ARIS1O1LL VALLNZULLA v.

PLOPLL OI 1HL PHILIPPINLS

and HON. COUR1 OI APPLALS
G.R. No. J60J88, 2J June 2007, 1inga, J. (Ln Banc)


or tbe vro.e of a.certaivivg rbetber tbeft i. .v.cetibte of covvi..iov iv tbe frv.tratea .tage, tbe
qve.tiov i., rbev i. tbe crive of tbeft roavcea. 1bere rovta be att bvt certaiv vvavivit, iv tbe o.itiov tbat
tbeft i. roavcea rbev tbere i. aeriratiov of er.ovat roert, ave to it. ta/ivg b, ove ritb ivtevt to gaiv.
1ierea frov tbat er.ectire, it i. ivvateriat to tbe roavct of tbe fetov, tbat tbe offevaer, ovce barivg
covvittea att tbe act. of eecvtiov for tbeft, i. abte or vvabte to freet, ai.o.e of tbe roert, .totev .ivce tbe
aeriratiov frov tbe orver atove ba. atreaa, ev.vea frov .vcb act. of eecvtiov.

Sometime in 1994, petitioner Aristotel Valenzuela Calderon were seen outside the
Super Sale Club, a supermarket within the ShoeMart ,SM, Complex along North LDSA, by
Lorenzo Lago, a security guard who was then manning his post at the open parking area o
the supermarket. le saw Velenzuela hauling a push cart with cases o detergent o the
1ide` brand. Valenzuela unloaded these cases in an open parking space, where Calderon
was waiting. le returned to the supermarket and emerged with more cartons o 1iae
|ttravatic. le unloaded these boxes again to the same area in the open parking space.

Valenzuela then let the parking area and haled a taxi. 1hey loaded the cartons o
detergent inside the taxi and boarded the same. Lago proceeded to stop the taxi as it was
leaing the parking area and asked Valenzuela or the receipt o the merchandise. le and
Calderon reacted to this by leeing on oot, but Lago ired a warning shot to alert his ellow
security guards o the incident. Valenzuela and Calderon were apprehended at the scene, and
the stolen merchandise recoered.

Valenzuela and Calderon were later brought to the Oice o the Quezon City
Prosecutor where they were charged with the crime o thet. 1hey pleaded not guilty during
the arraignment and at the trial, they both claimed that they were just innocent bystanders
within the icinity o the Super Sale Club when they were haled by Lago and his ellow
security guards ater a commotion and brought to the Baler PNP Station.

1he trial court conicted the two o the crime o consummated thet. 1hey both
appealed to the Court o Appeals ,CA, but only Valenzuela iled a brie with the appellate
court. Petitioner Valenzuela argued beore the CA that he should only be conicted o
rustrated thet since at the time he was apprehended, he was neer placed in a position to
reely dispose o the articles stolen. 1he CA rejected this contention and airmed the
judgment o coniction. 1hus, he eleated the case to the Supreme Court ,SC,, praying or
the modiication o his coniction to rustrated thet only.

ISSUL:

\hether or not petitioner Valenzuela is guilty only o rustrated thet


HLLD:

Petition DISMISSLD.

In arguing that he should only be conicted o rustrated thet, Valenzuela cited two
cases decided by the CA, Peote r. Divo and Peote r. tore., wherein the appellate court
modiied the trial court conictions rom consummated to rustrated thet. Both cases were
neer airmed by the SC.

1he Dio and Ilores Cases

Divo was decided by the CA in 1949. 1he accused therein, a drier employed by the
United States Army, had drien his truck into the port area o the South larbor, to unload a
truckload o materials to waiting U.S. Army personnel. Ater he had inished unloading,
accused droe away his truck rom the Port, but as he was approaching a checkpoint o the
military Police, he was stopped by an M.P. who inspected the truck and ound therein three
boxes o army riles. 1he accused later contended that he had been stopped by our men
who had loaded the boxes with the agreement that they were to meet him and retriee the
riles ater he had passed the checkpoint. 1he trial court conicted accused o consummated
thet, but the CA modiied the coniction, holding instead that only rustrated thet had
been committed.

In doing so, the appellate court pointed out that the eident intent o the accused
was to let the boxes o riles pass through the checkpoint, perhaps in the belie that as the
truck had already unloaded its cargo inside the depot, it would be allowed to pass through
the check point without urther inestigation or checking. 1his point was deemed material
and indicatie that the thet had not been ully produced, or the CA pronounced that the
fact determinative of consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less momentary.` Divo thus laid down the theory
that the ability o the actor to reely dispose o the items stolen at the time o apprehension
is determinatie as to whether the thet is consummated or rustrated.

1his theory was applied again by the CA some iteen years later, in tore.. 1he
accused therein, a checker employed by the Luzon Steedoring Company, issued a deliery
receipt or one empty sea an to the truck drier who had loaded the purportedly empty sea
an onto his truck at the terminal o the steedoring company. 1he truck drier proceeded
to show the deliery receipt to the guard on duty at the gate o the terminal. loweer, the
guards insisted on inspecting the an, and discoered that the empty` sea an had actually
contained other merchandise as well. 1he accused was prosecuted or thet qualiied by
abuse o conidence, and ound himsel conicted o the consummated crime. Beore the
CA, the accused argued in the alternatie that he was guilty only o attempted thet, but the
appellate court pointed out that there was no interening act o spontaneous desistance on
the part o the accused that : literally rustrated the thet`. loweer, the CA, explicitly
relying on Divo, did ind that the accused was guilty only o rustrated, and not
consummated, thet.

Under the Statutory Definition of 1heft, Iree Disposal of the Stolen Items is Not a
Constitutive Llement of 1heft

Under Article 308 o the Reised Penal Code ,RPC,, the crime o thet is deined as
ollows: 1het is committed by any person who, with intent to gain but without iolence
against or intimidation o persons nor orce upon things, shall take personal property o
another without the latter`s consent. xxx`

On the ace o the deinition, there is only one operatie act o execution by the
actor inoled in thet-the taking o personal property o another. It is also clear rom the
proision that in order such taking may be qualiied as thet, there must urther be present
the descriptie circumstances that the taking was with intent to gain, without orce upon
things or iolence against or intimidation o persons, and it was without the consent o the
owner o the property.

Reading rom the cases o Divo,toe., a problem emerges. 1he ability o the oender
to reely dispose o the property stolen is not a constitutie element o the crime o thet. It
inds no support or extension in Article 308, whether as a descriptie or operatie element
o thet or as the vev. rea or actv. rev. o the elony. 1o restate what the SC has repeatedly
held: the elements o the crime o thet as proided or in Article 308 o the Reised Penal
Code are: 1., that there be taking o personal property, 2., that said property belongs to
another, 3., that the taking be done with intent to gain, 4., that the taking be done without
the consent o the owner, and 5., that the taking be accomplished without the use o
iolence against or intimidation o persons or orce upon things.

Such actor runs immaterial to the statutory deinition o thet, which is the taking,
with intent to gain, o personal property o another without the latter`s consent. \hile the
Dino,tore. dictum is considerate to the mindset o the oender, the statutory deinition o
thet considers only the perspectie o intent to gain on the part o the oender,
compounded by the depriation o property on the part o the ictim.

lor the purpose o ascertaining whether thet is susceptible o commission in the
rustrated stage, the question is again, when is the crime o thet produced 1here would be
all but certain unanimity in the position that theft is produced when there is deprivation
of personal property due to its taking by one with intent to gain. Viewed rom that
perspectie, it is immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable to freely dispose of the
property stolen since the deprivation from the owner alone has already ensued from
such acts of execution.

Indeed, the SC, ater all, held that unlawul taking, or aoaeraveivto, is deemed
complete rom the moment the oender gains possession o the thing, een i he has no
opportunity to dispose o the same. And long ago, the SC asserted in Peote r. .rita:

x x x |1|he most undamental notion in the crime o thet is the taking o the thing to be
appropriated into the physical power o the thie, which idea is qualiied by other conditions,
such as that the taking must be eected avivo tvcravai and without the consent o the owner,
and it will be here noted that the deinition does not require that the taking should be
eected against the will o the owner but merely that it should be without his consent, a
distinction o no slight importance.

Insoar as the present question is considered, unlawul taking` is most material in
this respect. Unlawul taking, which is the depriation o one`s personal property, is the
element which produces the elony in its consummated stage. At the same time, without
unlawul taking as an act o execution, the oense could only be attempted thet, i at all.

\ith these considerations, under Article 308 o the RPC, theft cannot have a
frustrated stage. 1het can only be attempted or consummated.