HIRD DIVISION

G.R. No. 210760, January 26, 2015

KYLE ANTHONY ZABALA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO JR., J.:

The Case

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the
reversal of the July 15, 2013 Decision of the Court of Appeals (CA) and its January 8, 2014 Resolution in CA-
G.R. CR No. 34428, entitled People of the Philippines v. Kyle Anthony Zabala. The assailed CA Decision
affirmed the July 7, 2011 Judgment in Crim. Case No. 1676-M-2008 of the Regional Trial Court (RTC),
Branch 22, Malolos City, finding petitioner guilty beyond reasonable doubt of the crime of theft, punishable
under Articles 308 and 309 of the Revised Penal Code. The assailed Resolution, meanwhile, denied
petitioners Motion for Reconsideration. cralawre d

The Facts

An Information was filed against petitioner Kyle Anthony Zabala (Zabala) before the RTC, Branch 22, Malolos
City, charging him with theft, the pertinent text of which states: chanroble svirtuallawlibrary

That on or about the 18th day of June 2007 in San Jose del Monte City, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain and without
the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously
take, steal and carry away with him, one envelope containing cash amounting to SIXTY EIGHT THOUSAND
PESOS (PhP68,000.00) belonging to Randolph V. Alas, to the damage and prejudice of the said owner in the
amount of PhP68,000.00.

Contrary to law.1

When arraigned, petitioner pleaded not guilty. Trial on the merits ensued. During the trial, the prosecution
presented the testimonies of the complaining witness, Randolph Alas (Alas), and petitioners alleged former
girlfriend, Marlyn Pion (Pion). On the other hand, the defense presented the testimonies of petitioner and
of one Muriel John Ganas (Ganas), his alleged companion on the day that the incident took place. 2 chanRoblesvirtualLawlibrary

Version of the Prosecution

The evidence for the prosecution tends to establish that Zabala is a jeepney driver who earns Two Hundred
Pesos (P200) to Four Hundred Pesos (P400) per day on an alternate day basis. Complainant Alas,
meanwhile, works at the Manila City Hall. It is through this job that he was able to save the Sixty-Eight
Thousand Pesos (P68,000) stolen by Zabala.3 Pion, on the other hand, had been the girlfriend of Zabala for
about five months when the incident pertinent to this case occurred.

Alas testified that he and Zabala were neighbors in San Jose Del Monte City, Bulacan. As neighbors, he had
treated Zabala as his kumpare and would often invite the latter to drinking sessions inside his house. At
times, he would also call Zabala to repair his vehicle, because Zabala is also a mechanic. He would allow
Zabala to follow him to his bedroom to get cash whenever spare parts are to be bought for the repair of his
vehicle.4 chanRoble svirtualLawlibrary

Alas further testified that on June 18, 2007, at about 4:00 in the morning, he left his house to go to work.
When he returned from work, at around 11:00 in the evening, he discovered that his money amounting to
Sixty Eight Thousand Pesos (P68,000), which he kept in an envelope inside his closet, was missing. 5 During
that time, there were only five (5) persons living in their house: Alas, his parents, his nine (9) year-old son,
and his aunt. He asked his parents and aunt if they knew where he kept his money, but they did not
know.6chanRoble svirtualLawlibrary
Witness Pion, on the other hand, testified that in the early morning of June 18, 2007, she and Zabala, her
boyfriend at the time, were together at a store owned by the latter, which was six to seven steps away from
the complainants house. She then saw Zabala climb the fence and scale the tree in front of the
complainants house, and enter the house. When he returned, she noticed that he had a bulge in his pocket,
which she later found to be a plentiful sum of money. Zabala then brought her home, and agreed to meet
her again at about 10:00 in the morning. They then went to Greenhills, where Zabala bought two Nokia
mobile phones, which cost about Eight Thousand Five Hundred Pesos (P8,500). 7 chanRoblesvirtualLawlibrary

Version of the Defense

For his defense, Zabala testified that in the early morning of June 17, 2007, he was driving his passenger
jeepney, together with his friend, witness Ganas. They parted ways at around 6:00 in the morning of the
following day. During the whole time they were together, they did not drop by the house of the private
complainant. Neither did he have the time to meet Marilyn Pion, of whom he regarded only as an
acquaintance and not his girlfriend.8 chanRoble svirtualLawlibrary

Witness Ganas corroborated the declaration of Zabala. He testified that he was with petitioner, acting as the
conductor, while petitioner was plying the route of his driven jeepney. He had known petitioner since his
childhood, and was his good friend.9 chanRoblesvirtualLawlibrary

Ruling of the RTC

On July 7, 2011, the RTC rendered its Judgment convicting petitioner of the offense charged. The dispositive
portion of the RTC Decision reads: chanroblesvirtuallawlibrary

WHEREFORE, finding guilt of the accused beyond reasonable doubt, judgment is hereby rendered in Criminal
Case No. 1676-M-2008 CONVICTING accused KYLE ANTHONY ZABALA with the crime of theft defined and
penalized under the provisions of Article 308 and 309 of the Revised Penal Code and is hereby [sentenced]
to suffer imprisonment of, applying the Indeterminate Sentence Law, the MINIMUM penalty of prision
correccional which is 6 years, to a MAXIMUM penalty of prision mayor in its maximum period [of] 8 years.

Accused Zabala is likewise ordered to indemnify and pay the amount of sixty eight thousand pesos
(Php68,000.00) to complaining witness Randolph V. Alas by way of reparation of the damage caused on him.

Furnish both the public prosecutor and defense counsel of this judgment including the accused. 10

Aggrieved by the Judgment, petitioner appealed to the CA, attributing to the lower court the following
errors: (1) there was a grave error in not giving credence to petitioners version; (2) petitioner was
convicted of the crime charged despite the failure of the prosecution to prove his guilt beyond reasonable
doubt; and (3) petitioner cannot be convicted based on circumstantial evidence. cralawre d

Ruling of the CA

In its presently assailed Decision promulgated on July 15, 2013, the CA denied the appeal and affirmed the
decision of the trial court, but with modification as to the penalty to be imposed upon petitioner. The CA
ruled that the prosecution was able to prove beyond reasonable doubt the guilt of the appellant through
circumstantial evidence.

Citing People v. Modesto,11 the CA said: chanroblesvirtuallawlibrary

x x x [T]he doctrine on circumstantial evidence has been recognized as part of the legal tradition when it
was declared that a rule of ancient respectability so molded into tradition is that circumstantial evidence
suffices to convict only if the following requisites concur: first, there is more than one circumstance; second,
the facts from which the inferences are derived are proven; and finally, the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. 12

The CA then found that the series of circumstances present in this case supports a conviction, and
constitutes the basis for a reasonable inference of the existence of the facts thereby sought to be
proved.13chanRoble svirtualLawlibrary

Rejecting the defense of petitioner, the CA ruled that he offered no evidence other than an alibi to exculpate
him from the crime charged. It then cited the rule that alibi is a weak defense, and cannot prevail over the
positive testimony of a truthful witness. 14 chanRoble svirtualLawlibrary

The CA disposed of petitioners appeal as follows: chanroble svirtuallawlibrary

WHEREFORE, premises considered, the appeal is DENIED. The assailed decision is AFFIRMED with
MODIFICATION. As modified, accused-appellant is sentenced to six (6) years of prision correccional as
minimum to twelve (12) years, eight (8) months and eight (8) days of reclusion temporal as maximum.

Accused Zabala is likewise [ordered to] indemnify and pay the amount of Sixty Eight Thousand Pesos
(Php68,000.00) to complaining witness Randolph V. Alas by way of reparation of the damage caused on
him.15

Petitioner moved for reconsideration, but in its assailed Resolution dated January 8, 2014, the CA denied it.

Thus, the present recourse before this Court. Petitioner now argues that there is no sufficient evidence on
record to support his conviction for the charge of theft.

In its Comment, respondent People insists that the prosecution was able to establish petitioners guilt
beyond a reasonable doubt. It argues that the CA correctly ruled that the series of circumstances presented
before the trial court is sufficient to support a conviction. 16 chanRoble svirtualLawlibrary

The Issues

I.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE PETITIONERS CONVICTION BY
GIVING FULL WEIGHT AND CREDENCE TO THE PROSECUTION WITNESSES TESTIMONIES. cralawre d

II.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL
TRIAL COURT DESPITE THE FACT THAT THE EVIDENCE ON RECORD FAILED TO SUPPORT A CONVICTION. 17

In fine, petitioner alleges that the evidence presented before the trial court is insufficient to convict him of
the offense charged. cralawre d

The Courts Ruling

We reverse the findings of the RTC and the CA. We agree with petitioner, and find that the evidence
presented below does not constitute proof beyond a reasonable doubt, sufficient to convict petitioner of
theft. Thus, he must be acquitted.

Discussion

Given that the case for the prosecution is largely based on circumstantial evidence, a short discussion on the
sufficiency of circumstantial evidence to convict an accused is in order.

Circumstantial evidence as basis for conviction

It is a settled rule that circumstantial evidence is sufficient to support a conviction, and that direct evidence
is not always necessary. This is but a recognition of the reality that in certain instances, due to the inherent
attempt to conceal a crime, it is not always possible to obtain direct evidence. In Bacolod v. People, this
Court had the occasion to say: chanroblesvirtuallawlibrary

The lack or absence of direct evidence does not necessarily mean that the guilt of the accused cannot be
proved by evidence other than direct evidence. Direct evidence is not the sole means of establishing guilt
beyond reasonable doubt, because circumstantial evidence, if sufficient, can supplant the absence of direct
evidence. The crime charged may also be proved by circumstantial evidence, sometimes referred to as
indirect or presumptive evidence. Circumstantial evidence has been defined as that which goes to prove a
fact or series of facts other than the facts in issue, which, if proved, may tend by inference to establish a
fact in issue.18

The Rules of Court itself recognizes that circumstantial evidence is sufficient for conviction, under certain
circumstances: chanroblesvirtuallawlibrary

Sec. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: ChanRoblesVirtualawlibrary

(1) There is more than one circumstance;

(2) The facts from which the inferences are derived are proven;
(3) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt.

Moreover, in Lozano v. People, this Court clarified the application of the circumstantial evidence rule: chanroblesvirtuallawlibrary

To sustain a conviction based on circumstantial evidence, it is essential that the circumstantial evidence
presented must constitute an unbroken chain which leads one to a fair and reasonable conclusion
pointing to the accused, to the exclusion of the others, as the guilty person. The circumstantial
evidence must exclude the possibility that some other person has committed the
crime.19 (emphasis in the original)

The prosecution failed to establish, by circumstantial

evidence, that petitioner is guilty of theft

Unfortunately, in the case at bar, this Court finds that the prosecution failed to present sufficient
circumstantial evidence to convict the petitioner of the offense charged. We find that the pieces of evidence
presented before the trial court fail to provide a sufficient combination of circumstances, as to produce a
conviction beyond reasonable doubt.

To recall, the evidence of the prosecution purports to establish the following narrative: first, that the
complaining witness Alas hides P68,000 in cash in his closet inside their house; second, that petitioner is
aware that Alas hides money in his bedroom closet; third, that on the night of the incident, petitioner was
with his then girlfriend, witness Pion; fourth, that petitioner climbed through the fence of Alass house, and
was able to successfully gain entrance to his house; fifth, that petitioner later went out of the house with a
bulge in his pockets; and sixth, that later that day, petitioner and Pion went shopping for a cellphone.

The foregoing narrationbased on the testimonies of the two witnesses of the prosecution, even if given full
faith and credit and considered as established factsfails to establish that petitioner committed the crime of
theft. If at all, it may possibly constitute evidence that petitioner committed an offense, but not necessarily
theft.

In the case before the Court, the evidence presented by the prosecution fails to establish the corpus
delicti of theft. In Tan v. People, this Court said:
chanroble svirtuallawlibrary

Corpus delicti means the body or substance of the crime, and, in its primary sense, refers to the fact that
the crime has been actually committed. The essential elements of theft are (1) the taking of personal
property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the
taking away was done without the consent of the owner; and (5) the taking away is accomplished without
violence or intimidation against persons or force upon things. In theft, corpus delicti has two elements,
namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking. 20

First, nobody saw Zabala enter the bedroom of Alas, where the money amounting to P68,000 was allegedly
kept and hidden. It is interesting to note that while Alas testified that there were other persons living in that
house, i.e. his family members, the prosecution failed to put any of them on the witness stand, to testify
that they saw or heard something out of the ordinary at the time the incident allegedly took place, or to
explain why nobody else was able to notice that the theft took place while Alas was absent. Witness Pion,
meanwhile, merely testified that she saw Zabala scale the fence of Alas house and enter it. She did not
actually see Zabala enter the room of Alas, where the money was hidden.

Second, the evidence presented below is insufficient to determine without a reasonable doubt that the
P68,000 in cash was lost due to felonious taking, and, more importantly, that it was petitioner who
committed the felonious taking. Even if believed in its entirety, the testimony of witness Pion does not show
that when petitioner left the house of Alas, he was carrying the P68,000 in cash which was supposedly lost.
All that Pion saw was the bulge in petitioners pockets. Pions testimony can hardly be considered as
evidence to prove that when petitioner entered the house of Alas, he did so because of his intent to commit
asportation.

Third, Pions testimony fails to establish that Alas pocket indeed contained the stolen money, as she never
actually saw what was inside the pocket of Zabala. While she testified that later that day, they went to buy a
cellphone amounting to P8,500, she failed to testify whether the money that Zabala used in paying for the
cellphone was retrieved from the very same bulging pocket which she saw earlier in the day, which would
have led to the conclusion that Zabalas pocket contained money. Failing this, what is left is the fact that
Pion saw a bulge in Zabalas pocket, and there is no evidence whatsoever to prove that his pocket in fact
was used to hide the money that he allegedly stole. The trial and appellate courts committed error in
accepting as fact that Zabalas pocket contained money, when there is a dearth of evidence to support such
allegation.

And fourth, the rule in circumstantial evidence cases is that the evidence must exclude the possibility that
some other person committed the crime.21 In the case here, however, the prosecution failed to prove, or
even allege, that it was impossible for some other person to have committed the crime of theft against Alas.
The prosecution failed to adduce evidence that at the time the theft was committed, there was no other
person inside the house of Alas, or that no other person could have taken the money from the closet of Alas.
Alas himself admitted that there were other residents in the house, but these persons were never presented
to prove their whereabouts at the time the incident took place. This failure of the prosecution leads the
Court to no other conclusion but that they failed to establish that culpability could only belong to Zabala, and
not to some other person.

Given the foregoing discussion, We find that petitioner was wrongfully convicted of theft. In the absence of
proof beyond a reasonable doubt, the presumption of innocence must be upheld, and thus, petitioner should
be acquitted.

WHEREFORE, this petition is GRANTED. Accordingly, the July 15, 2013 Decision of the Court of Appeals
and its January 8, 2014 Resolution in CA-G.R. CR No. 34428 are hereby REVERSED and SET ASIDE.
Petitioner Kyle Anthony Zabala is ACQUITTED of the offense of theft, on account of reasonable doubt. No
costs.

SO ORDERED. cralawlawlibrary

Peralta, Villarama, Jr., Reyes, and Leonen,* JJ., concur.

ublic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 205180 November 11, 2013

RYAN VIRAY, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

This is a Petition for Review on Certiorari under Rule 45 to reverse and set aside the August 31,
2012 Decision and January 7 2013 Resolution of the Court of Appeals (CA) in CA-G.R. CR No.
1 2
33076, which affirmed with modification the Decision of the Regional Trial Court of Cavite City,
Branch 16 (RTC), in Criminal Case No. 66-07.

The factual backdrop of this case is as follows:

An Information for qualified theft was filed against petitioner Ryan Viray before the RTC, which
reads:

That on or about 19 October 2006, in the City of Cavite, Republic of the Philippines, a place within
the jurisdiction of this Honorable Court, the above-named accused, then being employed as a helper
of ZENAIDA VEDlJA y SOSA with intent to gain and with grave abuse of confidence did then and
there, willfully, unlawfully and feloniously steal, take and carry away several pieces of jewelry, One
(1) Gameboy, One (1) CD player, One (1) Nokia cell phone and a jacket with a total value
of P297,800.00 belonging to the said Zenaida S. Vedua, without the latter s consent and to her
damage and prejudice in the aforestated amount of P297,800.00.

CONTRARY TO LAW. 3

When arraigned, the accused pleaded "not guilty." At the pre-trial, the defense proposed the
4

stipulation, and the prosecution admitted, that the accused was employed as a dog caretaker of
private complainant ZenaidaVedua (Vedua) and was never allowed to enter the house and he
worked daily from 5:00 to 9:00 in the morning. 5

During trial, the prosecution presented evidence to prove the following:

Private complainant Vedua maintains seventy-five (75) dogs at her compound in Caridad, Cavite
City. To assist her in feeding the dogs and cleaning their cages, private complainant employed the
6

accused who would report for work from 6:00 a.m. to 5:30 p.m. On October 19, 2006, at around
7

6:30 in the morning, accused arrived for work. Half an hour later or at 7 oclock, private complainant
left for Batangas. Before leaving, she locked the doors of her house, and left the accused to attend
to her dogs. Later, at around 7:00 in the evening, private complainant arrived home, entering through
the back door of her house. As private complainant was about to remove her earrings, she noticed
that her other earrings worth PhP 25,000 were missing. She then searched for the missing earrings
but could not find them. 8

Thereafter, private complainant also discovered that her jacket inside her closet and her other pieces
of jewelry (rositas) worth PhP 250,000 were also missing. A Gameboy (portable videogame
console), a compact disc player, a Nokia cellular phone and a Nike Air Cap were likewise missing.
The total value of the missing items supposedly amounted to PhP 297,800. Private complainant
immediately checked her premises and discovered that the main doors of her house were
destroyed. A plastic bag was also found on top of her stereo, which was located near the bedroom.
9

The plastic bag contained a t-shirt and a pair of shorts later found to belong to accused.
10

Witness Nimfa Sarad, the laundrywoman of Veduas neighbor, testified seeing Viray at Veduas
house at 6:00 a.m. By 11:00 a.m., she went out on an errand and saw Viray with an unidentified
male companion leaving Veduas house with a big sack. 11

Another witness, Leon Young, who prepares official/business letters for Vedua, testified that he went
to Veduas house between 10:00 and 11:00 am of October 19, 2006 to retrieve a diskette and saw
petitioner with a male companion descending the stairs of Veduas house. He alleged that since he
knew Viray as an employee of private complainant, he simply asked where Vedua was. When he
was told that Vedua was in Batangas, he left and went back three days after, only to be told about
the robbery.12

Prosecution witness Beverly Calagos, Veduas stay-out laundrywoman, testified that on October 19,
2006, she reported for work at 5:00 a.m. Her employer left for Batangas at 7:00 am leaving her and
petitioner Viray to go about their chores. She went home around 8:30 a.m. leaving petitioner alone in
Veduas house. Meanwhile, petitioner never reported for work after that day. 13

For his defense, Viray averred that he did not report for work on the alleged date of the incident as
he was then down with the flu. His mother even called up Vedua at 5:30 a.m. to inform his employer
of his intended absence. Around midnight of October 20, 2006, Vedua called Virays mother to report
the loss of some valuables in her house and alleged that Viray is responsible for it. Petitioners sister
and aunt corroborated his version as regards the fact that he did not go to work on October 19, 2006
and stayed home sick. 14

After the parties rested their respective cases, the trial court rendered a Decision dated December 5,
2009, holding that the offense charged should have been robbery and not qualified theft as there
15

was an actual breaking of the screen door and the main door to gain entry into the house. Similarly,
16

Viray cannot be properly charged with qualified theft since he was not a domestic servant but more
of a laborer paid on a daily basis for feeding the dogs of the complainant. 17

In this light, the trial court found that there is sufficient circumstantial evidence to conclude that Viray
was the one responsible for the taking of valuables belonging to Vedua. Hence, the RTC found
18

petitioner Viray guilty beyond reasonable doubt of robbery and sentenced him, thus:

WHEREFORE, in view of the foregoing considerations, the Court finds the accused RYAN VIRAY
GUILTY beyond reasonable doubt for the crime of robbery and hereby sentences him to suffer the
indeterminate imprisonment ranging from FOUR (4) years, TWO (2) months and ONE (1) day of
prision correccional, as minimum, to EIGHT (8) years of prision mayor, as maximum.

SO ORDERED. 19

Aggrieved, petitioner elevated the case to the CA.

The appellate court found that the Information filed against Viray shows that the prosecution failed to
allege one of the essential elements of the crime of robbery, which is "the use of force upon things."
Thus, to convict him of robbery, a crime not necessarily included in a case of qualified theft, would
violate the constitutional mandate that an accused must be informed of the nature and cause of the
accusation against him. 20

Nonetheless, the CA held that a conviction of the accused for qualified theft is warranted considering
that Viray enjoyed Veduas confidence, being the caretaker of the latters pets. Viray committed a
grave abuse of this confidence when, having access to the outside premises of private complainants
house, he forced open the doors of the same house and stole the latters personal belongings. In its 21

assailed Decision, the appellate court, thus, modified the ruling of the trial court holding that the
accused is liable for the crime of qualified theft.

As to the penalty imposed, considering that there was no independent estimate of the value of the
stolen properties, the CA prescribed the penalty under Article 309(6) in relation to Article 310 of the
22 23

Revised Penal Code (RPC). The dispositive portion of the assailed Decision reads, viz:
24
WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The appealed
Decision of the court a quo is hereby AFFIRMED with MODIFICATION that the accused-appellant be
convicted for the crime of QUALIFIED THEFT and is hereby sentenced to suffer indeterminate
imprisonment of four (4) months and one (1) day of arresto mayor , as minimum, to two (2) years,
four (4) months and one (1) day of prision correccional , as maximum. The appellant is also ordered
to return the pieces of jewelry and other personal belongings taken from private complainant. Should
restitution be no longer possible, the accused appellant must pay the equivalent value of the
unreturned items.

SO ORDERED. 25

When the appellate court, in the adverted Resolution of January 7, 2013, denied his motion for
26

reconsideration, Viray interposed the present petition asserting that the CA committed a reversible
27

error in finding him guilty. Petitioner harps on the supposed inconsistencies of the testimonies of the
prosecution witnesses in advancing his position that the evidence presented against him fall short of
the quantum of evidence necessary to convict him of qualified theft. 28

In the meantime, in its Comment on the present petition, respondent People of the Philippines
29

asserts that the alleged inconsistencies in the testimonies of the prosecution witnesses are so
insignificant and do not affect the credibility and weight of their affirmation that petitioner was at the
crime scene when the crime was committed. In fact, these minor inconsistencies tend to strengthen
30

the testimonies because they discount the possibility that they were fabricated. What is more, so
31

respondent contends, these positive testimonies outweigh petitioners defense of denial and alibi. 32

In resolving the present petition, We must reiterate the hornbook rule that this court is not a trier of
facts, and the factual findings of the trial court, when sustained by the appellate court, are binding in
the absence of any indication that both courts misapprehended any fact that could change the
disposition of the controversy.33

In the present controversy, while the CA modified the decision of the trial court by convicting
petitioner of qualified theft rather than robbery, the facts as found by the court a quo were the same
facts used by the CA in holding that all the elements of qualified theft through grave abuse of
confidence were present. It is not, therefore, incumbent upon this Court to recalibrate the evidence
presented by the parties during trial.

Be that as it may, We find it necessary to modify the conclusion derived by the appellate court from
the given facts regarding the crime for which petitioner must be held accountable.

Art. 308 in relation to Art. 310 of the RPC describes the felony of qualified theft:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but
without violence against, or intimidation of persons nor force upon things, shall take personal
property of another without the latters consent.

xxxx

Art. 310. Qualified Theft. The crime of theft shall be punished by the penalties next higher by two
degrees than those respectively specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of the plantation, fish taken from a
fishpond or fishery or property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance. (Emphasis supplied.)

The crime charged against petitioner is theft qualified by grave abuse of confidence. In this mode of
qualified theft, this Court has stated that the following elements must be satisfied before the accused
may be convicted of the crime charged:

1. Taking of personal property;

2. That the said property belongs to another;

3. That the said taking be done with intent to gain;

4. That it be done without the owners consent;

5. That it be accomplished without the use of violence or intimidation against persons, nor of
force upon things; and

6. That it be done with grave abuse of confidence. 34

As pointed out by both the RTC and the CA, the prosecution had proved the existence of the first
four elements enumerated above beyond reasonable doubt.

First, it was proved that the subjects of the offense were all personal or movable properties,
consisting as they were of jewelry, clothing, cellular phone, a media player and a gaming device.

Second, these properties belong to private complainant Vedua. Third, circumstantial evidence places
petitioner in the scene of the crime during the day of the incident, as numerous witnesses saw him in
Veduas house and his clothes were found inside the house. He was thereafter seen carrying a
heavy-looking sack as he was leaving private complainants house. All these circumstances portray
a chain of events that leads to a fair and reasonable conclusion that petitioner took the personal
properties with intent to gain, especially considering that, fourth, Vedua had not consented to the
removal and/or taking of these properties.

With regard to the fifth and sixths elements, however, the RTC and the CA diverge in their respective
Decisions.

The RTC found that the taking committed by petitioner was not qualified by grave abuse of
confidence, rather it was qualified by the use of force upon things. The trial court held that there was
no confidence reposed by the private complainant on Viray that the latter could have abused. In fact,
Vedua made sure that she locked the door before leaving. Hence, Viray was compelled to use force
to gain entry into Veduas house thereby committing the crime of robbery, not theft.

The CA, on the other hand, opined that the breaking of the screen and the door could not be
appreciated to qualify petitioners crime to robbery as such use of force was not alleged in the
Information. Rather, this breaking of the door, the CA added, is an indication of petitioners abuse of
the confidence given by private complainant. The CA held that "[Viray] enjoyed the confidence of the
private complainant, being the caretaker of the latters pets. He was given access to the outside
premises of private complainants house which he gravely abused when he forced open the doors of
the same house and stole the latters belongings." Committing grave abuse of confidence in the
35

taking of the properties, petitioner was found by the CA to be liable for qualified theft.
This Court is inclined to agree with the CA that the taking committed by petitioner cannot be qualified
by the breaking of the door, as it was not alleged in the Information. However, we disagree from its
finding that the same breaking of the door constitutes the qualifying element of grave abuse of
confidence to sentence petitioner Viray to suffer the penalty for qualified theft. Instead, We are one
with the RTC that private complainant did not repose on Viray "confidence" that the latter could have
abused to commit qualified theft.

The very fact that petitioner "forced open" the main door and screen because he was denied access
to private complainants house negates the presence of such confidence in him by private
complainant. Without ready access to the interior of the house and the properties that were the
subject of the taking, it cannot be said that private complaint had a "firm trust" on petitioner or that
she "relied on his discretion" and that the same trust reposed on him facilitated Virays taking of the
36

personal properties justifying his conviction of qualified theft.

To warrant the conviction and, hence, imposition of the penalty for qualified theft, there must be an
allegation in the information and proof that there existed between the offended party and the
accused such high degree of confidence or that the stolen goods have been entrusted to the
37

custody or vigilance of the accused. In other words, where the accused had never been vested
38

physical access to, or material possession of, the stolen goods, it may not be said that he or she
39

exploited such access or material possession thereby committing such grave abuse of confidence in
taking the property. Thus, in People v. Maglaya, this Court refused to impose the penalty prescribed
40

for qualified theft when the accused was not given material possession or access to the property:

Although appellant had taken advantage of his position in committing the crime aforementioned,

We do not believe he had acted with grave abuse of confidence and can be convicted of qualified
theft, because his employer had never given him the possession of the machines involved in the
present case or allowed him to take hold of them, and it does not appear that the former had any
special confidence in him. Indeed, the delivery of the machines to the prospective customers was
entrusted, not to appellant, but to another employee.

Inasmuch as the aggregate value of the machines stolen by appellant herein is P13,390.00, the
crime committed falls under Art. 308, in relation to the first subdivision of Art.309 of the Revised
Penal Code, which prescribes the penalty of prisin mayor in its minimum and medium periods. No 1wphi1

modifying circumstance having attended the commission of the offense, said penalty should be
meted out in its medium period, or from 7 years, 4 months and 1 day to 8 years and 8 months of
prisin mayor. The penalty imposed in the decision appealed from is below this range. (Emphasis
and underscoring supplied.)

The allegation in the information that the offender is a laborer of the offended party does not by itself,
without more, create the relation of confidence and intimacy required by law for the imposition of the
penalty prescribed for qualified theft. Hence, the conclusion reached by the appellate court that
41

petitioner committed qualified theft because he "enjoyed the confidence of the private complainant,
being the caretaker of the latters pets" is without legal basis. The offended partys very own
admission that the accused was never allowed to enter the house where the stolen properties were
42

kept refutes the existence of the high degree of confidence that the offender could have allegedly
abused by "forcing open the doors of the same house." 43

Without the circumstance of a grave abuse of confidence and considering that the use of force in
breaking the door was not alleged in the Information, petitioner can only be held accountable for the
crime of simple theft under Art. 308 in relation to Art. 309 of the RPC.
As for the penalty, We note with approval the observation made by the appellate court that the
amount of the property taken was not established by an independent and reliable estimate. Thus,
the Court may fix the value of the property taken based on the attendant circumstances of the case
or impose the minimum penalty under Art. 309 of the RPC. In this case, We agree with the
44

observation made by the appellate court in accordance with the rule that "if there is no available
evidence to prove the value of the stolen property or that the prosecution failed to prove it, the
corresponding penalty to be imposed on the accused-appellant should be the minimum penalty
corresponding to theft involving the value of P5.00." Accordingly, We impose the prescribed penalty
45

under Art. 309(6) of the RPC, which is arresto mayor in its minimum and medium periods. The
circumstance of the breaking of the door, even if proven during trial, cannot be considered as a
generic aggravating circumstance as it was not alleged in the Information. Thus, the Court finds that
46

the penalty prescribed should be imposed in its medium period, that is to say, from two (2) months
and one (1) day to three (3) months of arresto mayor.

Lastly, We delete the order for the reparation of the stolen property. Art. 2199 of the Civil Code is
clear that one is entitled to an adequate compensation only for such pecuniary loss suffered by him,
as he has duly proved. Since, as aforesaid, the testimony of the private complainant is not sufficient
to establish the value of the property taken, nor may the courts take judicial notice of such testimony,
We cannot award the reparation of the stolen goods. 47

WHEREFORE, the C Decision of August 31, 2012 in CA-G.R. CR No. 33076 is AFFIRMED with
MODIFICATION. Petitioner Ryan Viray is found GUILTY beyond reasonable doubt of SIMPLE
THEFT and is sentenced to suffer the penalty of imprisonment for two (2) months and one (1) day to
three (3) months of arresto mayor. Further, for want of convincing proof as to the value of the
property stolen, the order for reparation is hereby DELETED.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR: