, 2018, p. 38.Records, Vol.5, Order, pp. 85-86; TSN dated April 3, 2018, pp. 6-16.

^ TSN dated April 3, 2018, pp. 18-19.85 TSN dated April 3, 2018, pp. 18-19.^ TSN dated April 3, 2018, p. 18.8' Exhibit A, Complaint.88 TSN dated April 3, 2018, p. 20.89 TSN dated April 3, 2018, pp. 20-27.90 TSN dated April 3, 2018, pp. 28-29.9' TSN dated April 3, 2018, p. 29.92T5V dated April 3, 2018, pp. 31-33.93 TSN dated April 3, 2018, pp. 33-34.94 TSN dated April 3, 2018, p. 34.

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DECISION

irregularities.^^

Atty. Salcedo then identified the contract between NPDC and VarianceSecurity for 2003.^^

He then testified that he was not furnished copies of the counter-affidavits submitted by the respondents in the case during preliminaryinvestigation as he had been assigned to the Iloilo Regional Office beginning2014.^^ He was thus not aware of the defenses of the respondents, and hadonly learned that all the members of the BAG were dropped firom theComplaint; only the executive directors remained to be charged before theCourt.^® He was also not aware that for 2004, the General Appropriations Actwas only reenacted sometime in August and September.^^

Atty. Salcedo then testified that based on their investigation, there wasno bidding conducted for Variance Security in 2003 and its contract wasextended diereafler on a month-to-month basis. However, this finding wasnot affirmed by the Ombudsman. Considering that no public bidding wasconducted, Atty. Salcedo concluded that there was an irregularity even if thereare alternative modes of procurement under RA No. 9184.*®^

Nevertheless, Atty. Salcedo conceded that there are other modes ofprocurement other than public bidding.^®^ In case the agency pursues thesealternative modes of procurement, it is necessary for the BAG to make arecommendation.^®'^ In the case of the 2003 security service contract, Atty.Salcedo could not recall whether there was a provision for the extension ofthe same.^®^ He was also unable to recall if Aguirre, the head of the BAG, wasa signatory in the disbursement vouchers in 2004.^®®

On further cross examination, Atty. Salcedo testified that he could notrecall having encountered any notice of disallowance fi*om the GOA.*®^

5. Heherson M. Martinez, Accountant of the NPDG

On direct examination, Mr. Martinez testified that he has been an

accountant of NPDG since July 2000.^®^ As an accountant, his primary

TSN dated April 3. 2018, pp. 34-35.^ Exhibit 3y Contract for Security Services; TEN dated April 3, 2018, pp. 35-40. Exhibit 3 was not formallyoffered by the prosecution.9' TSN dated April 3, 2018, p. 42.98 TSN dated April 3, 2018, pp. 42-43. f^ TSN dated April 3, 2018,1^^3.'9® TSN dated April 3, 2018, pp. 43-45.1®' TSN dated April 3, 2018, p. 46.'®2 TSN dated April 3. 2018, pp. 46-47.>®3 TSN dated April 3, 2018, p. 47.

TSN dated April 3, 2018,Âi.'®5 TSN dated April 3, 2018, p. 49.>®® TSN dated April 3, 2018, p. 48.'®' TSN dated April 3, 2018, p. 55.'®® Records, Vol. 4, Judicial Affidavit (of Mr. Heherson M. Martinez), p. 183.

People V. Recio 101P a g cCriminal Case No. SB-17-CRM-0063

DECISION

function includes supervising and directing the day-to-day activities of theAccounting Section, and signing Disbursement Vouchers. He thenidentified Disbursement Vouchers^

On cross examination, Martinez testified that he has been connected

with NPDC since 1999.^'^ He was first designated as a Budget Officer, andthen as Accountant from 2000 to 2014.^^^ As an accountant, his otherfunctions included directing and supervising day-to-day activities of theAccounting Section, processing checks, verifying disbursement vouchers,submitting fmancial reports to the oversight government agency, checking ofmonthly payroll, certifying availability of funds, and reporting to managementthe status of allotments and appropriations.'' ̂

As regards the disbursement of funds for Variance Security, Martineztestified that the funds as certified by the Accounting Section came from theGAA of the particular year.^^"^ The budget of NPDC was reenacted in 2004,while the budget from 2005 to 2010 was passed by the Congress.

Martinez then testified that his immediate supervisor, Aguirre, was theChief of the Finance Division and the BAC Chairman from 2004 to 2010.^^^

As far as he knew, the primary function of the BAC in his office was to makethe procurement process of the agency.

Martinez testified that he saw the document which extended the

contract.^ He then testified that he supposed Aguirre, as the BAC Chair,could recommend the procurement process to the head of the procuringentity."^

Martinez also testified that all their original vouchers are forwarded tothe COA, which conducts a post audit. He was, however, unsure whetherthe transactions passed post audit as the COA will not report to them.^^^ In theevent a transaction fails post audit, the COA will issue an observation or letterfrom COA.^^^ In these particular transactions, there were two observationsfrom COA.^^^ While there were no explanations from the BAC, the Executive

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Records, Vol. 4, Judicial Affidavit (of Mr. Heherson M. Martinez), p. 183.Records, Vol. 4, Judicial Affidavit (of Mr. Heherson M. Martinez), pp. 183-216; Exhibits L, O, R, U, X,

AA, DD, GG, JJ, MM, PP, SS, VV, YY, BBB, EEE, FFF, III, ILL, 000, RRR, UUU, XXX, AAAA, DDDD,GGGG, and JJJJ, Disbursement Vouchers.'" dated April 4, 2018, p. 14."2 TSN dated April 4, 2018, p. 15."2 TSN dated April 4, 2018, p. 15.

TSN dated April 4, 2018, pp. 15-16."5 TSN dated April 4, 2018, p. 16."6 TSN dated April 4, 2018, pp. 16-17.^"TSNdatedApril4,2018,ip.n.

TSN dated April 4, 2018, p. 18.TSN dated April 4,. 2018, pp. 20-21.

>20 TSN dated April 4, 2018, p. 21.'21 TSN dated April 4, 2018, p. 21.'22 TSN dated April 4, 2018, p. 21.'23 TSN dated April 4, 2018,p.2\.

People V. Recio 111P a g eCriminal Case No. SB-I7-CRM-0063

DECISION

Director made two comments, which were not acted upon by the COAauditor.

On further cross examination, Martinez testified that 2000 was the first

time he joined the government service.^^^ In 2004, the budget for the GAA ofthe past year was adopted in the succeeding year.^^^ In the second quarter of2004, the DBM issued a circular stating that the 2003 budget was reenactedfor 2004.^^^ Before the issuance of the DBM circular, Martinez testified thatthey were authorized to commit the funds of the government pending theapproval of the budget; hence, pending the approval of the 2004 budget, thesecurity services were continued.

Martinez then testified that one of the duties of the BAG is to

recommend the procurement process. However, in the availment of securityservices for 2004, he testified that he was not privy to the transactionsconducted by the BAC.^^®

In signing vouchers, Martinez testified that his signature thereon meantthat there were funds available and that the payment for a certain procurementwas legal. In fact, in paying Variance Security, Martinez stated that theprocurement was legal when he affixed his signature on the voucher.

Martinez then stated that all their disbursement vouchers were

forwarded to COA for post-audit. COA will then be able to conduct postaudit on the transactions.

For the security services in 2004, Martinez testified that he could notrecall whether COA issued any observations to NPDC.^^^ The AuditMemorandum that was issued was not for the year 2004.^^^ Similarly, therewas no Notice for Disallowance issued for the transactions of2004 regardingsecurity services.

On further cross examination, Martinez attested the completeness andpropriety of the supporting documents, and evaluated all the documentssubmitted in support of the processing of the disbursement vouchers.^^® In

24 TSN dated April 4. 2018, Jjp. 22-23. ^2^ TSN dated April 4, 2018, p. 23.TSN dated April 4, 2018,p.2A. aTSNdatedApril4, 2018,pp.24'25. /

28 TSN dated April 4, 2018, p. 27.2' TSN dated April 4. 2018, p. 27.2® TSN dated April 4, 2018, p. 28.2' TSN dated April 4. 2018, p. 28.TSN dated April 4, 2018,p.2%.

22 TSN dated April 4, 2018, p. 29.TSNdatedApril4, 2018,^.29.

22 TSN dated April 4. 2018, p. 29.26 TSN dated April 4, 2018, p. 29.22 TSN dated April 4, 2018, pp. 29-30.28 TSN dated April 4, 2018, p. 30.

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People V. RecioCriminal Case No. SB-17-CRM-0063

DECISION

121 Pago

processing the disbursement vouchers, all the signatures of the signatoriesindicated in the boxes must be secured.

On re-direct examination, Martinez confirmed that when he signed thedisbursement vouchers, he certified that there were funds available, and thatthe disbursement voucher would not be processed if one of the signatories wasunable to sign.^"*® As regards the release of the check, Martinez clarified thata check cannot be prepared when the signatures of the signatories in thedisbursement voucher is not complete.'"^'

Following the conclusion of the testimonies of its witnesses, theprosecution formally offered the following documentary exhibits on July 2,2018:^^2

A Complaint dated October 7,2013

B Service Record of the accused

C Letter from the accused to Carino dated January 5,2004D Letter from the accused to Carifio dated February 2,2004E Letter from the accused to Carifio dated March 1,2004

F Letter from the accused to Carino dated April 1,2004G Letter from the accused to Carifio dated May 3,2004H Letter from the accused to Carifio dated Jime 1,2004

1 Letter from the accused to Carifio dated July 1,2004

J Letter from the accused to Carifio September 2,2004K Letter from the accused to Carino dated October 1,2004

L Disbursement Voucher No. 081-Gen. Fund dated January 30,2004M Check No. 1677367 dated January 30,2004N Official Receipt No. 3219

O Disbursement Voucher No. 213-Gen. Fimd dated February 2,2004P Check No. 1677670 dated March 3,2004

Q Official Receipt No. 3231

R Disbursement Voucher No. 176-Gen. Fund dated February 18,2004

S Check No. 1677635 dated February 19,2004

T Official Receipt No. 3225

U Disbursement Voucher No. 184-TLA dated February 19,2004

V. Check No. 775210 dated February 24,2004

w Official Receipt No. 3226

X Disbursement Voucher No. 265-Gen. Fund dated March 17,2004

Y Check No. 1677694 dated March 17,2004

Z Official Receipt No. 3232

AA Disbursement Voucher No. 322-TLA dated March 31,2004

BB Check No. 774225 dated March 31,2004

CC Official Receipt No. 3239

DD Disbursement Voucher No. 321 -TLA dated March 31,2004

EE Check No. 775224 dated March 31,2004

FF Official Receipt No. 3240

GG Disbursement Voucher No. 380-TLA dated April 20,2004

"9 TSN dated April 4. 2018, pp. 30-31.TSN dated April 4. 2018, pp. 32-33.TSN dated April 4, 2018, p. 33.Records, Vol. 5, Formal Offer of Documentary Evidence, pp. 243-276. 1

f

People V. RecioCriminal Case No. SB-I7-CRM-0063

DECISION

13 I P a g c

HH Check No. 775234 dated April 20,2004

n Official Receipt No. 3241

jj Disbursement Voucher No. 437-Gen. Fund dated April 30,2004

KK Check No. 1677847 dated April 30,2004

LL Official Receipt No. 3344

MM Disbursement Voucher No. 488-Gen. Fund dated May 18,2004

NN Check No. 1677884 dated May 19,2004

OO Official Receipt No. 3245

PP Disbursement Voucher No. 489-TLA dated May 19,2004

OQ Check No. 775254 dated May 19,2004

RR Official Receipt No. 3246

SS Disbursement Voucher No. 555-Gen. Fund dated June 3,2004

XT Check No. 1677929 dated June 4,2004

UU Official Receipt No. 3247

W Disbursement Voucher No. 597-TLA dated June 17,2004

WW Check No. 775267 dated June, 2004

XX Official Receipt No. 3248

YY Disbursement Voucher No. 603-TLA dated June 18,2004

ZZ Check No. 775269 dated June 21,2004

AAA Official Receipt No. 3249

BBB Disbursement Voucher No. 631-TLA dated June 28,2004

CCC Check No. 775275 dated June 29,2004

DDD Official Receipt No. 3250

£EE Disbursement Voucher No. 641-TLA dated July 1,2004

FFF Disbursement Voucher No. 699-Gen. Fund dated July 19,2004

GGG Check No. 1678030 dated July 19,2004

HHH Official Receipt No. 4403

in Disbursement Voucher No. 701-TLA dated July 19,2004

JJJ Check No. 775287 dated July 19,2004

KKK Official Receipt No. 4402

LLL Disbursement Voucher No. 757-Gen. Fund dated August 4,2004

MMM Check No. 1678068 dated August 4,2004

NNN Official Receipt No. 4404

ooo Disbursement Voucher No. 783-TLA dated August 13,2004

ppp Check No. 775297 dated August 16,2004

000 Official Receipt No. 4407

RRR Disbursement Voucher No. 782-Gen. Fund dated August 13,2004

sss Check No. 1678085 dated August 16,2004TTT Official Receipt No. 4406

uuu Disbursement Voucher No. 836-TLA dated September 2,2004

vw Check No. 775303 dated September 3,2004

www Official Receipt No. 4408

XXX Disbursement Voucher No. 835-Gen. Fund dated September 2,2004

YYY Check No. 1678113 dated September 3,2004

ZZZ Official Receipt No. 4409

AAAA Disbursement Voucher No. 885-TLA dated September 17,2004

BBBB Check No. 036188 dated September 30,2004

CCCC Official Receipt No. 4410DDDD Disbursement Voucher No. 886-TLA dated September 20,2004

EEEE Check No. 775310 dated September 22,2004

FFFF Official Receipt No. 4411

GGGG Disbursement Voucher No. 918-Gen. Fund dated September 30,2004

HHHH Check No. 1678177 dated October 1,2004

mi Official Receipt No. 4412

r./

People V. Recio 141P a g cCriminal Case No. SB-17>CRM-0063

DECISION

JJJJ Disbursement Voucher No. 941-TLA dated October 8,2004

KKKK Check No. 775321 dated October 12,2004

LLLL OflScial Receipt No, 4413

OOOO Check No. 775278 dated July 5,2004

PPPP Ofdcial Receipt No. 4401

00000 Disbursement Voucher dated July 1,2004

On August 1, 2018, the accused filed his Comment/Opposition (ToProsecution's Formal Offer of Evidencey^^. In its Resolutions datedSeptember 6, 2018'"^ and October 11, 2018^"^^, the Court admitted Exhibits"A" to "LLLL," and "0000" to "PPPP". It noted that no document markedas Exhibit "Q^" was offered.

On October 16,2018, the accused filed a Motion for Leave of Court toFile Demurrer to Evidence}^^ The prosecution filed its Comment/Opposition(re: Motion for Leave of Court to File Demurrer to Evidence dated 15September 2018)}^'^ In a Resolution dated November 5, 2018,^"^® the Courtdenied the Motion for lack of merit. Hence, the accused presented evidence inhis defense.

E VTOENCE FOR THE DEFENSE

The defense presented two witnesses, namely: (a) Estelita M. Laraya,Retired Chief of the Administrative Office of the NPDC;^"^^ and (b) Jaime K.Redo, the accused Executive Director of NPDC for 2004.^^®

1. Estelita M. Laraya, Retired Chief of the Administrative OflBce of theNPDC

On direct examination, Laraya testified that she was the ChiefAdministrative Officer of NPDC from 1999 up to her retirement in January2017.^^* As Chief Administrative Officer, she handled various duties andresponsibilities in the Human Resource (Personnel) Section, the Cash Section,and the General Services Section (Procurement and Property), and was alsoin charge of security services, park relations, handling events and permits, andcoordination with different government entities (e.g., MMDA, DSWD,

Records, Vol. 5, Comment/Opposition (To Prosecution's Formal Offer of Evidence), pp. 343-352.Records, Vol. 6, Resolution, pp. 4-11.Records, Vol. 6, Resolution, pp. 31-33.Records, Vol. 6, Motion for Leave of Court to File Demurrer to Evidence, pp. 38-44.Records, Vol. 6, Comment/Opposition (re: Motion for Leave of Court to File Demurrer to Evidence dated

15 September 2018), pp. 57-62.Records, Vol. 6, Resolution, pp. 64-66.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), pp. 71-76; Records, Vol. 6, Order, p. 79; TSN

dated January 21, 2019, pp. 3-24.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 1-23; Records, Vol. 6, Order, p. 159;

TSN dated March 13, 2019, pp. 4-34.Records, Vol. 6, Judicial Affidavit (ofEstelita M. Larcya), p. 72.

People V. Recio IS | P a g eCriminal Case No. SB-17-CRM-0063

DECISION

LGUs) and non-government entities. Her immediate supervisor was theExecutive Director, which position was occupied by the accused in 2004.^^^She described the accused as "hands on," and being able to implement manyimprovements in the agency despite his lack of background in the governmentservice. One such improvement was when the accused became strict onvendors and other undesirable elements in the park, and implemented a "NoVendors" policy. While said vendors staged rallies frequently, the accusedwas not deterred; hence, it was the beginning of a friendlier park to the visitorsas the vendors were removed from inside the parks and there were lesscriminals on record. Laraya likewise described the leadership style ofaccused as "hands on" and transparent as he would always inform the divisionheads of the status of things, and would ask them for input and advice. Onesuch example was how the accused would always apprise Laraya and the otherdivision heads of matters like the budget, how it is delayed.

Laraya testified that the delay in the budget happened every year, thebudget was released quite late all the time, and that the budget of the previousyear was what was usually approved for the current year until the release ofthe GAA.^^^ In 2003, they were aware that even if the last budget would bethe current budget, it was being released through Notice of Cash Allowance.Without that release, they could not go with the projects; hence, they waitedfor the release before they conducted any biddings.^^^

In 2003 and prior years, Laraya testified that they bid out theprocurement of security services. However, due to the late release of thebudget, they either had to end the security services contract immediately orextend the contract on a month-to-month basis until a new bidding wasdone.^^^

In 2004, Laraya testified that they had the same problems as in 2003.*^"^There was a delay in the release of the budget and they were not able to bidout again the security services. When this was discussed by the BAGChairman to the accused, the BAG Chairman informed the accused that theycould not again bid out the security services because there was a delay in therelease of the budget, and national elections would be held hence contracts ofany kind would be on hold.^^^ The BAG Chairman stated that they could

Records, Vol. 6, Judicial Affidavit (o/Estelita M. Laraya), p. 72.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 72.Records, Vol. 6, Judicial Affidavit (ofEstelita M. Laraya), p. 72.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), pp. 72-73.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 73.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 73.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 73.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 73.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 73.Records, Vol. 6, Judicial Affidavit (ofEstelita M Laraya), p. 73.Records, Vol. 6, Judicial Affidavit (ofEstelita M. Laraya), pp. 73-74.Records, Vol. 6,-Judicial Affidavit (of Estelita M. Laraya), p. 74.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 74.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 74.Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), p. 74.


DECISION

terminate the contract, which was not possible as the services were needed.^^^Neither could they pursue with the bidding due to the upcoming nationalelections. What they could do was to continue the security contract on amonth-to-month basis and have the security services bid out if the budgetwould be released and the elections have ended. The accused heeded the

advice of the BAG Chairman to go on a month-to-month basis, and orderedthat the same be relayed to all managers and staff before going on with thecontract.*^®

On cross examination, Laraya testified that she was not a member ofthe BAG in 2003 or 2004, and preferred not to be a member thereof. Shewas neither a budget officer during the time that the contract for securityservices was extended under the accused. She was aware of the advice made

because they had a monthly meeting with the Executive Director and she hadprevious experience as a budget officer. As Chief Administrative Officer,the Executive Director told them what was happening and what they werereceiving.^^"^ They were familiar with the Budget Circular and the GAA, andthe fact that there were delays in the release of their budget. She clarifiedthat they could not bid up the security unless the budget had been approved.^^^The reason that they could not go on with the bidding was because the GAAwas not approved yet.^^^ In 2003, when the budget was released, there wasbidding conducted.^^^

In 2004, the BAG Chairman was Aguirre.^^^ The advice she gave washer personal assessment, which she gave to the accused verbally during theirmeeting in which Laraya was present.*®® Laraya then conceded that theaccused had the discretion to heed or not the advice of the BAG Chairman to

go on the security services on a month-to-month basis.*®*

On re-direct examination, Laraya testified that the Executive Directorhad the discretion to extend on a month-to-month basis the security servicecontract as there was no fund and bidding could not be done.*®^ His instructionwas then to go on a month-to-month basis as they could not curtail all theservices of the security because they were needed for the park which was open24 hours, and then conduct a bidding as soon as the budget comes. *®^ Thus,the options available was either to discontinue the security services or go on

Records, Vol. 6, Judicial Affidavit (ofEstelitq M. Laraya), p. 74.^ Records, Vol. 6, Judicial Affidavit (ofEstelita M. Laraya), p. 74.

Records, Vol. 6, Judicial Affidavit (of Estelita M. Laraya), pp. 74-75.Records, Vol. 6, Judicial Affidavit (ofEstelita M. Laraya), p. 75.TSN dated January 21, 2019, pp. 9-10.TSN dated January 21, 2019, p. 11.TSN dated January 21, 2019, pp. 11-12.TSN dated January 21, 2019, p. 11.TSN dated January 21, 2019, p. 11.TSN dated January 21, 2019, p. 12." TSN dated January 21, 2019, p. 12.

TSN dated January 21, 2019, p. 12.TSN dated January 21, 2019, p. 13.TSN dated January 21, 2019, pp. 12-13.TSN dated Jarmary 21, 2019,pp. 13-14.TSN dated January 21, 2019, p. 15.TSN dated January 21, 2019, p. 15.

/


DECISION

a month-to-month basis. Considering the need for the security services andthe fact that stopping the contract would be disadvantageous, the ExecutiveDirector opted for the month-to-month contract.

Laraya then clarified that even without a budget, the DBM releasedamounts on a monthly basis through the Notice of Cash Allocation, whichamoimts could be used to pay for whatever.

On re-cross examination, Laraya confumed that despite the non-passage of the budget of NPDC, the DBM still made releases to NPDC on amonth-to-month basis, which could have been utilized by the agency for theprocurement of the security services. ̂

Laraya then clarified that it was during a regular meeting on the firstquarter of the year when the security contract was discussed. She stated thatthe date for the release of the budget varied. If it was not approved, theprevious budget would be used.^^® That was the reason why they were reallyfollowing up with the budget people on the release because they had to paythe water and the salaries of their people. Although there was no approvalof the GAA, the DBM released a portion on a monthly basis which they usedto pay their salaries, water, electricity, and security - the things they were inneed of.^^^ They justified that there was a need for the security because thepark is open 24 hours a day and there should be someone to guard the park.^^^The amount for the security needs would be pegged on what was released theprevious year.'^"^

Laraya also testified that she was connected with the NPDC for morethan 44 years.^^^ During that period, there were a few years when they wenton a month-to-month basis extension of security services due to the budgetconstraints.*^^ While it was discretionary for the Executive Director to extendsecurity services, there was a need for him to recommend; otherwise, thedepartment would suffer. As an Administrative Officer, it was included inthe discretionary function of the Executive Director to extend contracts ofsecurity services if there was a need.*^^ Every position they had "and otherfunctions that is needed to be attended."*^^ The month-to-month release of the

DBM was through NCA or SARO.^**** The Executive Director had the

184 tSN dated January 21, 2019, p. 16.

7S!V dated January 21, 2019, p. 16.•8® TSN dated January 21, 2019, pp. 16-17.187 TSf^ dated January 21, 2019, pp. 17-18. /'88 TSN dated January 21, 2019, p. 18. 7189 dated January 21, 2019, p. 18. *

TSN dated January 21, 2019, p. 18.TSN dated January 21, 2019, pp. 18-19.TSN dated January 21, 2019, p. 19.

"3 7SV dated January 21, 2019, pp. 19-20.TSN dated January 21, 2019, p. 20.TSN dated January 21, 2019, p. 21.TSN dated January 21, 2019, pp. 21-22.TSN dated January 21, 2019, p. 22.

">8 TSN dated January 21, 2019, p. 22.TSN dated January 21, 2019, p. 22.

20® TSN dated January 21, 2019, p. 23.


DECISION

discretion to use the funds but the priorities were for the salaries of thepersonnel, the water, the electricity, the security, and some important things.^®*As head of the Administrative Office, she helped prepare the AnnualProcurement Plan for the office, which always included appropriations forsecurity.^®^

2. Jaime K. Recio, the accused Executive Director of NPDC for 2004

On direct examination, the accused testified that he was the ExecutiveDirector of the NPDC from March 18,2002 to October 15,2004, which coversthe period of January to September 2004 subject of this case.^®^ When he wasappointed Executive Director, he held regular meetings monthly with thedifferent division heads so that everyone was informed of what was happeningin the agency.^®'^

The accused testified that he never gave unwarranted benefits toVariance Security.^®^ The security services was an absolute necessity for theproper administration of the parks under NPDC.^®® Due to the securityservices being indispensable, month-to-month extensions were resorted to asthe security services could not be bid out at the time.^®^

In 2004, the accused testified that there was a delay in approving theGAA.^®® During one of their meetings in early 2004, he was informed by theBAG Chairman that they could not bid out the security services for 2004because there was no budget yet due to the delay in passing the GAA.^®® Sincethe agency could not do without the security services, he asked the divisionheads for solutions.^^® Aguirre, the head of the finance division and the BAGChairman at the time, advised that the security contract for 2003 could beextended in 2004 on a month-to-month basis again until the budget wasreleased?^ ̂ Considering the accused was resigned to the fact that the budgetwas delayed but the security services was an absolute necessity for the properadministration of the parks, they resorted to a month-to-month extension withthe express instruction for Aguirre to bid out the contract for security servicesfor 2004 as soon as the budget became available.^^^ His main consideration inresorting to the month-to-month extension was that the security services forthe parks was indispensable, that they resorted to similar month-to-monthextensions the previous year before the budget was approved, and that the

TSN dated January 21, 2019, p. 23.TSN dated January 21, 2019, p. 24.Records, Vol. 1, Judicial Affidavit (OfMr. Jaime Kison Recio), pp. 2-3.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 3-4.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 3.^ Records, Vol. I, Judicial Affidavit (OfMr. Jaime Kison Recio), p. 3.^ Records, Vol. I, Judicial Affidavit (OfMr. Jaime Kison Recio), p. 3.

Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 3.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 3-4.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 4.' Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 4.

Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 4.

;


DECISION

contract for security services for 2003 allowed for extensions.^^^

The accused then clarified that in 2003, the budget was also delayedand he was given the same advice that the contract for security services couldbe extended on a month-to-month basis pending availability of the budget.^^"^Because the security services was an absolute necessity for the properadministration of the parks, they resorted to month-to-month extensions of thecontract for security services with the express instruction to bid it out as soonas the budget became available.^^^ Accordingly, the contract for securityservices was subsequently bid out beginning June 2003 when the budgetbecame available, and the contract was awarded to Variance Security by theend of July 2003.^^^ The Contract for Security Services was probably preparedby the BAG, and presented to the accused for his signature.^^^ The Contractwas only executed in July 31,2003 due to the delay in passing the 2003 GAA,and when the budget was approved and released, the bidding was conductedfrom June to July 2003.^^^ Prior to execution of the Contract, the contract forsecurity services for the previous year was extended on a month-to-monthbasis.^^^ Clause 15 of the Contract allowed for the renewal or extension of thesame upon mutual agreement of the parties.^^® Hence, for 2004, the accusedheeded the advice of Aguirre to extend the contract given that it was providedfor in the Contract for Security Services of2003, and they could not performtheir mandate without the security services and they could not bid it outbecause they had no budget.^^^

The accused then testified that the NPDC managed approximately 57hectares of park ground?^^ They were open areas and security must bemaintained for the public in these areas 24/7.^^^ There were also areas in thepark where expensive equipment were kept like the Rizal Light and SoundShow and the Planetarium.^^"^ Light bulbs from the park lights were alsofrequently stolen or broken by vandals and vagrants.^^^ In addition, Lunetawas the venue for the monthly El Shaddai celebration at the time, which wasattended by thousands of people.^^^ He also imposed a no vendor policy in theparks, which resulted in frequent rallies and pickets by the vendors.^^^ Onereason for imposing a no vendor policy was to curb criminal activity insidethe parks and the presence of vendors contributed to this as they discoveredthat more often than not the individuals involved were the ambulant

Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 4.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 4.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 4-5.Records, Vol. I, Judicial Affidavit (OfMr. Jaime Kison Recio), p. 5. See Exhibit 3, Contract for Security

Services.

Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 5.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 5.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 5-6. «Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 6.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 6. YRecords, Vol. 1, Judicial Affidavit (Of Mr. Jaime KisOn Recio), p. 8. '

^ Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 8^Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 8.

^ Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 8.Records, Vol. 1, Judicial Affidavit (OfMr. Jaime Kison Recio), p. 8.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 8.

People V. Recio 201P a g cCriminal Case No. SB-I7-CRM-0063

DECISION ' ^

vendors.^^® Some of the vendors had also illegally settled inside the park andused utilities, particularly, water from the public comfort rooms and fromleaking pipes which added to the cost of running the parks - something thatcould not be countenanced.^^^ In these instances, the security services was anabsolute necessity to keep the peace and order in the park?^®

The accused then testified that the no vendor policy curbed thecriminality inside the park during the time he was at the NPDC.^^^ They wereable to stop the pilferage of water and, with the repairs he commissioned ofthe water lines inside the park, the NPDC was able to reduce the expenses forutility by half.^^^ His tenure at the NPDC ended in October 15, 2004; hence,he had no more knowledge of what happened in NPDC after that.^^^

The accused also testified that the budget for 2004 was just areenactment of the budget for 2003.^^"^ He was informed by the head of thefinance division of the reenacted budget in the second quarter of2004, aroundApril 2004.^^^ Upon being informed of the reenacted budget, he repeated hisearlier instruction to bid out the security services as she was also the BACChairman.^^^ She said they could not bid it out yet because there was amoratoriuni on bidding due to the coming elections in May?^^ After theelections, the accused learned that he was going to be appointed to the Boardof Directors of PNOC-EC and that his appointment was just waiting for theBoard of PNOC to convene and confirm his appointment.^^^ Accordingly, hestepped down as Executive Director of NPDC on October 15,2004?^^ He wasable to secure his clearance prior to stepping down and was thus surprisedwhen he learned that a complaint against him was filed with the Ombudsmanin 2014.240

Upon learning of the complaint, he filed a Counter-Affidavit.^^^

The accused then reiterated that he never gave imwarranted benefits toVariance Security.^^^ The delay in the budget meant that no bidding could beconducted because there was no budget yet.^^^ On the other hand, NPDC couldnot let go of the security services as it would make it impossible to maintainpeace and safety inside the parks.^^^ Thus, if only to maintain the necessary

Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 8-9.^ Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 8-9.

Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 8.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 9.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 10.Records, Vol. 1, Judicial Affidavit (OfMr. Jaime Kison Recio), p. 10.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), p. 10. See Exhibit I, Couter-Affidavit.Records, Vol. 1, Judicial Affidavit (OfMr. Jaime Kison Recio), pp. 10-11.Records, Vol. 1, Judicial Affidavit (OfMr. Jaime Kison Recio), pp. 10-11.Records, Vol. I, Judicial Affidavit (Of Mr. Jaime Kison Recio), xrp. 10-11. ;7

People V. Recio 211P a g eCriminal CaserNo. SB-17-CRM-0063

DECISION

security complement, they had to resort to the month-to-month extensions.^"^^Security services were also rendered, as evidenced by the Daily Time Recordsand Summaries of the same records corresponding to the period January toSeptember 15,2004 which show the guards on duty and the hours of servicesrendered.^^^ Clearly, there were no unwarranted benefits given and there wasno manifest partiality, bad faith, or gross negligence on his part in the saidextensions.^'^^

On cross examination, the accused testified that during the term ofPresident Gloria Macapagal Arroyo, the DBM website stated that the budgetsfor 2001, 2004, and 2009 were all reenacted.^"*® He also testified that he tookthe advice of BAG Chairman Aguirre to renew the contract with VarianceSecurity on a month-to-month basis, which advice was made orally.^'*^ Hecould not differentiate whether the recommendation of Aguirre was her ownor that of the BAC's because she was the Chief Finance Officer and the BAG

Chairman at the same time, but he took it that she was the expert.^^® It wasexplained to him that since the budget was delayed, bidding it out would notbe possible because one of the requirements for bidding at that time was thatthe agency had to have the complete funding for that particular project?^^When they agreed to renew on a monthly basis and seeing as they had nooption because security was imperative, it was impossible to operate thenational park without security seeing as thousands of people went there everyday.^^^

He then testified that the NPDC paid Variance Security for the securityservices it rendered for the period beginning January 1, 2004 until hisseparation from NPDC.^^^ As Executive Director of NPDC, it was part of hisduty to sign the Disbursement Vouchers and Checks?^'^ Prior to signing acheck, he made sure that the required signatories signed before him.^^^ Thedisbursement vouchers and checks were probably issued to reflect thepayment.^^^

On re-direct examination, the accused confirmed that there was nowritten advice fi'om Aguirre to proceed on a month-to-month basis.^^^ Similarto 2003 when they went throu^ the same motion, they went on a month-to-month extension based on Aguirre's recommendation.^^® Other than the oralrecommendation, Aguirre submitted to the accused a Contract for Extension

/

Records, Voi 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 10-11.Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Redo), pp. 11-20; Exhibits 11 to 37, DTRs and

Summaries.

Records, Vol. 1, Judicial Affidavit (Of Mr. Jaime Kison Recio), pp. 10-11.TSN dated March 13, 2019, p. 16.

2^® TSN dated March 13, 2019, pp. 16-17.250 TSN dated March 13, 2019, p. 17. ♦25» TSN dated March 13, 2019, p. 18.252 TSN dated March 13, 2019, p. 18. /253 TSN dated March 13, 2019, pp. 19-20,26. '254 TSN dated March 13, 2019, p. 19.255 TSN dated March 13, 2019, p. 20.256 TSN dated March 13, 2019, p. 20.252 TSN dated March 13, 2019, pp. 26-28.258 TSN dated March 13, 2019, p. 27.

People V. RecioCriminal Case! No. SB-17-CRM-0063

DECISION

221 P a g e

for him to sign, which he signed.^^^ Aguirre likewise mentioned that the 2003contract contained a provision that allowed both parties to extend, subject toan agreement.^^® He then clarified that at the time, their only choice was eitherto terminate the contract or to extend it on a month-to-month basis.^^^ It was

his first exposure to government, and he relied on the advice of hissubordinate.^^^ He could not argue because she was the BAG Chairman so hedid what he was supposed to do in the exigency of government service.^^^

On re-cross examination, the accused testified /that he was with theNPDC fi*om March 18,2002 to October 15,2004.^^'* Those two years were hisfirst exposure to govemment.^^^ He also testified that in 2003, extensions weremade on the security service.^^^ When he entered, there was an existing servicecontract already which expired in December 2002.^^^ And he relied on therecommendation of Aguirre after he asked her of the options.^^^ At thatparticular point, there were no guidelines as to the month-to-monthextension.^^^ He asked her before if it had been done previously and she said"yes," but he did not ask the procedure.^^®

Following the conclusion of the testimonies of its witnesses, the defenseformally offered the following documentary exhibits on March 25,2019:^^^

L 1; 'V-i'-"- t . "i -j -f ■ .' ,• j'■ i. 1 ■■ ■;;;;■ >^34 j

1 Counter-Affidavit of the accused dated April 21,20142 Service Record of the accused3 Contract for Security Services between NPDC and Variance Security dated

July 31,20034 Philippine Star clipping of Invitation to Apply for Eligibility and to Bid for the

Security Services dated June 1,20035 Memorandum issued by the BAC Chairman dated June 9,20036 Notice of Award dated July 25,20037 Notice to Proceed dated July 31,20039 NPDC Certification dated March 20,2014

10 Desire Letter dated August 17,2004ll-I Summary of Daily Time Records ("DTR") for the period January 1 to 15,200411-J DTRs of employees

12-L Summary of DTRs for the period February 1 to 15,200412-N Certification of Larigel A. Neri dated February 15,200412-0 Memorandum of Neri dated February 15,200412-P Certification of Neri dated February 15,200412-Q Summary Report of Neri dated February 15,200413-1 Summary of DTRs for the period January 16 to 31,2004

259 TSN dated March 13, 2019, pp. 29-30.TSN dated March 13. 2019, p. 31.

26' TSN dated March 13. 2019, p. 31.262 TSN dated March 13. 2019, p. 31.263 TSN dated March 13. 2019, p. 31.264 TSN dated March 13. 2019, p. 32.265 TSN dated March 13. 2019, p. 32.266 TSN dated March 13. 2019, pp. 32-33.262 TSN dated March 13. 2019, p. 33.268 TSN dated March 13. 2019, p. 33.269 TSN dated March 13. 2019, p. 33.^''^TSNdatedMarchl3.2019,pp.33-34.2" Records. Vol. 6, Formal Offer (Of Documentary Evidence for the Accused), pp. 166-188.

/


DECISION

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13-J DTRs of employees

13-K Summary Report of Neri dated January 31,200413-M Certification of Neri dated January 31,2004

14-H Summary of DTRs for the period January 16 to 31,200414-J Summary of DTRs for the period January 1 to 15,200414-K DTRs of employees

14-L DTR of Rene Allan M. Lucero for January 200415-1 Certification of Neri dated February 29,200415-J Summary of DTRs dated February 29,2004

15-K DTRs of employees15-L Memorandum of Neri dated February 29,2004

16-G Summary of DTRs

16-H DTRs of employees

16-J Certification of Neri dated March 15,2004

16-K Summary Report of Neri dated March 15,2004

17-F DTR of Lucero

17-G Summary of DTRs for the period February 1 to 15,2004


17-K Summary of DTRs for the period February 16 to 29,200418-D Summary of DTRs for the period March 16 to 31,2004

18-1 DTRs of employees18-K Certification of Neri dated March 31,2004

18-L DTRs of employees18-M Summary Report of Neri dated March 31,2004

18-N Memorandum of Neri dated March 31,2004

19-J Summary of DTRs for the period April 1 to 14,2004

19-K DTRs of employees

19-M Certification of Neri dated April 15,2004

19-N Summary Report of Neri dated April 15,2004

19-0 DTRs of employees

20-1 Summary of DTRs for the period April 16 to 30,2004

20-J DTRs of employees20-L Certification of Neri dated April 30,2004

20-M Summary Report of Neri dated April 30,2004

20-N Certification of Neri dated April 30,2004

20-O DTRs of employees21-H Summary of DTRs for the period April 16 to 30,2004


21-K Summary of DTRs

21-L DTRs of employees

21-M Summary of DTRs for the period April 1 to 15,2004

21-N DTRs of employees22-J Summary Report of DTRs for the period May 1 to 15,2004


22-M Summary Report of Neri dated May 15,2004

22-N Certification of Neri dated May 15,2004


23-H Summary Report of DTRs for the period May 16 to 31,2004

23-1 DTRs of employees23-K Certification of Neri dated May 31,2004

23-L Summary Report of Neri for the period May 16 to 31,2004

23-M Certification of Neri dated May 31,2004

23-N Summary Report of Neri for the period May 16 to 31,2004

23-0 Memorandum of Neri dated May 31,2004

1}


DECISION

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24-H Summary of DTRs for the period May 16 to 31,2004

24-1 DTRs of employees24.J Summary of DTRs for the period May 16 to 31,2004

24-K DTRs of employees24-M DTRs of employee for the period May 1 to 15,2004

24-N Summary of DTRs for the period May 1 to 15,2004


24-P Summary of DTRs for the period May 1 to 15,2004

24-Q DTRs of employees

25-1 Summary of DTRs for the period June 1 to 15,200425-J DTRs of employees

25-L Certification of Neri dated June 15,2004

25-M Summary Report of Neri dated June 15,2004

25-N Certification of Neri dated June 15,2004


26-H Summary of DTRs for the period Jime 1 to 15,2004


26-J Summary of DTRs26-K DTRs of employees

27-1 Summary of DTRs for the period June 16 to 30,2004


27-L Certification of Neri dated June 30,2004

27-M Summary Report of Neri dated June 30,2004


28-H Summary of DTRs for the period June 16 to 30,2004

28-1 Certification of Neri dated June 30,2004

28-J Summary Report of Neri dated June 30,2004


28-L Summary of DTRs for the period June 16 to 30,2004

28-M DTRs of employees

29-J Summary of DTRs for the period Jxily 1 to 15,2004


29-M Certification of Neri dated July 15,2004

29-N Memorandum of Neri dated July 15,2004

29-0 Summary Report of Neri dated July 15,2004

29-P Certification of Neri dated July 15,2004

29-0 Summary Report of Neri dated July 15,2004

30-1 Summary of DTRs for the period July 16 to 31,2004


30-L Certification of Neri dated Jply 31,2004 .

30-M Certification of Neri dated July 31,2004

30-N Memorandum of Neri dated July 31,2004

30-O Summary Report of Neri dated July 31,2004

31-H Summary of DTRs for the period July 1 to 15,2004


31-J Summary of DTRs for the period July 1 to 15,2004


31-P Summary of DTRs for the period July 16 to 31,2004

31-Q DTRs of employees31-R Summary of DTRs for the period July 16 to 31,2004

31-S DTRs of employees

32-H Summary of DTRs for the period August 1 to 15,2004


32-J Summary of DTRs for the period August 1 to 15,2004


DECISION

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32-K DTRs of employees33-J Summary of DTRs for the period August 1 to 15,200433-K DTRs of employees

33-M Certification of Neri dated August 15,200433-N Summary Report of Neri for the period August 1 to 31,2004

33-0 Certification of Neri dated August 15,200433-P Summary Report of Neri dated August 15,2004


34-H Summary Report of Neri dated August 31,2004


34-K Certification of Neri dated August 31,200434-L Summary Report of Neri dated August 31,200434-M Certification of Neri dated August 31,2004

34-N Summary Report of Neri dated August 16,2004

35-G Summary of DTRs for the period August 16 to 31,2004


35-1 Summary of DTRs for the period August 16 to 31,2004


36-G Summary of DTRs for the period September 1 to 15,2004


36-1 Summary of DTRs for the period September 1 to 15,2004


37-1 Summary of DTRs for the period September 1 to 15,2004


37-L Certification of Neri dated September 15,2004

37-M Summary Report of Neri

37-N Certification of Neri dated September 15,2004

37-0 Summary Report of Neri for the period September 1 to 15,2004

37-P DTRs of employees

The prosecution filed its Comment/Opposition (re: Formal Offer ofDocumentary Evidence for the accused dated 18 March 2019)?^^ In itsResolutions dated May 2, 2019^^^ and June 18, 2019^^"^, the Court admittedExhibits, "1," "2," and "10" to "37," inclusive of sub-markings, while itexcluded Exhibits "3" to "7" and "9." The defense moved for the tender of its

excluded evidence on June 26, 2019,^^^ which the Court granted in itsResolution dated July 3,2019}^^

Thereafter, the parties filed their respective memoranda on July 19,2019.^^^ With the filing of the same, the case was deemed submitted fordecision.

THE PLEA BARGAINING AGREEMENT

Records, Vol. 7, Comment/Opposition (re: Formal Offer of Documentary Evidence for the accused dated18 March 2019), pp. 7-20.^ Records, Vol. 7, Resolution, pp. 22-25.

Records, Vol. 7, Resolution, pp. 58-61.See Records, Vol. 7, Motion (For Tender of Excluded Evidence), pp. 66-68.Records, Vol. 7, Resolution, p. 70.Records, Vol. 7, Memorandum for Accused Jaime Kison Recio, pp. 73-101; Records, Vol. 7,

Memorandum, pp. 102-133.

People V. Recio 261 P a g eCriminal Case No. SB-17-CRM-0063

DECISION

Following the filing of a Motionfor Deferment of Promulgation in viewof a possible plea bargaining agreement, this Court deferred promulgation tomake way for the consideration of the plea-bargaining agreement in thishearing. Accused Recio manifested his intention to plead to the lesser offenseof Violation of Section 7(a) R.A. 6713, or the Code of Conduct and EthicalStandards for Public Officials and Employees.

In open court, accused Recio was apprised of the consequences of aplea bargain, and he signified his understanding of the nature of the charge,and that a plea bargain would result in a conviction for the offense pleaded to.He also understood that such offense carried the consequent penalty ofimprisonment not exceeding five years, a fine not exceeding P5,000.00, orboth, and disqualification to hold public office, pursuant to Section 11(a) ofRA.

The Prosecution, on the other hand, was in full support of the pleabargain notwithstanding that it had already rested its case.

THE COURTIS RULING

Section 2, Rule 116 of the Revised Rules of Court allows for pleabargaining, thus:

Section 2. Plea of guilty to a lesser offense. — At arraigmnent,the accused, with the consent of the offended party and the prosecutor, maybe allowed by the trial court to plead guilty to a lesser offense which isnecessarily included in the offense charged. After arraignment but beforetrial, the accused may still be allowed to plead guilty to said lesser offenseafter withdrawing his plea of not guilty. No amendment of the complaint orinformation is necessary.

Plea bargaining may still be resorted to even after the Prosecution hasrested its case. In the earlier case of People v. VillaramaP^ it was explained:

In the case at bar, the private respondent (accused) moved to pleadguilty to a lesser offense after the prosecution had already rested its case. Insuch situation, jurisprudence has provided the trial court and the Office ofthe Prosecutor with yardstick within which their discretion may be properlyexercised. Thus, in People v. Kayanan (L-39355, May 31, 1978, 83 SCRA437, 450), We held that the rules allow such a plea only when theprosecution does not have sufficient evidence to establish guilt of thecrime charged. In his concurring opinion in People v. Parohinog (G.R. No.L-47462, February 28, 1980, 96 SCRA 373, 377), then Justice Antonio

Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds officeor employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation ofthis Act shall be punished with a fine not exceeding the equivalent of six (6) months' salaiy or suspensionnot exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearingby the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, heshall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishablewith imprisonment not exceeding hve (5) years, or a fine not exceeding five thousand pesos (P5,000), orboth, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office.275 G.R. No. 99287, June 23,1992

People V. Recio 271 P a g eCriminal Case No. SB-I7-CRM-0063

DECISION

Barredo explained clearly and tersely the rationale of the law:

... (A)fter the prosecution had already rested, the only basison which the fiscal and the court could rightfully act in allowing theappellant to charge his former plea ofnot guilty to murder to guiltyto the lesser crime of homicide could be nothing more nothing lessthan the evidence already in the record. The reason for this beingthat Section 4 of Rule 118 (now Section 2, Rule 116) under which aplea for a lesser offense is allowed was not and could not have beenintended as a procedure for compromise, much less bargaining,(boldface supplied; italics in the original)

Further, in Estipona, Jr. v. Lobrigo,^^^ the Supreme Court discussed thenature of a plea-bargaining agreement:

In this jurisdiction, plea bargaining has been defined as "aprocess whereby th^ accused and the prosecution work out a mutuallysatisfactory disposition of the case subject to court approval." There isgive-and-take negotiation common in plea bargaining. The essence ofdie agreement is that both the prosecution and the defense make concessionsto avoid potential losses. Properly administered, plea bargaining is to beencouraged because the chief virtues of the system — speed, economy, andfinality — can benefit the accused, the offended party, the prosecution, andthe court.

Considering the presence of mutuality of advantage, the rules onplea bargaining neither create a right nor take away a vested right. Instead,it operates as a means to implement an existing ri^t by regulating thejudicial process for enforcing rights and duties, recognized by substantivelaw and for justly administering remedy and redress for a disregard orinfraction of them.

The decision to plead guilty is often heavily influenced by thedefendant's appraisal of the prosecution's case against him and by theapparent likelihood of securing leniency should a guilty plea be offered andaccepted. In any case, whether it be to the offense charged or to a lessercrime, a guilty plea is a "serious and sobering occasion" inasmuch as itconstitutes a waiver of the fundamental rights to be presumed innocent untilthe contrary is proved, to be heard by himself and counsel, to meet thewitnesses face to face, to bail (except those charged with offensespunishable by reclusion perpetua when evidence of guilt is strong), to beconvicted by proof beyond reasonable doubt, and not to be compelled to bea witness against himself.

Yet a defendant has no constitutional right to plea bargain. No basicrights are infringed by trying him rather than accepting a plea of guilty; theprosecutor need not do so if he prefers to go to trial. Under the presentRules, the acceptance of an offer to plead guilty is not a demandableright hut depends on the consent of the offended party and theprosecutor, which is a condition precedent to a valid plea of guilty to alesser offense that is necessarily included in the offense charged. Thereason for this is that the prosecutor has full control of the prosecution ofcriminal actions; his duty is to always prosecute the proper offense, not anylesser or graver one, based on what the evidence on hand can sustain.

280 G.R. No. 226679, August 15,2017

t


DECISION

[Courts] normally must defer to prosecutorial decisionsas to whom to prosecute. The reasons for judicial deference arewell known. Prosecutorial charging decisions are rarely simple. Inaddition to assessing the strength and importance of a case,prosecutors also must consider other tangible .and intangible factors,such as government enforcement priorities. Finally, they also mustdecide how best to allocate the scarce resources of a criminal justicesystem that simply cannot accommodate the litigation of everyserious criminal charge. Because these decisions "are not readilysusceptible to the kind of analysis the courts are competent toundertake," we have been "properly hesitant to examine the decisionwhether to prosecute."

The plea is further addressed to the sound discretion of the trialcourt, which may allow the accused to plead guilty to a lesser offensewhich is necessarily included in the offense charged. The word maydenotes an exercise of discretion upon the trial court on whether toallow the accused to make such plea. Trial courts are exhorted to keepin mind that a plea of guilty for a lighter offense than that actuallycharged is not supposed to be allowed as a matter of bargaining orcompromise for the convenience of the accused.

Plea bargaining is allowed during the arraignment, the pre-trial,or even up to the point when the prosecution already rested its case. Asregards plea bargaining during the pre-trial stage, the trial court's exerciseof discretion should not amount to a grave abuse thereof. "Grave abuse ofdiscretion" is a capricious and whimsical exercise of judgment so patent andgross as to amount to an evasion of a positive duty or a virtual refusal toperform a duty enjoined by law, as where the power is exercised in anarbitrary and despotic manner because of passion or hostility; it arises whena court or tribunal violates the Constitution, the law or existingjurisprudence.

If the accused moved to plead guilty to a lesser offensesubsequent to a bail hearing or after the prosecution rested its case, therules allow such a plea only when the prosecution does not havesufficient evidence to establish the guilt of the crime charged. The onlybasis on which the prosecutor and the court could rightfully act in allowingchange in the former plea of not guilty could be nothing more and nothingless than the evidence on record. As soon £is the prosecutor has submitted acomment whether for or against said motion, it behooves the trial court toassiduously study the prosecution's evidence as well as all the circumstancesupon which the accused made his change of plea to the end that the interestsof justice and of the public will be served. The ruling on the motion mustdisclose the strength or weakness of the prosecution's evidence. Absent anyfinding on the weight of the evidence on hand, the judge's acceptance of thedefendant's change of plea is improper and irregular, (emphases supplied)

In this case, accused Recio has been charged with \ôlation of Section3(e) of R.A. 3019, and has pleaded guilty to "Violation of Section 7(a) of R.A.6713, whose elements are:

f


DECISION

291 Page

Section 3(e), RA. 3019 Section 7(a), RA. 6713

(1) The accused is a public officerdischarging official, administrative orjudicial functions or private persons inconspiracy with them;

(1) The accused is a public official oremployee;

(2) The public officer committed theprohibited act during the performanceof his official duty or in relation to hispublic position;

(2) The transaction involved requires theapproval of the public official oremployee's office; and

(3) The public officer acted with manifestpartiality, evident bad faith or grossinexcusable negligence; and

(4) His action caused injury to thegovernment or any private party, orgave unwarranted benefit, advantage orpreference.^"

(3) The public official or employee,directly or indirectly, has financial ormaterial interest in the said transaction.

An offense may be said to necessarily include another when some ofthe essential elements or ingredients of the former as alleged in thecomplaint or information constitute the latter. And vice versa, an offensemay be said to be necessarily included in another when the essentialingredients of the former constitute or form part of those constituting thelatter. In this case, the allegations in the Information for violation of Section3(e) of R.A. 3019 filed against accused Recio are sufficient to hold petitionerliable for violation of Section 7(a) of R.A. 6713.^®^

While it was proven that the services of Variance Protective andSecurity Agency ("Variance") were engaged without the benefit of a publicbidding, and that Variance was paid for its services, thus giving imwarrantedbenefits to Variance,^®^ the Prosecution failed to show how accused Recioacted with manifest partiality, evident bad faith, or gross inexcusablenegligence, in ensuring such award of the contract to Variance.

As defined in Fuentes v. People:^^"^

"Partiality" is synonymous with "bias" which

"excites a disposition to see and report matters as they

are wished for rather than as they are." "Bad faith does

not .simnly connote bad iudfianent or negligence; it

imputes a dishonest purpose or some moral obliquity and

conscious doing of a vprong; a breach of sworn duty

through some motiye or intent or ill will; it partakes of

the nature of fraud." "Gross negligence has been sodefined as negligence characterized by the want of evenslight care, acting or omitting to act in a situation where there

Cf. PCGG V. Ombudsman, G.R. No. 195962, April 18,2018^ Daan v. Sandiganbayan, G.R. Nos. 163972-77, March 28,2008283 Sison V. People, G.R. Nos. 170339 & 170398-403, March 9,2010284 G.R. No. 186421, April 17,2017


DECISION

is a duty to act, not inadvertently but wilfully andintentionally with a conscious indifference to consequencesin so far as other persons may be affected. It is the omissionof that care which even inattentive and thoughtless mennever fail to take on their own property."

In other words, there is "manifest partiality" when there is a clear,notorious, or plain inclination or predilection to favor one side or personrather than another. On the other hand, "evident bad faith" connotes notonly bad judgment but also palpably and patently j&audulent and dishonestpurpose to do moral obliquity or conscious wrongdoing for some perversemotive or ill will. It contemplates a state of mind affirmatively operatingwith furtive design or with some motive or self-interest or ill will or forulterior purposes. (Boldface and underscoring in the original; italicssupplied)

The Prosecution failed to establish a link between accused Recio and

Variance such that its selection could be directly attributable to Recio.Moreover, the haste in renewing Variance's contract was not shown to havebeen done in bad faith, especially considering the crucial nature of the servicesrendered by Variance, i.e., security services. Accused Recio's efforts to retainVariance in the absence of a replacement security agency is also antitheticalto gross inexcusable negligence. It is not difficult to understand how essentialsecurity is to an open park.

The parties have agreed to a mutually satisfactory disposition of thiscase, and submitted it for this Court's approval. Given the foregoing, the pleabargaining agreement is approved. Pursuant to Section 2, Rule 116 of theRevised Rules of Court, no amendment of the Information is necessary.

Consequently, upon re-arraignment of accused Recio for the lesseroffense of Violation of Section 7(a) of R.A. 6713, he entered a plea of guilty.

Let a plea of guilty be thus entered into the records of the case.

WHEREFORE, judgment is hereby rendered finding accused Jaime K.Recio GUILTY beyond reasonable doubt of the lesser offense of Violation ofSection 7(a) of Republic Act No. 6713 and sentencing him to pay a FINE ofFIVE THOUSAND PESOS (P5,000.00).

SO ORDERED.

MA. THERESA DOLORS C. GOMEZ-ESTOESTAAssociate Justice

Chairperson

r

People V. RecioCrimmai Case No. SB-17-CRM-0063

DECISION

WE CONCUR:

311P a g e

f Associate Justice

GEORGINA

Associc

LD. HIDALGO

e Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of theCourt's Division.

MA. THERESA DOLORES C. GOMEZ-ESTOESTA

Chairpershh, Seventh Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution and the Division

Chairman's Attestation, it is hereby certified that the conclusions in the aboveDecision were reached in consultation before the case was assigned to thewriter of the opinion of the Court's Division.

"^FARO M«£4B0T^JE-TAN<Presiding Justu

Documents

Sandiganbayan SB Decisions/SB-17...REPUBLIC OF THE PHILIPPINES Sandiganbayan QUEZON CITY SEVENTH nmSTON PEOPLE OF THE PHILIPPINES, Criminal Case No. SB-17-CRM-Plaintiff, 0063 - versus