G.R. No.
179462 February 12, 2009 He and his family used to rent the ground floor of Nelias house in Pateros. Nelia is his godmother. The adjacent house was
PEDRO C. CONSULTA, Appellant,
vs.
PEOPLE OF THE PHILIPPINES, Appellee,
DECISION
CARPIO MORALES, J.:
The Court of Appeals having, by Decision of April 23, 2007,1 affirmed the December 9, 2004 Decision of the Regional Trial Court
of Makati City, Branch 139 convicting Pedro C. Consulta (appellant) of Robbery with Intimidation of Persons, appellant filed the
present petition.
The accusatory portion of the Information against appellant reads:
That on or about the 7th day of June, 1999, in the City of Makati, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent of gain, and by means of force, violence and intimidation, did then and there
willfully, unlawfully and feloniously take, steal and carry away complainants NELIA R. SILVESTRE gold necklace worth
P3,500.00, belonging to said complainant, to the damage and prejudice of the owner thereof in the aforementioned amount of
P3,500.00.
CONTRARY TO LAW.2 (Emphasis in the original, underscoring supplied)
From the evidence for the prosecution, the following version is gathered:
At about 2:00 oclock in the afternoon of June 7, 1999, private complainant Nelia R. Silvestre (Nelia), together with Maria
Viovicente (Maria) and Veronica Amar (Veronica), boarded a tricycle on their way to Pembo, Makati City. Upon reaching Ambel
Street, appellant and his brother Edwin Consulta (Edwin) blocked the tricycle and under their threats, the driver alighted and
left. Appellant and Edwin at once shouted invectives at Nelia, saying "Putang ina mong matanda ka, walanghiya ka, kapal ng
mukha mo, papatayin ka namin." Appellant added "Putang ina kang matanda ka, wala kang kadala dala, sinabihan na kita na
kahit saan kita matiempuhan, papatayin kita."
Appellant thereafter grabbed Nelias 18K gold necklace with a crucifix pendant which, according to an "alajera" in the province,
was of 18k gold, and which was worth 3,500, kicked the tricycle and left saying "Putang ina kang matanda ka! Kayo mga
nurses lang, anong ipinagmamalaki niyo, mga nurses lang kayo. Kami, marami kaming mga abogado. Hindi niyo kami
maipapakulong kahit kailan!"
Nelia and her companions immediately went to the Pembo barangay hall where they were advised to undergo medical
examination. They, however, repaired to the Police Station, Precinct 8 in Comembo, Makati City and reported the incident.
They then proceeded to Camp Crame where they were advised to return in a few days when any injuries they suffered were
expected to manifest.
Nine days after the incident or on June 16, 1999, Nelia submitted a medico-legal report and gave her statement before a police
investigator.
Denying the charge, appellant branded it as fabricated to spite him and his family in light of the following antecedent facts:
occupied by Nelias parents with whom she often quarreled as to whom the rental payments should be remitted. Because of
the perception of the parents of Nelia that his family was partial towards her, her parents disliked his family. Nelias father
even filed a case for maltreatment against him which was dismissed and, on learning of the maltreatment charge, Nelia
ordered him and his family to move out of their house and filed a case against him for grave threats and another for light
threats which were dismissed or in which he was acquitted.
Appellant went on to claim that despite frequent transfers of residence to avoid Nelia, she would track his whereabouts and
cause scandal.
Appellants witness Darius Pacaa testified that on the date of the alleged robbery, Nelia, together with her two companions,
approached him while he was at Ambel Street in the company of Michael Fontanilla and Jimmy Sembrano, and asked him
(Pacaa) if he knew a bald man who is big/stout with a big tummy and with a sister named Maria. As he replied in the
affirmative, Nelia at once asked him to accompany them to appellants house, to which he acceded. As soon as the group
reached appellants house, appellant, on his (Pacaas) call, emerged and on seeing the group, told them to go away so as not
to cause trouble. Retorting, Nelia uttered "Mga hayop kayo, hindi ko kayo titigilan."
Another defense witness, Thelma Vuesa, corroborated Pacaas account.
The trial court, holding that intent to gain on appellants part "is presumed from the unlawful taking" of the necklace, and
brushing aside appellants denial and claim of harassment, convicted appellant of Robbery, disposing as follows:
WHEREFORE, premises considered, this Court finds accused PEDRO C. CONSULTA guilty beyond reasonable doubt, as principal
of the felony of Robbery with Intimidation of Persons defined and penalized under Article 294, paragraph No. 5, in relation to
Article 293 of the Revised Penal Code and hereby sentences him to suffer the penalty of imprisonment from one (1) year,
seven (7) months and eleven (11) days of arresto mayor, as minimum, to eight (8) years, eight (8) months and one (1) day
of prision mayor, as maximum, applying the Indeterminate Sentence Law, there being no mitigating or aggravating
circumstances which attended the commission of the said crime.
The said accused is further ordered to pay unto the complainant Nelia Silvestre the amount of P3,500.00 representing the
value of her necklace taken by him and to pay the costs of this suit.
SO ORDERED. (Italics in the original, underscoring supplied)
The appellate court affirmed appellants conviction with modification on the penalty.
In his present appeal, appellant raises the following issues:
(1) Whether or not appellant was validly arraigned;
(2) Whether or not appellant was denied due process having been represented by a fake lawyer during arraignment,
pre-trial and presentation of principal witnesses for the prosecution;
(3) Whether or not appellant has committed the crime of which he was charged; and
(4) Whether or not the prosecution was able to prove the guilt of the appellant beyond reasonable doubt.
(Underscoring supplied)
The first two issues, which appellant raised before the appellate court only when he filed his Motion for Reconsideration of Absent intent to gain on the part of appellant, robbery does not lie against him. He is not necessarily scot-free, however.
said courts decision, were resolved in the negative in this wise:
From the pre-existing sour relations between Nelia and her family on one hand, and appellant and family on the other, and
On the matter of accused-appellants claim of having been denied due process, an examination of the records shows that while under the circumstances related above attendant to the incidental encounter of the parties, appellants taking of Nelias
accused-appellant was represented by Atty. Jocelyn P. Reyes, who "seems not a lawyer," during the early stages of trial, the necklace could not have been animated with animus lucrandi. Appellant is, however, just the same, criminally liable.
latter withdrew her appearance with the conformity of the former as early as July 28, 2000 and subsequently, approved by the
RTC in its Order dated August 4, 2000. Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao from the
For "[w]hen there is variance between the offense charged in the complaint or information and that proved, and the offense as
Public Defenders (Attorneys) Office of Makati City. Since the accused-appellant was already represented by a member of the
charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is
Philippine Bar who principally handled his defense, albeit unsuccessfully, then he cannot now be heard to complain about
included in the offense charged, or of the offense charged which is included in the offense proved."8
having been denied of due process.3(Underscoring supplied)

SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved
That appellants first counsel may not have been a member of the bar does not dent the proven fact that appellant prevented
when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the
Nelia and company from proceeding to their destination. Further, appellant was afforded competent representation by the
latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former
Public Attorneys Office during the presentation by the prosecution of the medico-legal officer and during the presentation of
constitute or form part of those constituting the latter.9 (Italics in the original, underscoring supplied)
his evidence. People v. Elesterio4 enlightens:

"As for the circumstance that the defense counsel turned out later to be a non-lawyer, it is observed that he was chosen by the
accused himself and that his representation does not change the fact that Elesterio was undeniablycarrying an unlicensed
firearm when he was arrested. At any rate, he has since been represented by a member of the Philippine bar, who prepared
the petition for habeas corpus and the appellants brief." (Underscoring supplied)
On the third and fourth issues. Article 293 of the Revised Penal Code under which appellant was charged provides:
Grave coercion, like robbery, has violence for one of its elements. Thus Article 286 of the Revised Penal Code provides:
"Art. 286. Grave coercions. The penalty of prision correccional and a fine not exceeding six thousand pesos shall be imposed
upon any person who, without authority of law,
shall, by means of violence, threats or intimidation, prevent another from doing something not prohibited by law or compel
him to do something against his will, whether it be right or wrong.

If the coercion be committed in violation of the exercise of the right of suffrage or for the purpose of compelling another to
Art. 293. Who are guilty of robbery. Any person who, with intent to gain, shall take any personal property belonging to
perform any religious act or to prevent him from exercising such right or from doing such act, the penalty next higher in degree
another, by means of violence against or intimidation of any person, or using force upon anything, shall be guilt of robbery.
shall be imposed." (Italics in the original; underscoring supplied)
(Italics in the original, underscoring supplied)

The difference in robbery and grave coercion lies in the intent in the commission of the act. The motives of the accused are the
Article 294, paragraph 5, under which appellant was penalized provides:
prime criterion:

Art. 294. Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of
"The distinction between the two lines of decisions, the one holding to robbery and the other to coercion, is deemed to be the
violence against or intimidation of any person shall suffer:
intention of the accused. Was the purpose with intent to gain to take the property of another by use of force or intimidation?
Then, conviction for robbery. Was the purpose, without authority of law but still believing himself the owner or the creditor, to
xxxx compel another to do something against his will and to seize property? Then, conviction for coercion under Article 497 of the
Penal Code. The motives of the accused are the prime criterion. And there was no common robber in the present case, but a
man who had fought bitterly for title to his ancestral estate, taking the law into his own hands and attempting to collect what
5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. x x x
he thought was due him. Animus furandi was lacking."10 (Italics in the original; citations omitted; underscoring supplied)
(Citations omitted; italics in the original; underscoring supplied)

The Court finds that by appellants employment of threats, intimidation and violence consisting of, inter alia, uttering of
The elements of robbery are thus: 1) there is a taking of personal property; 2) the personal property belongs to another; 3) the
invectives, driving away of the tricycle driver, and kicking of the tricycle, Nelia was prevented from proceeding to her
taking is with animus lucrandi; and 4) the taking is with violence against or intimidation of persons or with force upon things.
destination.

Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender. It may be
Appellant is thus guilty of grave coercion which carries the penalty of prision correccional and a fine not exceeding 6,000.
presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different
There being no aggravating or mitigating circumstance, the penalty shall be imposed in its medium term. Applying the
intent on the part of the perpetrator.5
Indeterminate Sentence Law, the minimum that may be imposed is anywhere from one (1) month and one (1) day to six (6)
months of arresto mayor, as minimum, and from two (2) years, four (4) months and one (1) day to four (4) years and two (2)
The Court finds that under the above-mentioned circumstances surrounding the incidental encounter of the parties, the taking months of prision correccional, as maximum.
of Nelias necklace does not indicate presence of intent to gain on appellants part. That intent to gain on appellants part is
difficult to appreciate gains light given his undenied claim that his relationship with Nelia is rife with ill-feelings, manifested by,
WHEREFORE, the Court SETS ASIDE the challenged Court of Appeals Decision and another is rendered finding appellant, Pedro
among other things, the filing of complaints6 against him by Nelia and her family which were subsequently dismissed or ended
C. Consulta, GUILTY beyond reasonable doubt of Grave Coercion and sentences him to suffer the indeterminate penalty of
in his acquittal.7
from six (6) months of arresto mayor as minimum, to three (3) years and six (6) months of prision correccional medium as On January 31, 1994, the same incident happened. AAA went inside their room after taking a bath, not knowing that appellant
maximum. was inside. Upon seeing her, appellant snatched the towel around her body and laid her down on the sofa. He kissed her and
touched her private part, while AAA kicked him and scratched his arms. She was able to push him. After which, appellant ran
out the door.
Appellant is further ordered to return the necklace, failing which he is ordered to pay its value, Three Thousand Five Hundred
(3,500) Pesos.
AAA, after that incident, told her older sister about the repeated deeds of the appellant. Afterwards, her sister accompanied
AAA to the police station. On February 3, 1994, three (3) separate complaints for rape were filed against appellant with the
Costs de oficio.
trial court and was raffled in different branches.5

SO ORDERED.
The Complaints read as follows:

G.R. No. 168103 August 3, 2010

Criminal Case No. 94-10812
[Formerly G.R. Nos. 155930-32]

That on or about and sometime during the month of December, 1993 in the Municipality of Antipolo, Province of Rizal,
PEOPLE OF THE PHILIPPINES, Appellee,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and
vs.
there willfully, unlawfully and feloniously by means of force and intimidation, have sexual intercourse with the undersigned
ALEJANDRO RELLOTA Y TADEO, Appellant.
complainant AAA, a minor 12 years of age, against the latter's will and consent.

DECISION
CONTRARY TO LAW.6

PERALTA, J.:
Criminal Case No. 94-10813

Youth and immaturity are generally badges of truth.1

For this Court's consideration is an appeal from theDecision2 dated April 14, 2005 of the Court of Appeals (CA) in CA-G.R. C.R.-
H.C. No. 00117, affirming, with modification, the Decision3 dated August 8, 2002 of the Regional Trial Court (RTC) of Antipolo
City, Branch 73, in Criminal Case Nos. 94-10812, 94-10813 and 94-10814, and finding appellant Alejandro T. Rellota, guilty
beyond reasonable doubt of two (2) counts of consummated rape and one (1) count of attempted rape.
That on or about the month of September, 1993 in the Municipality of Antipolo, Province of Rizal, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and
feloniously by means of force and intimidation, have sexual intercourse with the undersigned complainant AAA, a minor twelve
years of age, against the latter's will and consent.
CONTRARY TO LAW.7

The antecedent facts are the following:

Criminal Case No. 94-10814

AAA,4 the offended party, was born on July 16, 1981 in XXX, Eastern Samar and was a little over twelve (12) years old when the
That on or about the 31st day of January, 1994 in the Municipality of Antipolo, Province of Rizal, Philippines and within the
incidents allegedly happened.
jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and
feloniously by means of force and intimidation, have sexual intercourse with the undersigned complainant AAA, a minor 12
Together with her siblings, BBB and CCC, AAA lived with her aunt, DDD, and the latter's second husband, appellant, in Antipolo years of age, against the latter's will and consent.
City, Rizal from September 1992 to January 1994. Also living with them were two (2) of AAA's cousins. During that period, DDD
and appellant were sending AAA, BBB and CCC to school. At the time the incidents took place, DDD was working overseas.
CONTRARY TO LAW.8

Based on the testimony of AAA, appellant had been kissing her and touching her private parts since September 1993. She
Appellant, with the assistance of counsel de oficio, pleaded not guilty during arraignment.
claimed that appellant raped her several times between September 1993 and January 1994. She narrated that appellant would
usually rape her at night when the other members of the family were either out of the house or asleep. AAA stated that she
resisted the advances of appellant, but was not successful. Appellant, according to her, would usually place a bolo beside him Complainant AAA filed a Motion for the Consolidation9 of the three complaints, which was eventually granted.10
whenever he would rape her. She added that appellant would threaten AAA by telling her that he would kill her brother and
sister and that he would stop sending her to school.
Thereafter, trial ensued.

Around noon of December 20, 1993, AAA took a bath at an artesian well near their house and after bathing, she wrapped her
The prosecutor presented the testimonies of AAA and Dr. Rosaline Onggao, a medico-legal officer.
body with a towel before going inside their house. Appellant followed her to the bedroom, pulled down her towel and laid her
on the bed. He tied her hands with a rope before forcibly inserting his penis inside her vagina. AAA fought back by kicking and
scratching appellant, but the latter was not deterred. Thereafter, appellant untied the hands of AAA and left the room. A few
moments later, appellant returned in the bedroom and raped her again.
On the other hand, the defense presented the testimony of appellant who denied the charges against him. According to him,
he could not think of any reason why the complainant filed the complaints. He also claimed that his sister-in-law, who helped
the complainant file the charges was mad at him for not giving her a loan.
The trial court, in a Decision11 dated August 8, 2002, found appellant guilty beyond reasonable doubt of three (3) counts of
rape as alleged in the complaints, the dispositive portion of which reads:
WHEREFORE, premises considered, accused ALEJANDRO RELLOTA y TADEO is hereby found guilty beyond reasonable doubt
and is hereby sentenced to suffer the penalty of Reclusion Perpetua for each count in Criminal Case Nos. 94-10812, 10813 and
10814.
The accused is further ordered to indemnify [AAA] in the amount of 50,000.00 for each of the three (3) Criminal Cases, or a
total of 150,000.00.
SO ORDERED.12
In not imposing the penalty of death, the trial court reasoned out that AAA was already over 12 years old at the time the
incidents happened and that although she was below 18 years old, the relationship of AAA and the appellant had not been
sufficiently established as the marriage between AAA's aunt and the appellant was not supported by any documentary
evidence.
A Notice of Appeal was filed and this Court accepted13 the appeal on July 16, 2003. However, in a Resolution14dated September
6, 2004, this Court transferred the case to the CA in conformity with People of the Philippines v. Efren Mateo y
Garcia,15 modifying the pertinent provisions of the Revised Rules on Criminal Procedure, more particularly Sections 3 and 10 of
Rule 122, Section 13 of Rule 124, Section 3 of Rule 125 and any other rule insofar as they provide for direct appeals from the
Regional Trial Courts to this Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, as well
as the Resolution of this Court en banc, dated September 19, 1995, in Internal Rules of the Supreme Court in cases similarly
involving the death penalty, pursuant to the Court's power to promulgate rules of procedure in all courts under Article VIII,
Section 5 of the Constitution, and allowing an intermediate review by the Court of Appeals before such cases are elevated to
this Court.
In a Decision16 dated April 14, 2005, the CA affirmed, with modification, the Decision of the trial court, disposing it as follows:
WHEREFORE, the Decision appealed from is hereby AFFIRMED in so far as appellant is found GUILTY of two (2) counts of
consummated rape and sentenced to reclusion perpetua for each count in Criminal Case Nos. 94-10812 and 94-10813. The
Decision is however MODIFIED as follows:
1. In Criminal Case No. 94-10814, appellant is found GUILTY beyond reasonable doubt of the crime of attempted
rape and is sentenced to an indeterminate penalty of SIX (6) years of prision correccional, as minimum, to TEN (10)
YEARS of prision mayor, as maximum. He is also ordered to pay AAA the amounts of 30,000.00 as civil indemnity
and 15,000.00 as moral damages.
2. In Criminal Case Nos. 94-10812 and 94-10813, appellant is ordered to pay AAA the amount of 50,000.00 as
moral damages for each count in addition to the amount of 50,000.00 already imposed as civil indemnity for each
count.
SO ORDERED.
Hence, the present appeal.
In his Brief17 dated October 24, 2003, appellant assigned this lone error:
THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN [APPELLANT] DESPITE THE FACT THAT AAA'S TESTIMONY WAS
INCONSISTENT AND FULL OF FALSEHOODS.
Appellant claims that it was impossible for him to have raped AAA in September 1993 because his wife only left for Jeddah on
October 21, 1993. He points out that AAA herself testified that he only kissed her, touched her breast and private parts, but
failed to mention that he inserted his penis to her vagina. He also denied raping AAA on January 31, 1994 and December 20,
1993. He further claims that the filing of the criminal charges were instigated by AAA's aunt for his refusal to lend her money.
In short, appellant assails the credibility of AAA's testimony as shown by its inconsistencies and falsehoods.
On the other hand, the Office of the Solicitor General (OSG), in its Brief18 dated November 27, 2003, averred that the
prosecution was able to satisfactorily prove that appellant raped the offended party in September and December 1993. It
further stated that appellant used his moral ascendancy over the victim in having carnal knowledge of her against her will. The
OSG also argued that the medical report bolsters the victim's claim that she was repeatedly raped by appellant and that the
latter's defense of denial is weak and deserves scant consideration.
In agreement with the CA Decision, the OSG posited that there is inadequate proof that the offended party was actually raped
on January 31, 1994 and that the penalties imposed by the trial court should be adjusted in accordance with the crimes proved.
After a careful study of the arguments presented by both parties, this Court finds the appeal bereft of any merit.
A rape charge is a serious matter with pernicious consequences both for the appellant and the complainant; hence, utmost
care must be taken in the review of a decision involving conviction of rape.19 Thus, in the disposition and review of rape cases,
the Court is guided by these principles: first, the prosecution has to show the guilt of the accused by proof beyond reasonable
doubt or that degree of proof that, to an unprejudiced mind, produces conviction; second, the evidence for the prosecution
must stand or fall on its own merits and cannot draw strength from the weakness of the evidence of the defense; third, unless
there are special reasons, the findings of trial courts, especially regarding the credibility of witnesses, are entitled to great
respect and will not be disturbed on appeal; fourth, an accusation of rape can be made with facility; it is difficult to prove but
more difficult for the person accused, though innocent, to disprove; and, fifth, in view of the intrinsic nature of the crime of
rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme
caution.20
Appellant insists that the trial court erred in giving credence to the testimony of AAA. He claims that he could not have possibly
raped AAA in September 1993 because, first, his wife was still in the Philippines and left for Jeddah, Saudi Arabia only on
October 21, 1993; and second, based on the testimony of AAA, appellant merely kissed and touched her breasts and private
parts, but never did she mention that he inserted his penis into her vagina.
The contentions are devoid of merit.
The claim of appellant that he could not have raped AAA because his wife was still in the country during the alleged period
when the rape was committed is so flimsy that it does not deserve even the slightest consideration from this Court. It has been
oft said that lust is no respecter of time or place. Neither the crampness of the room, nor the presence of other people therein,
nor the high risk of being caught, has been held sufficient and effective obstacle to deter the commission of rape.21 There have
been too many instances when rape was committed under circumstances as indiscreet and audacious as a room full of family
members sleeping side by side.22 There is no rule that a woman can only be raped in seclusion.23
As to the contention of appellant that the testimony of AAA was barren of any statement that the former's penis was inserted
in the latter's vagina is not quite accurate. AAA categorically stated during her testimony that she was raped, thus:
Q: On December 20, 1993, at around 12:00 o'clock noon, do you remember where were you? A: He left.

A: I was at the artisan well. Q: You said he placed his penis inside your vagina, will you tell how long was his penis inside your vagina?

Q: Where is that artisan well located? A: One minute.

A: Near the house of Alejandro Rellota. Q: When he placed his penis inside your vagina for around one minute, what, if any, did you feel when he inserted
his penis?
Q: What were you doing in the vicinity of the arisan well?
A: I felt painful. (sic)
A: I was taking a bath.
Q: You said Alejandro Rellota pulled your towel, when he did that, what did you do?
Q: What time did you start taking a bath?
A: I resisted.
A: I started taking a bath about 12:00 o'clock and I finished at around 1:00 o'clock.
Q: What exactly did you do when you resisted?
Q: After taking a bath, what did you do next?
A: I tried to avoid him.
A: I went inside the house.
Q: When you said your hands were tied while the accused Alejandro Rellota was doing this, what were you doing?
Q: When you went inside the house, what happened next?
A: I pinched his hands and tried to take the rope off my hands.
A: I covered my body with a towel and Alejandro Rellota pulled it.
Q: Were you successful in taking the rope?
Q: Where was Alejandro Rellota at that time?
A: No.
A: He went inside the room.
Q: At the time Alejandro Rellota was doing this while he was tying your hands, what was he wearing at that time?
Q: Before he went inside the house, where was Alejandro Rellota, if you know?
A: Short pants and t-shirt.
A: He came from the other room.
Q: You said Alejandro Rellota placed his penis inside your vagina while you were lying down and tied your hands.
When Alejandro Rellota placed his penis inside your vagina, what did he do to his clothes?
Q: You said once inside the house, Alejandro Rellota pulled your towel, what happened after that?

A: He took it off.24
A: He raped me.

xxxx
Q: When you said that Alejandro Rellota raped you, what did Alejandro Rellota do exactly to you?

Q: You said when being asked by the Honorable Court that you were wearing t-shirt and short, you also mentioned
A: He laid me on the bed and he tied my hands.
that at the time you entered the house after having taken a bath that you were only wearing a towel. Can you
explain when for the first time did you wear that t-shirt and shorts in December?
Q: After he tied your hands, what did he do next?
A: Because when he pulled the towel, he pulled me to the bed, he embraced me and he left and then I immediately
A: He forced me and inserted his penis inside my vagina. wear (sic) my panty and t-shirt then he returned for the second time.

Q: After he placed his penis inside your vagina, what did he do next? Q: When he returned, what did he do?
 A: He repeated his acts.
COURT: You mean to say you were raped twice in December 1993?
A: Yes, Your Honor.
PUBLIC PROSECUTOR: After he did that again, what happened afterwards?
A: The incident happened inside his room and after the incident, he ordered me to go out of his room and I went to
my bed and sleep. (sic)25
xxxx
Q: Can you please tell the Honorable Court on December 20, how many times did he rape you?
A: Twice.
Q: First time when after he pulled your towel?
A: Yes.
Q: When he pulled off your towel, you were not wearing anything?
A: Yes, my body was wrapped with towel only.
Q: The second time he raped you, you were wearing some clothes?
A: Yes.26
This Court is also not swayed by the claim of appellant that the testimony of AAA is full of inconsistencies and falsehoods. As
accurately propounded by the CA:
Appellant further contends that the testimony of AAA regarding the rape that took place on December 20, 1993 is full of lies
and falsehood. He points out as lie and inconsistent AAA's statement that he removed her shorts and panty when she was
raped on December 20, 1993. He argues that this could not have been possible because, as earlier testified to by AAA, she
merely wrapped her body with a towel having just taken a bath. He also points out as lie and inconsistent AAA's statement that
after he pulled her to the bed, raped her and then left, she immediately put on her panty and t-shirt. He argues that such
putting on her panty and t-shirt could not have been also possible because, as testified to by her, her hands were tied with a
rope.
Again, the contentions are without merit.
In her testimony, AAA narrated that she was raped twice on December 20, 1993: the first time was when she came from her
bath, wrapped only with a towel and appellant pulled her to the bed, tied her hands and ravished her, and the second time was
when she had already dressed up and appellant returned to the room to rape her again. When AAA testified that appellant
removed her shorts and panty before raping her, she was referring to the second time she was raped on that day. Hence, her
statements were not inconsistent. There was a lapse of time between the first and the second rape. Likewise, when AAA
testified that she put on her t-shirt and panty, she was referring to the first time of the rape where, after ravishing her,
appellant untied her hands and left only to return to rape her once more. There was enough time for AAA to dress up.27
Nevertheless, the said inconsistencies pointed out by appellant are minor ones which do not affect the credibility of AAA nor
erase the fact that the latter was raped. The inconsistencies are trivial and forgivable, since a victim of rape cannot possibly
give an exacting detail for each of the previous incidents, since these may just be but mere fragments of a prolonged and
continuing nightmare, a calvary she might even be struggling to forget.28 As this Court pronounced in People v. Delos Reyes:29
It is established jurisprudence that testimony must be considered and calibrated in its entirety inclusive and not by truncated
or isolated passages thereof. Due consideration must be accorded to all the questions propounded to the witness and her
answers thereto. The whole impression or effect of what had been said or done must be considered and not individual words
or phrases alone. Moreover, rape is a painful experience which is oftentimes not remembered in detail. It causes deep
psychological wounds, often forcing the victims conscience or subconscious to forget the traumatic experience, and casts a
stigma upon the victim, scarring her psyche for life. A rape victim cannot thus be expected to keep an accurate account and
remember every ugly detail of the appalling and horrifying outrage perpetrated on her especially since she might in fact have
been trying not to remember them. Rape victims do not cherish in their memories an accurate account of when and how, and
the number of times they were violated. Error-free testimony cannot be expected most especially when a young victim of rape
is recounting details of a harrowing experience, one which even an adult would like to bury in oblivion deep in the recesses of
her mind, never to be resurrected. Moreover, a rape victim testifying in the presence of strangers, face to face with her
tormentor and being cross-examined by his hostile and intimidating lawyer would be benumbed with tension and nervousness
and this can affect the accuracy of her testimony. Often, the answers to long-winded and at times misleading questions
propounded to her are not responsive. However, considering her youth and her traumatic experience, ample margin of error
and understanding should be accorded to a young victim of a vicious crime like rape.30
Anent the other instances that appellant was able to force himself and had carnal knowledge of AAA, the latter testified as
follows:
FISCAL CLUTARIO: Miss witness, you stated during your last testimony on September 22, 1994 that you were raped
in December 1993 by the accused. Before December 1993, what if anything did the accused do to you?
A: Yes.
Q: What did the accused do to you?
A: Since September 1993, the accused has been kissing me and touching my private parts.
Q: How many times did the accused do that?
A: Several times.
Q: Aside from kissing you and touching your private parts in September 1993, what else did he do to you?
A: Yes.
Q: What is that?
A: He raped me.31
xxxx
Q: In September 1993, did the accused placed (sic) his penis inside your vagina? Q: And you could even grab that bolo if you wanted to during the alleged time of rape?

A: Yes, September 1993. A: I was afraid.

COURT: How many times? Q: As far as you can remember, how many times were you raped by the accused?

A: Several times in September. A: Many times, I can no longer remember because he treated me as his wife.

COURT: In how may occasions did it happen? Q: But despite the opportunity open to you for you to escape, you did not use them?

A: Once almost everyday.32 A: I tried to escape but I did not know where to go.33

AAA's further testimony during cross-examination and re-direct examination shows the consistency of her allegation xxxx
that she was forced against her will and was intimidated by the appellant when the latter satisfied his lust. Thus, as
testified:
Re-direct:

Cross-examination:
PUBLIC PROSECUTOR: When you said a while ago that you did not shout or asked for help from your brother and
cousin and you said you were threatened, did you believe your uncle when he threatened you?
Q: When you were allegedly raped, did you not fight back or shout when these abuses were being committed?
A: Yes, sir.
A: I fought back but I did not shout.
Q: Why did you believe him?
Q: And your cousin, brother and sister were not awakened at the time you were allegedly raped?
A: Because I was afraid.
A: No, sir.
Q: And the threat that he made, that frightened you?
Q: But you could arose (sic) them or call them for help.
A: His voice, "masyadong mataas." When I was still a child he used to spank me.
A: I was afraid during that time.
Q: What was (sic) the exact words that he said that made you frightened?
Q: Were you being threatened by the accused when these rapes were being committed?
A: That I cannot go to school.
A: He told me that I will not be sent to school if I will shout and fight back, and I wanted to go to school during that
time.
Q: That is all?

Q: But you were not threatened with any weapon or physical harm during the time that you were threatened?
A: He also told me that he will kill my brother and sister.

A: He showed me a bolo.
Q: Did you believe him when he said he will kill your brother and sister?

Q: But he was not holding this bolo at the time the alleged rape was committed?
A: Yes, sir, because he has a frightful face.

A: It was beside him, sir.

Q: Did you see your uncle physically harm your brother and sister even before or after the incident?

Q: He did not even touch that bolo while the rape was being committed?
A: Yes, sir, he had made physical harm on my brother and sister.34

A: No, sir.
Hence, the trial court did not err in appreciating the testimony of AAA. The unbroken line of jurisprudence is that this Court will A: On January 31, 1994, the accused kissed me and touched my private parts again.
not disturb the findings of the trial court as to the credibility of witnesses, considering that it is in a better position to observe
their candor and behavior on the witness stand. Evaluation of the credibility of witnesses and their testimonies is a matter best
Q: Where did this happen?
undertaken by the trial court, because of its unique opportunity to observe the witnesses and their demeanor, conduct, and
attitude, especially under cross-examination. Its assessment is respected unless certain facts of substance and value were
overlooked which, if considered, might affect the result of the case.35 Furthermore, the above testimonies of AAA positively A: Inside our room in our house at St. Anthony, Inarawan, Antipolo, Rizal.
identifying appellant as the one who defiled her were all the more strengthened by the Medico-Legal Report36 conducted by
Dr. Rosaline Onggao, who also testified that: Q: Aside from kissing you and touching your private parts in your house where you were living, what else did the
accused do to you?
PUBLIC PROSECUTOR: Can you tell us what is in the findings which would verify or confirm the information given to
you by AAA that she was sexually abused for several times? A: On January 31, after I took a bath when I went inside our room wrapped in towel, I did not know that the
accused was inside the room, he removed the towel and laid me down at the sofa, tried to kiss me but I kicked
A: The hymen. him and scratched his arms.

Q: Where particularly in the hymen would confirm that she was sexually abused? Q: Then what happened next?

A: The healed laceration in the hymen. A: Afterwards, he went out of the room, I dressed up and I was trying to get out of the house and he was preventing
me from going out. He was blocking my way. He again wanted to rape me.
Q: Based on the healed laceration, would you be able to tell this Honorable Court the time when the sexual abuse
occurred? Q: What happened next?

A: Since the lacerations were healed more than 7 days or more prior to my examination, it could be more than a A: I pushed him and I was able to open the door and I ran out of the house.
month.
Q: You are telling that in January 1994, all these things the accused did to you except inserting his penis to your
Q: What could be the cause of laceration in the hymen? vagina?

A: The laceration could have been caused by forcible entry of a hard object. A: Yes.41

Q: Would you consider the penis as a hard blunt object? xxxx

A: Yes, sir.37 PUBLIC PROSECUTOR: In January 1994, did the accused raped (sic) you by placing his penis inside your vagina?

It is settled that when the victims claim of rape is corroborated by the physical findings of penetration, there exists sufficient A: Not exactly January 31, 1994, but I remember between January 1 to 5.
basis for concluding that sexual intercourse did take place.38
Q: Nothing happens on January 31, 1994?
For his defense, appellant merely denied having raped AAA. However, denial, when unsubstantiated by clear and convincing
evidence, constitutes negative self-serving evidence which deserves no greater evidentiary value than the testimony of a A: I was not raped anymore on January 31, 1994, because I told my sister about it already.42
credible witness who testified on affirmative matters.39 In the present case, the records are devoid of any clear and convincing
evidence that would substantiate appellant's denial. In the same manner, appellant's claim that the filing of the criminal
charges against him was instigated by AAA's aunt because he failed to lend the latter money is uncorroborated by any Attempted rape requires that the offender commence the commission of rape directly by overt acts, but does not perform all
evidence. Thus, when there is no evidence to show any improper motive on the part of the rape victim to testify falsely against the acts of execution by reason of some cause or accident other than his own spontaneous desistance.43 The prosecution must,
the accused or to falsely implicate him in the commission of a crime, the logical conclusion is that the testimony is worthy of therefore, establish the following elements of an attempted felony:
full faith and credence.40
1. The offender commences the commission of the felony directly by overt acts;
With regard to the modification of the trial court's decision by the CA as to the latter's findings that only an attempted rape
was committed on January 31, 1994, this Court disagrees. AAA's testimony belies the consummation, as well as the attempt to 2. He does not perform all the acts of execution which should produce the felony;
rape her on the said date. She said that:
3. The offenders act be not stopped by his own spontaneous desistance;
Q: My question is, after December 1993, what else did the accused do to you?
 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous
desistance.44
The above elements are wanting in the present case. Appellants act of removing the towel wrapped in the body of AAA, laying
her on the sofa and kissing and touching her private parts does not exactly demonstrate the intent of appellant to have carnal
knowledge of AAA on that particular date; thus, dismissing the mere opinion and speculation of AAA, based on her testimony,
that appellant wanted to rape her. Even so, the said acts should not be left unpunished as the elements of the crime of acts of
lasciviousness, as defined in the Revised Penal Code, in relation to Section 5,45 Article III of Republic Act (R.A.) No. 7610,46 AAA,
being a minor when the incident happened, are present. In People v. Bon:47
The elements of the crime of acts lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2)
that it is done: (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise
unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of
either sex.
Section 32, Article XIII, of the Implementing Rules and Regulations of RA 7610 or the Child Abuse Law defines lascivious
conduct, as follows:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or
the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or pubic area of a person.48
Clearly, all the elements of the offense are present. The actions of appellant on January 31, 1994, i.e., laying AAA on the sofa
and kissing and touching her private parts are, by definition, lascivious or lewd, and based on AAA's testimony, the intimidation
from appellant was in existence and apparent. Section 5 of R.A. No. 7610 does not merely cover a situation of a child being
abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation.49 As case
law has it, intimidation need not necessarily be irresistible.50 It is sufficient that some compulsion equivalent to intimidation
annuls or subdues the free exercise of the will of the offended party.51 This is especially true in the case of young, innocent and
immature girls who could not be expected to act with equanimity of disposition and with nerves of steel.52 Young girls cannot
be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat.53
Incidentally, under Section 4, Rule 120 of the Revised Rules of Criminal Procedure, when there is a variance between the
offense charged in the complaint or information, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved.54 As explained by this Court in People v. Abulon:55
However, following the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure,
appellant can be found guilty of the lesser crime of acts of lasciviousness. Said provisions read:
Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense charged in
the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved.
Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes the latter.
And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or
form part of those constituting the latter.1avvphi1
Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in rape.56
In People v. Candaza,57 this Court ruled that the penalty for acts of lasciviousness performed on a child under Section 5(b) of
R.A. No. 7610 is reclusion temporal in its medium period to reclusion perpetua; thus, applying the Indeterminate Sentence Law,
the penalty to be imposed on appellant should thus fall within the range of prision mayor medium to reclusion temporal
minimum, as minimum, to reclusion temporal maximum, as maximum.
WHEREFORE, the appealed Decision dated April 14, 2005 of the Court of Appeals finding appellant Alejandro of Rellota y Tadeo
guilty beyond reasonable doubt of the crime of two (2) counts rape is hereby AFFIRMED with the MODIFICATION that the
same appellant is also GUILTY beyond reasonable doubt of the crime of acts of lasciviousness as defined in the Revised Penal
Code, in relation to Section 5, Article III of Republic Act No. 7610, and is hereby sentenced to suffer an indeterminate penalty of
imprisonment from eight (8) years and one (1) day of prision mayor, as minimum to seventeen (17) years, four (4) months and
(1) day of reclusion temporal, as maximum; and per previous ruling58 of this Court, must also indemnify the victim in the
amount of 15,000.00 as moral damages and pay a fine in the same amount.
SO ORDERED.
G.R. No. 147913 January 31, 2007
CLEMENT JOHN FERDINAND M. NAVARRETE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 assails the September 29, 2000 decision2 and May 4, 2001 resolution3 of the Court of
Appeals (CA) in CA-G.R. CR No. 20531 which affirmed the January 16, 1997 decision of the Regional Trial Court (RTC), Branch
171, Valenzuela,4 Metro Manila in Criminal Case No. 5302-V-96.5
Petitioner Clement John Ferdinand M. Navarrete was charged with the crime of statutory rape of BBB6 under the following
information:
That on or about October 30, 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there [willfully], unlawfully and feloniously have sexual intercourse with one [BBB], age[d] 5 years
old.
CONTRARY TO LAW.7
On arraignment, petitioner pleaded not guilty.
The facts show that BBB, who was at that time five years old, and petitioner were neighbors, their houses being adjacent to
each other.8 On October 30, 1995, at around past 9:00 in the evening, BBB went to petitioners house to watch television,
which was something she often did.9 Only petitioner and BBB were there that night.10 BBB testified that it was on this occasion
that petitioner sexually abused her, "placed his penis [in her] vagina" twice, poked her vagina with a "stick with cotton"11 and
boxed her on the right side of her eye.12 Then, petitioner brought her to the comfort room and pointed a knife to her
throat.13 Afterwards, she and petitioner watched a pornographic movie14 together.15
AAA, BBBs mother, testified that around 10:30 p.m., BBB went out of petitioners house. While trembling and crying, BBB
embraced her mother and told her that "Kuya Ferdie sinundot ako."16
The next day, on October 31, 1995, Dr. Noel Minay, medico-legal officer of the National Bureau of Investigation, examined BBB.
He found that her maidenhead was short, intact and had a narrow opening at 0.3 cm. in diameter. He concluded that these
findings precluded complete penetration by an average-sized Filipino male organ in full erection.17
Testifying in his own behalf, petitioner denied the accusation against him and claimed that AAA merely concocted the charge
against him. He alleged that she had ill feelings against his mother who she thought had something to do with the separation of
her (AAAs) son from the Philippine Postal Corporation. He also posited that she resented the Navarretes refusal to allow her
to place a "jumper" on their electrical connection.18
In a decision dated January 16, 1997, the RTC absolved petitioner of statutory rape as there was no clear and positive proof of
the entry of petitioners penis into the labia of the victims vagina. However, it convicted petitioner for acts of lasciviousness
under Article 336 of the Revised Penal Code (RPC) in relation to Section 5(b), Article III of RA 7610 (Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act):
WHEREFORE, [petitioner] Clement John Ferdinand Navarrete is sentenced to suffer an indeterminate imprisonment of TWELVE
(12) YEARS and ONE (1) DAY of RECLUSION TEMPORAL, as minimum to [SIXTEEN] (16) YEARS of RECLUSION TEMPORAL, as
maximum with the accessory penalties prescribed by the law and to pay the costs.
The accused is hereby ordered to indemnify the victim the amount of P20,000.00 as moral damages and the amount
of P10,000.00 pursuant to Section 31 of the [Act].19
On appeal, the CA affirmed the decision of the RTC. Thus, this petition.
Petitioner asserts that he cannot be convicted of acts of lasciviousness in relation to Section 5(b), Article III of RA 7610, a crime
not specifically alleged in the information which charged him with statutory rape. Otherwise, his constitutional right to be
informed of the nature and cause of the accusation against him would be violated. He likewise contends that his guilt for the
said offense was not proven beyond reasonable doubt.
There is no merit in the petition.
The Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be informed of the nature and
cause of the accusation against him.20 From this fundamental precept proceeds the rule that the accused may be convicted
only of the crime with which he is charged.21
An exception to this rule is the rule on variance in Section 4, Rule 120 of the Rules of Court:22
Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the
complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense
charged which is included in that which is proved.
Petitioner was found guilty of violating Article 336 of the RPC in relation to Section 5(b), Article III of RA 7610:
Sec. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxx xxx xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to
other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, [or] the [RPC], for rape or lascivious
conduct as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period.
Under this provision, when the victim is under 12 years old, the accused shall be prosecuted under either Article 335 (for rape)
or Article 336 (for acts of lasciviousness) of the RPC. Accordingly, although an accused is charged in the information with the
crime of statutory rape (i.e., carnal knowledge of a woman under twelve years of age23), the offender can be convicted of the
lesser crime of acts of lasciviousness, which is included in rape.24
The case of People v. Bon25 is squarely in point. In that case, the accused was charged with the rape of a six-year old girl. The
Court ruled that rape was not proved beyond reasonable doubt. We, however, held that the accused was "liable for the crime
of acts of lasciviousness, as defined and penalized under Article 336 of the RPC in relation to RA 7610"26 since all the elements
of this offense were established. Petitioner cannot therefore successfully argue that his constitutionally protected right to be
informed of the nature and cause of the accusation against him was violated when he was found guilty under Section 5 of RA
7610.
Petitioner next contends that his guilt was not proven beyond reasonable doubt. We disagree.
In Amployo v. People,27 we declared that pursuant to Section 5 (b) of RA 7610, before an accused can be convicted of child
abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336
of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of RA 7610.28
The elements of the crime of acts of lasciviousness under Article 336 of the RPC are the following:
(1) The offender commits any act of lasciviousness or lewdness;
(2) It is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age; and
(3) The offended party is another person of either sex. (emphasis supplied)29
The general rule is that the factual findings of the trial court deserve a high degree of respect and will not be disturbed on
appeal in the absence of any clear showing that it overlooked, misapprehended or misapplied some facts or circumstances of
weight and substance which can alter the result of the case.30 We uphold the findings of fact of the RTC, as affirmed by the CA.
The RTC and CA did not find evidence of the entrance of petitioners penis into the labia of the victims female organ.
Nevertheless, BBBs testimony established that petitioner committed lascivious acts on her:
BY ATTY. PRINCIPE: (to witness) [All right], witness may answer.

Q: [BBB], do you know accused Ferdinand Navarette? (Witness pointing to her throat.)

A: Yes, sir. Q: And what is the meaning that she wants to convey?

Q: Also named Clement John Ferdinand Navarette? ATTY. TENEZA:

A: Yes, sir. Witness holding her throat.

Q: Why do you know Clement John Ferdinand Navarette? ATTY. PRINCIPE:

A: Because he is the one who did something to me. Pointing. Very clear.

Q: What do you mean by "umano"? Q: When you pointed your throat, what do you want to convey [with] the word stab?

A. He placed his penis into my vagina. (pekpek) ATTY. PRINCIPE:

Q: How many times? A. Sinaksak. That is, Your Honor. Because this is her interpretation of pointing the knife.

A: Two times, sir. xxx xxx xxx

Q: Then he placed his penis to your vagina, what did you feel? ATTY. PRINCIPE:

A: I felt pain, sir. After the accused locked you in the [comfort room] with the knife, according to you, what happened next, if any?

xxx xxx xxx xxx xxx xxx

Q: What else happened after Ferdinand Navarette put his penis twice on your vagina which you told the Court you felt pain? Witness:

A: He locked me inside the [comfort room] and he took a knife. A: Then I went [out] of the [comfort room] when I heard my mother calling me.

Q: Now, when you were inside the Comfort Room and you told the Court that he got a knife, what happened next, if any? ATTY. PRINCIPE: (to the witness)

A: He stabbed me. Q: And where was your mother at that time?

Q: Where? A : She was outside and waiting for my Kuya [XXX].

A: (Witness pointing the throat.) Q: When you were called by your mother, according to you, did you approach your mother when hearing that she was calling
you?
Q: And when you said "sinaksak" on your throat you mean accused only pointed [to] your throat?
ATTY. TENEZA:
xxx xxx xxx
It was already answered, Your Honor.
COURT:
ATTY. PRINCIPE : xxx xxx xxx

No. The Court cannot [assume] without doing violence to the precious jural yardstick but the prosecution must prove and present
clear, positive and conclusive evidence of the act complained of particularly that the penis of the accused gained entrance [in]
the labia majora of the organ of the victim. Not even in the medical findings and testimony of the NBI Medico-Legal Officer Dr.
COURT:
Noel Minay who conducted physical/genital examinations on the victim could [we] find support to justify an inference that
there was entrance of the male organ of the accused within the labia of pudendum.32
Witness may answer.
Both lower courts also found that petitioner poked victims vagina with a stick with cotton and watched a pornographic movie
ATTY. PRINCIPE: (to the witness) with her.33 These acts are undoubtedly acts of lasciviousness or lewdness.34

Q: And what did you tell your mother, if any? The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of
lasciviousness are as follows:
A: I embraced her.
1. The accused commits the act of sexual intercourse or lascivious conduct.
Q: After embracing your mother, did you tell [her] something if any?
2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse.
A: She [asked] me [why] I was still watching T.V. when the people of the house were already sleeping.
3. The child, whether male or female, is below 18 years of age. (Emphasis supplied)35
Q: What was your reply to your mama?
"Lascivious conduct" is defined under Section 2 (h) of the rules and regulations36 of RA 7610 as:
A: Because I used to watch T.V. [in] that place.
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or
Q: Did you report to your mother what Ferdinand Navarette did to you? the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or pubic area of a person.
A: Yes, sir.

The aforestated acts of petitioner undeniably amounted to lascivious conduct under this law.
Q: How did you tell your mother?

Petitioner insists that Section 5 (b) of RA 7610 refers only to those who commit the act of sexual intercourse or lascivious
A. I told my mama "Binastos ako ni Ferdie." conduct with a child exploited in prostitution and argues that this does not apply in this case since the victim is not a child
exploited in prostitution.37
Q: How did you relate that you were "binastos ni Ferdie"?
Petitioners argument is untenable. In People v. Larin (and reiterated in several subsequent cases),38 we emphasized that the
A: I told my mama: Mama, Ferdie [placed] his penis on my vagina and then he placed a stick with cotton on my vagina and then law covers not only a situation in which a child is abused for profit but also one in which a child, through coercion or
he boxed me, on my right side of my eye. intimidation, engages in any lascivious conduct.39 The very title of Section 5, Article III (Child Prostitution and Other Sexual
Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a child subjected to other
sexual abuse. A child is deemed subjected to "other sexual abuse" when he or she indulges in lascivious conduct under the
Q: How many times were you boxed by Ferdie, the accused? coercion or influence of any adult.40 Here, BBB was sexually abused because she was coerced or intimidated by petitioner (who
poked her neck with a knife)41 to indulge in lascivious conduct.
A: Two (2) times, sir.31
Hence, the prosecution was able to prove beyond reasonable doubt that petitioner committed acts of sexual abuse against
The foregoing shows that all the elements of acts of lasciviousness were proved. That BBB was less than twelve years old at the BBB. The RTC found BBBs testimony to be clear, candid, and straightforward. Her testimony was worthy of belief since she was
time of the commission of the offense was not disputed. The prosecution established that petitioner intentionally "placed his young and had no ill-motive to falsely testify and impute a serious crime against the accused.42In cases of acts of lasciviousness,
penis" in BBBs vagina but without any indication that he was able to penetrate her: the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused.43

Victim [BBB] testified that the accused "placed his penis into my vagina" and "[placed] a stick with cotton [in] my vagina" but Moreover, courts are inclined to lend credence to the testimony of children of tender years. The revelation of an innocent child
the [specific] part of her vagina where the penis was placed was not indicated. whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public
trial is an eloquent testament to the truth of her complaint.44 In so testifying, she could have only been impelled to tell the
truth.45
The trial courts evaluation of the testimonies of witnesses is given great respect by the appellate court in the absence of proof
that it was arrived at arbitrarily or that the trial court overlooked material facts.46 The rationale behind this rule is that the
credibility of a witness can best be determined by the trial court since it has the direct opportunity to observe the candor and
demeanor of the witnesses at the witness stand and detect if they are telling the truth or not.47 We will not interfere with the
trial courts assessment of the credibility of witnesses.
In the face of the serious accusation against him, petitioner could only interpose denial as defense. Denial is an inherently weak
defense and cannot prevail over the positive and categorical identification provided by the complainant. Denial, if
unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law.48 As between the
positive declaration of the prosecution witness and the negative statement of the accused, the former deserves more
credence.49 The lower courts also correctly disbelieved the corroborating testimonies of petitioners aunt and sister.50
Petitioner asserts that the RTC should not have given evidentiary weight to the inconsistent and contradictory testimonies of
the prosecution witnesses. He urges this Court to apply the Latin maxim falsus in unus, falsus in omnibus (false in part, false in
everything).
We disagree. We have stated that:
[T]he maxim or rule "falsus in [unus], falsus in omnibus" does not lay down a categorical test of credibility. It is not a positive
rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence,
particularly where the false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a
disregard of the testimony of a witness if the circumstances so warrant. To completely disregard all the testimony of a witness
on this ground, his testimony must have been false as to a material point, and the witness must have a conscious and
deliberate intention to falsify a material point.51
Furthermore, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused
statements. Instead of eroding the effectiveness of the evidence, such imperfections and discrepancies in the testimony can in
fact be considered as signs of veracity.52 Aside from the fact that it is very difficult to give a mechanical and accurate account of
a traumatic and horrifying experience,53 the victim here was a mere five-year old girl when she was put on the witness stand.
We should not expect a five-year old child to explain with exact precision the nature of the acts done to her, given her naivet
and still undeveloped vocabulary and command of language.54 Despite this limitation, however, the victim never wavered in
her claim that petitioner molested her.
In sum, we find petitioner guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the RPC in relation to
Section 5 (b), Article III of RA 7610.
WHEREFORE, the petition is hereby DENIED. The September 29, 2000 decision of the Court of Appeals affirming the decision of
the Regional Trial Court of Valenzuela, Branch 171, in Criminal Case No. 5302-V-96 finding petitioner guilty beyond reasonable
doubt of acts of lasciviousness and sentencing him to suffer imprisonment of twelve years and one day of reclusion temporal,
as minimum, to sixteen years of reclusion temporal, as maximum, as well as to pay P20,000 moral damages and P10,000 fine
is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 141524 September 14, 2005
DOMINGO NEYPES, LUZ FAUSTINO, ROGELIO FAUSTINO, LOLITO VICTORIANO, JACOB OBANIA AND DOMINGO
CABACUNGAN, Petitioners,
vs.
HON. COURT OF APPEALS, HEIRS OF BERNARDO DEL MUNDO, namely: FE, CORAZON, JOSEFA, SALVADOR and CARMEN, all
surnamed DEL MUNDO, LAND BANK OF THE PHILIPPINES AND HON. ANTONIO N. ROSALES, Presiding Judge, Branch 43,
Regional Trial Court, Roxas, Oriental Mindoro,Respondent.
DECISION
CORONA, J.:
Petitioners Domingo Neypes, Luz Faustino, Rogelio Faustino, Lolito Victoriano, Jacob Obania and Domingo Cabacungan filed an
action for annulment of judgment and titles of land and/or reconveyance and/or reversion with preliminary injunction before
the Regional Trial Court, Branch 43, of Roxas, Oriental Mindoro, against the Bureau of Forest Development, Bureau of Lands,
Land Bank of the Philippines and the heirs of Bernardo del Mundo, namely, Fe, Corazon, Josefa, Salvador and Carmen.
In the course of the proceedings, the parties (both petitioners and respondents) filed various motions with the trial court.
Among these were: (1) the motion filed by petitioners to declare the respondent heirs, the Bureau of Lands and the Bureau of
Forest Development in default and (2) the motions to dismiss filed by the respondent heirs and the Land Bank of the
Philippines, respectively.
In an order dated May 16, 1997, the trial court, presided by public respondent Judge Antonio N. Rosales, resolved the
foregoing motions as follows: (1) the petitioners motion to declare respondents Bureau of Lands and Bureau of Forest
Development in default was granted for their failure to file an answer, but denied as against the respondent heirs of del Mundo
because the substituted service of summons on them was improper; (2) the Land Banks motion to dismiss for lack of cause of
action was denied because there were hypothetical admissions and matters that could be determined only after trial, and (3)
the motion to dismiss filed by respondent heirs of del Mundo, based on prescription, was also denied because there were
factual matters that could be determined only after trial.1
The respondent heirs filed a motion for reconsideration of the order denying their motion to dismiss on the ground that the
trial court could very well resolve the issue of prescription from the bare allegations of the complaint itself without waiting for
the trial proper.
In an order2 dated February 12, 1998, the trial court dismissed petitioners complaint on the ground that the action had already
prescribed. Petitioners allegedly received a copy of the order of dismissal on March 3, 1998 and, on the 15th day thereafter or
on March 18, 1998, filed a motion for reconsideration. On July 1, 1998, the trial court issued another order dismissing the
motion for reconsideration3 which petitioners received on July 22, 1998. Five days later, on July 27, 1998, petitioners filed a
notice of appeal4 and paid the appeal fees on August 3, 1998.
On August 4, 1998, the court a quo denied the notice of appeal, holding that it was filed eight days late.5 This was received by
petitioners on July 31, 1998. Petitioners filed a motion for reconsideration but this too was denied in an order dated
September 3, 1998.6
Via a petition for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil Procedure, petitioners assailed the dismissal
of the notice of appeal before the Court of Appeals.
In the appellate court, petitioners claimed that they had seasonably filed their notice of appeal. They argued that the 15-day
reglementary period to appeal started to run only on July 22, 1998 since this was the day they received the final order of the
trial court denying their motion for reconsideration. When they filed their notice of appeal on July 27, 1998, only five days had
elapsed and they were well within the reglementary period for appeal.7
On September 16, 1999, the Court of Appeals (CA) dismissed the petition. It ruled that the 15-day period to appeal should have
been reckoned from March 3, 1998 or the day they received the February 12, 1998 order dismissing their complaint. According
to the appellate court, the order was the "final order" appealable under the Rules. It held further:
Perforce the petitioners tardy appeal was correctly dismissed for the (P)erfection of an appeal within the reglementary period
and in the manner prescribed by law is jurisdictional and non-compliance with such legal requirement is fatal and effectively
renders the judgment final and executory.8
Petitioners filed a motion for reconsideration of the aforementioned decision. This was denied by the Court of Appeals on
January 6, 2000.
In this present petition for review under Rule 45 of the Rules, petitioners ascribe the following errors allegedly committed by
the appellate court:
I Based on the foregoing, an appeal should be taken within 15 days from the notice of judgment or final order appealed from. A
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE PETITIONERS PETITION FOR CERTIORARI AND MANDAMUS
AND IN AFFIRMING THE ORDER OF THE HON. JUDGE ANTONIO N. ROSALES WHICH DISMISSED THE PETITIONERS APPEAL IN
CIVIL CASE NO. C-36 OF THE REGIONAL TRIAL COURT, BRANCH 43, ROXAS, ORIENTAL MINDORO, EVEN AFTER THE PETITIONERS
HAD PAID THE APPEAL DOCKET FEES.
II
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN RULING AND AFFIRMING THE DECISION OR ORDER OF THE
RESPONDENT HON. ANTONIO M. ROSALES THAT PETITIONERS APPEAL WAS FILED OUT OF TIME WHEN PETITIONERS RECEIVED
THE LAST OR FINAL ORDER OF THE COURT ON JULY 22, 1998 AND FILED THEIR NOTICE OF APPEAL ON JULY 27, 1998 AND PAID
THE APPEAL DOCKET FEE ON AUGUST 3, 1998.
III
THE HONORABLE COURT OF APPEALS FURTHER ERRED IN RULING THAT THE WORDS "FINAL ORDER" IN SECTION 3, RULE 41, OF
THE 1997 RULES OF CIVIL PROCEDURE WILL REFER TO THE [FIRST] ORDER OF RESPONDENT JUDGE HON. ANTONIO M.
MORALES DATED FEBRUARY 12, 1998 INSTEAD OF THE LAST AND FINAL ORDER DATED JULY 1, 1998 COPY OF WHICH WAS
RECEIVED BY PETITIONERS THROUGH COUNSEL ON JULY 22, 1998.
IV.
THE HONORABLE COURT OF APPEALS FINALLY ERRED IN FINDING THAT THE DECISION IN THE CASE OF DENSO, INC. V. IAC, 148
SCRA 280, IS APPLICABLE IN THE INSTANT CASE THEREBY IGNORING THE PECULIAR FACTS AND CIRCUMSTANCES OF THIS CASE
AND THE FACT THAT THE SAID DECISION WAS RENDERED PRIOR TO THE ENACTMENT OF THE 1997 RULES OF CIVIL
PROCEDURE.9
The foregoing issues essentially revolve around the period within which petitioners should have filed their notice of appeal.
First and foremost, the right to appeal is neither a natural right nor a part of due process. It is merely a statutory privilege and
may be exercised only in the manner and in accordance with the provisions of law. Thus, one who seeks to avail of the right to
appeal must comply with the requirements of the Rules. Failure to do so often leads to the loss of the right to appeal.10 The
period to appeal is fixed by both statute and procedural rules. BP 129,11 as amended, provides:
Sec. 39. Appeals. The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all
these cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision
appealed from. Provided, however, that in habeas corpus cases, the period for appeal shall be (48) forty-eight hours from the
notice of judgment appealed from. x x x
Rule 41, Section 3 of the 1997 Rules of Civil Procedure states:
SEC. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from the notice of the judgment or
final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on
appeal within thirty (30) days from the notice of judgment or final order.
The period to appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time
to file a motion for new trial or reconsideration shall be allowed. (emphasis supplied)
final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do with respect to it. It is an
adjudication on the merits which, considering the evidence presented at the trial, declares categorically what the rights and
obligations of the parties are; or it may be an order or judgment that dismisses an action.12
As already mentioned, petitioners argue that the order of July 1, 1998 denying their motion for reconsideration should be
construed as the "final order," not the February 12, 1998 order which dismissed their complaint. Since they received their copy
of the denial of their motion for reconsideration only on July 22, 1998, the 15-day reglementary period to appeal had not yet
lapsed when they filed their notice of appeal on July 27, 1998.
What therefore should be deemed as the "final order," receipt of which triggers the start of the 15-day reglementary period to
appeal the February 12, 1998 order dismissing the complaint or the July 1, 1998 order dismissing the MR?
In the recent case of Quelnan v. VHF Philippines, Inc.,13 the trial court declared petitioner Quelnan non-suited and accordingly
dismissed his complaint. Upon receipt of the order of dismissal, he filed an omnibus motion to set it aside. When the omnibus
motion was filed, 12 days of the 15-day period to appeal the order had lapsed. He later on received another order, this time
dismissing his omnibus motion. He then filed his notice of appeal. But this was likewise dismissed for having been filed out
of time.
The court a quo ruled that petitioner should have appealed within 15 days after the dismissal of his complaint since this was
the final order that was appealable under the Rules. We reversed the trial court and declared that it was the denial of the
motion for reconsideration of an order of dismissal of a complaint which constituted the final order as it was what ended the
issues raised there.
This pronouncement was reiterated in the more recent case of Apuyan v. Haldeman et al.14 where we again considered the
order denying petitioner Apuyans motion for reconsideration as the final order which finally disposed of the issues involved in
the case.
Based on the aforementioned cases, we sustain petitioners view that the order dated July 1, 1998 denying their motion for
reconsideration was the final order contemplated in the Rules.
We now come to the next question: if July 1, 1998 was the start of the 15-day reglementary period to appeal, did petitioners in
fact file their notice of appeal on time?
Under Rule 41, Section 3, petitioners had 15 days from notice of judgment or final order to appeal the decision of the trial
court. On the 15th day of the original appeal period (March 18, 1998), petitioners did not file a notice of appeal but instead
opted to file a motion for reconsideration. According to the trial court, the MR only interrupted the running of the 15-day appeals to it and to the Court of Appeals, particularly Rules 42,27 4328 and 45,29 the Court allows extensions of time, based on
appeal period.15 It ruled that petitioners, having filed their MR on the last day of the 15-day reglementary period to appeal, had justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more.
only one (1) day left to file the notice of appeal upon receipt of the notice of denial of their MR. Petitioners, however, argue
that they were entitled under the Rules to a fresh period of 15 days from receipt of the "final order" or the order dismissing
To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court
their motion for reconsideration.
deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. 30
In Quelnan and Apuyan, both petitioners filed a motion for reconsideration of the decision of the trial court. We ruled there
that they only had the remaining time of the 15-day appeal period to file the notice of appeal. We consistently applied this rule
Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the
in similar cases,16 premised on the long-settled doctrine that the perfection of an appeal in the manner and within the period
Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals
permitted by law is not only mandatory but also jurisdictional.17 The rule is also founded on deep-seated considerations of
from quasi-judicial agencies31 to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.32 The
public policy and sound practice that, at risk of occasional error, the judgments and awards of courts must become final at
new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for
some definite time fixed by law.18
new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

Prior to the passage of BP 129, Rule 41, Section 3 of the 1964 Revised Rules of Court read:
Sec. 3. How appeal is taken. Appeal maybe taken by serving upon the adverse party and filing with the trial court within
thirty (30) days from notice of order or judgment, a notice of appeal, an appeal bond, and a record on appeal. The time
during which a motion to set aside the judgment or order or for new trial has been pending shall be deducted, unless such
motion fails to satisfy the requirements of Rule 37.
But where such motion has been filed during office hours of the last day of the period herein provided, the appeal must be
perfected within the day following that in which the party appealing received notice of the denial of said motion.19 (emphasis
supplied)
According to the foregoing provision, the appeal period previously consisted of 30 days. BP 129, however, reduced this appeal
period to 15 days. In the deliberations of the Committee on Judicial Reorganization20 that drafted BP 129, the raison d
etre behind the amendment was to shorten the period of appeal21 and enhance the efficiency and dispensation of justice. We
have since required strict observance of this reglementary period of appeal. Seldom have we condoned late filing of notices of
appeal,22 and only in very exceptional instances to better serve the ends of justice.
We thus hold that petitioners seasonably filed their notice of appeal within the fresh period of 15 days, counted from July 22,
1998 (the date of receipt of notice denying their motion for reconsideration). This pronouncement is not inconsistent with Rule
41, Section 3 of the Rules which states that the appeal shall be taken within 15 days from notice of judgment or final order
appealed from. The use of the disjunctive word "or" signifies disassociation and independence of one thing from another. It
should, as a rule, be construed in the sense in which it ordinarily implies.33 Hence, the use of "or" in the above provision
supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of
the "final order," which we already determined to refer to the July 1, 1998 order denying the motion for a new trial or
reconsideration.
Neither does this new rule run counter to the spirit of Section 39 of BP 129 which shortened the appeal period from 30 days to
15 days to hasten the disposition of cases. The original period of appeal (in this case March 3-18, 1998) remains and the
requirement for strict compliance still applies. The fresh period of 15 days becomes significant only when a party opts to file a
motion for new trial or motion for reconsideration. In this manner, the trial court which rendered the assailed decision is given
another opportunity to review the case and, in the process, minimize and/or rectify any error of judgment. While we aim to
resolve cases with dispatch and to have judgments of courts become final at some definite time, we likewise aspire to deliver
justice fairly.

In this case, the new period of 15 days eradicates the confusion as to when the 15-day appeal period should be counted from
In National Waterworks and Sewerage Authority and Authority v. Municipality of Libmanan,23 however, we declared that
receipt of notice of judgment (March 3, 1998) or from receipt of notice of "final order" appealed from (July 22, 1998).
appeal is an essential part of our judicial system and the rules of procedure should not be applied rigidly. This Court has on
occasion advised the lower courts to be cautious about not depriving a party of the right to appeal and that every party litigant
should be afforded the amplest opportunity for the proper and just disposition of his cause, free from the constraint of To recapitulate, a party litigant may either file his notice of appeal within 15 days from receipt of the Regional Trial Courts
technicalities. decision or file it within 15 days from receipt of the order (the "final order") denying his motion for new trial or motion for
reconsideration. Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the original appeal period provided in Rule 41, Section 3.
In de la Rosa v. Court of Appeals,24 we stated that, as a rule, periods which require litigants to do certain acts must be followed
unless, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice.
There, we condoned the delay incurred by the appealing party due to strong considerations of fairness and justice. Petitioners here filed their notice of appeal on July 27, 1998 or five days from receipt of the order denying their motion for
reconsideration on July 22, 1998. Hence, the notice of appeal was well within the fresh appeal period of 15 days, as already
discussed.34
In setting aside technical infirmities and thereby giving due course to tardy appeals, we have not been oblivious to or
unmindful of the extraordinary situations that merit liberal application of the Rules. In those situations where technicalities
were dispensed with, our decisions were not meant to undermine the force and effectivity of the periods set by law. But we We deem it unnecessary to discuss the applicability of Denso (Philippines), Inc. v. IAC35 since the Court of Appeals never even
hasten to add that in those rare cases where procedural rules were not stringently applied, there always existed a clear need to referred to it in its assailed decision.
prevent the commission of a grave injustice. Our judicial system and the courts have always tried to maintain a healthy balance
between the strict enforcement of procedural laws and the guarantee that every litigant be given the full opportunity for the
WHEREFORE, the petition is hereby GRANTED and the assailed decision of the Court of Appeals REVERSED and SET ASIDE.
just and proper disposition of his cause.25
Accordingly, let the records of this case be remanded to the Court of Appeals for further proceedings.

The Supreme Court may promulgate procedural rules in all courts.26 It has the sole prerogative to amend, repeal or even
No costs.
establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing
SO ORDERED.
G.R. No. 170979 February 9, 2011
JUDITH YU, Petitioner,
vs.
HON. ROSA SAMSON-TATAD, Presiding Judge, Regional Trial Court, Quezon City, Branch 105, and the PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for prohibition filed by petitioner Judith Yu to enjoin respondent Judge Rosa Samson-Tatad of the
Regional Trial Court (RTC), Branch 105, Quezon City, from taking further proceedings in Criminal Case No. Q-01-105698,
entitled "People of the Philippines v. Judith Yu, et al."1
The Factual Antecedents
The facts of the case, gathered from the parties pleadings, are briefly summarized below.
Based on the complaint of Spouses Sergio and Cristina Casaclang, an information for estafa against the petitioner was filed with
the RTC.
In a May 26, 2005 decision, the RTC convicted the petitioner as charged. It imposed on her a penalty of three (3) months of
imprisonment (arresto mayor), a fine of 3,800,000.00 with subsidiary imprisonment, and the payment of an indemnity to the
Spouses Casaclang in the same amount as the fine.2
Fourteen (14) days later, or on June 9, 2005, the petitioner filed a motion for new trial with the RTC, alleging that she
discovered new and material evidence that would exculpate her of the crime for which she was convicted.3
In an October 17, 2005 order, respondent Judge denied the petitioners motion for new trial for lack of merit.4
On November 16, 2005, the petitioner filed a notice of appeal with the RTC, alleging that pursuant to our ruling in Neypes v.
Court of Appeals,5 she had a "fresh period" of 15 days from November 3, 2005, the receipt of the denial of her motion for new
trial, or up to November 18, 2005, within which to file a notice of appeal.6
On November 24, 2005, the respondent Judge ordered the petitioner to submit a copy of Neypes for his guidance.7
On December 8, 2005, the prosecution filed a motion to dismiss the appeal for being filed 10 days late, arguing that Neypes is
inapplicable to appeals in criminal cases.8
On January 4, 2006, the prosecution filed a motion for execution of the decision.9
On January 20, 2006, the RTC considered the twin motions submitted for resolution.
On January 26, 2006, the petitioner filed the present petition for prohibition with prayer for the issuance of a temporary
restraining order and a writ of preliminary injunction to enjoin the RTC from acting on the prosecutions motions to dismiss the
appeal and for the execution of the decision.10
The Petition
The petitioner argues that the RTC lost jurisdiction to act on the prosecutions motions when she filed her notice of appeal
within the 15-day reglementary period provided by the Rules of Court, applying the "fresh period rule" enunciated in Neypes.
The Case for the Respondents
The respondent People of the Philippines, through the Office of the Solicitor General (OSG), filed a manifestation in lieu of
comment, stating that Neypes applies to criminal actions since the evident intention of the "fresh period rule" was to set a
uniform appeal period provided in the Rules.11
In view of the OSGs manifestation, we required the Spouses Casaclang to comment on the petition.12
In their comment, the Spouses Casaclang aver that the petitioner cannot seek refuge in Neypes to extend the "fresh period
rule" to criminal cases because Neypes involved a civil case, and the pronouncement of "standardization of the appeal periods
in the Rules" referred to the interpretation of the appeal periods in civil cases, i.e., Rules 40, 41, 42 and 45, of the 1997 Rules of
Civil Procedure among others; nowhere in Neypes was the period to appeal in criminal cases, Section 6 of Rule 122 of the
Revised Rules of Criminal Procedure, mentioned.13
Issue
The core issue boils down to whether the "fresh period rule" enunciated in Neypes applies to appeals in criminal cases.
The Courts Ruling
We find merit in the petition.
The right to appeal is not a constitutional, natural or inherent right it is a statutory privilege and of statutory origin and,
therefore, available only if granted or as provided by statutes. It may be exercised only in the manner prescribed by the
provisions of the law.14 The period to appeal is specifically governed by Section 39 of Batas Pambansa Blg. 129 (BP 129),15 as
amended, Section 3 of Rule 41 of the 1997 Rules of Civil Procedure, and Section 6 of Rule 122 of the Revised Rules of Criminal
Procedure.
Section 39 of BP 129, as amended, provides:
SEC. 39. Appeals. The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all
cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed
from: Provided, however, That in habeas corpus cases, the period for appeal shall be forty-eight (48) hours from the notice of
the judgment appealed from.
Section 3, Rule 41 of the 1997 Rules of Civil Procedure states:
SEC. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice of the judgment or final
order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal
within thirty (30) days from notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be allowed.
Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised
Rules of Criminal Procedure, though differently worded, mean exactly the same. There is no substantial difference between the
two provisions insofar as legal results are concerned the appeal period stops running upon the filing of a motion for new trial
or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was
this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly
addressed.

Section 6, Rule 122 of the Revised Rules of Criminal Procedure reads:
SEC. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion
for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or
his counsel at which time the balance of the period begins to run.
Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the
Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil
Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure
governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of
Rule 122 of the Revised Rules of Criminal Procedure, thus:
SEC. 3. How appeal taken. x x x x

In Neypes, the Court modified the rule in civil cases on the counting of the 15-day period within which to appeal. The Court
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction
categorically set a fresh period of 15 days from a denial of a motion for reconsideration within which to appeal, thus:
shall be by petition for review under Rule 42.

The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even
establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing
appeals to it and to the Court of Appeals, particularly Rules 42, 43 and 45, the Court allows extensions of time, based on
justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more.
To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.
Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the
Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on
appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme
Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the
motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. 16
The Court also reiterated its ruling that it is the denial of the motion for reconsideration that constituted the final order which
finally disposed of the issues involved in the case.
xxxx
Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for
review on certiorari under Rule 45.
Clearly, if the modes of appeal to the CA (in cases where the RTC exercised its appellate jurisdiction) and to this Court in civil
and criminal cases are the same, no cogent reason exists why the periods to appeal from the RTC (in the exercise of its original
jurisdiction) to the CA in civil and criminal cases under Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of
Rule 122 of the Revised Rules of Criminal Procedure should be treated differently.
Were we to strictly interpret the "fresh period rule" in Neypes and make it applicable only to the period to appeal in civil cases,
we shall effectively foster and encourage an absurd situation where a litigant in a civil case will have a better right to appeal
than an accused in a criminal case a situation that gives undue favor to civil litigants and unjustly discriminates against the
accused-appellants. It suggests a double standard of treatment when we favor a situation where property interests are at
stake, as against a situation where liberty stands to be prejudiced. We must emphatically reject this double and unequal
standard for being contrary to reason. Over time, courts have recognized with almost pedantic adherence that what is contrary
to reason is not allowed in law Quod est inconveniens, aut contra rationem non permissum est in lege.18

The raison dtre for the "fresh period rule" is to standardize the appeal period provided in the Rules and do away with the
Thus, we agree with the OSGs view that if a delay in the filing of an appeal may be excused on grounds of substantial justice in
confusion as to when the 15-day appeal period should be counted. Thus, the 15-day period to appeal is no longer interrupted
civil actions, with more reason should the same treatment be accorded to the accused in seeking the review on appeal of a
by the filing of a motion for new trial or motion for reconsideration; litigants today need not concern themselves with counting
criminal case where no less than the liberty of the accused is at stake. The concern and the protection we must extend to
the balance of the 15-day period to appeal since the 15-day period is now counted from receipt of the order dismissing a
matters of liberty cannot be overstated.1avvphi1
motion for new trial or motion for reconsideration or any final order or resolution.

In light of these legal realities, we hold that the petitioner seasonably filed her notice of appeal on November 16, 2005, within
While Neypes involved the period to appeal in civil cases, the Courts pronouncement of a "fresh period" to appeal should
the fresh period of 15 days, counted from November 3, 2005, the date of receipt of notice denying her motion for new trial.
equally apply to the period for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure,
for the following reasons:
WHEREFORE, the petition for prohibition is hereby GRANTED. Respondent Judge Rosa Samson-Tatad
is DIRECTED to CEASE and DESIST from further exercising jurisdiction over the prosecutions motions to dismiss appeal and for
First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods
execution of the decision. The respondent Judge is also DIRECTED to give due course to the petitioners appeal in Criminal Case
to appeal in a civil case and in a criminal case. Section 39 of BP 129 categorically states that "[t]he period for appeal from final
No. Q-01-105698, and to elevate the records of the case to the Court of Appeals for review of the appealed decision on the
orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice
merits.
of the final order, resolution, award, judgment, or decision appealed from." Ubi lex non distinguit nec nos distinguere
debemos. When the law makes no distinction, we (this Court) also ought not to recognize any distinction.17
No pronouncement as to costs.
SO ORDERED.
G.R. Nos. 163957-58 April 7, 2009
MUNIB S. ESTINO and ERNESTO G. PESCADERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 164009-11 April 7, 2009
ERNESTO G. PESCADERA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
For review before the Court under Rule 45 are the April 16, 2004 Decision1 and June 14, 2004 Resolution2 of the Sandiganbayan
in the consolidated Criminal Case Nos. 26192 and 26193 entitled People of the Philippines v. Munib S. Estino and Ernesto G.
Pescadera. In G.R. Nos. 163957-58, petitioners Munib S. Estino and Ernesto G. Pescadera appeal their conviction of violation of
Section 3(e), Republic Act No. (RA) 3019 or the Anti-Graft and Corrupt Practices Act for failure to pay the Representation and
Transportation Allowance (RATA) of the provincial government employees of Sulu. In G.R. Nos. 164009-11, petitioner
Pescadera alone appeals his conviction of malversation of public funds under Article 217 of the Revised Penal Code for failure
to remit the Government Service Insurance System (GSIS) contributions of the provincial government employees amounting to
PhP 4,820,365.30. In these consolidated appeals, petitioners pray for their acquittal.
The Facts
Estino was elected Vice-Governor of Sulu in the May 1998 elections along with Gov. Abdusakur Tan. On June 23, 1998, this
Court issued a status quo order in G.R. No. 133676, suspending the effects of the proclamation of Gov. Tan and ordering Vice-
Gov. Estino to assume the position of Governor until further orders. Thus, Estino acted as Governor of Sulu from July 27, 1998
up to May 23, 1999 when this Court lifted the suspension order against Gov. Tan. Ernesto G. Pescadera, on the other hand, was
Provincial Treasurer of Sulu during Estinos stint as Acting Governor.3
Pursuant to Commission on Audit (COA)-ARMM Office Order No. 99-165 dated August 26, 1999, a special audit team was
created upon the request of the Provincial Government of Sulu. An audit of the disbursement vouchers and payrolls for the
period starting July 27, 1998 up to May 23, 1999 was then conducted by COA State Auditor II Mona U. Balabaran and her team.
The COA Special Audit Report stated that there were anomalies in the payment of salary differentials, allowances, and benefits,
among others. The Ombudsman then filed three informations against petitioners, as follows:
CRIMINAL CASE NO. 26192
That sometime in or about January to May 1999, or shortly prior or subsequent thereto, in Jolo, Sulu and within the jurisdiction
of this Honorable Court, accused Munib S. Estino and Ernesto G. Pescadera, both high ranking public officers, being the Vice-
Governor and Provincial Treasurer of Sulu, respectively, taking advantage of their official positions and acting in relation to
their official functions, conspiring and confederating with each other, did there and then willfully, unlawfully and feloniously,
cause undue injury to the employees of the Provincial Government of Sulu through evident bad faith by failing to pay them
their salary differentials, Additional Compensation Allowance (ACA), Personal Emergency and Representation Allowance
(PERA), Representation and Travel Allowance (RATA), Mid-year Bonus, Cash Gift and Clothing Allowance in the total amount of
P8,435,625.34.
CONTRARY TO LAW.
CRIMINAL CASE NO. 26193
That sometime in or about July 1998 to May 1999, or shortly prior or subsequent thereto, in Jolo, Sulu and within the
jurisdiction of this Honorable Court, accused Munib S. Estino and Ernesto G. Pescadera, both high ranking public officers, being
the Vice Governor and Provincial Treasurer of Sulu, respectively, taking advantage of their official positions and acting in
relation to their official functions, conspiring and confederating with each other, did there and then, willfully, unlawfully and
feloniously, take, convert and misappropriate the GSIS monthly contributions and loan amortizations collected from the
provincial employees in the amount of P4,820,365.30 for their own personal benefit or advantage to the damage and prejudice
of the said employees and the government as well.
CONTRARY TO LAW.
CRIMINAL CASE NO. 26194
That sometime in or about May 1999, or shortly prior or subsequent thereto, in Jolo, Sulu and within the jurisdiction of this
Honorable Court, accused Munib S. Estino and Ernesto G. Pescadera, both high ranking public officers, being the Vice Governor
and Provincial Treasurer of Sulu, respectively, taking advantage of their official positions and acting in relation to their official
functions, conspiring and confederating with each other, did there and then, willfully, unlawfully and feloniously, cause undue
injury to the government through evident bad faith by withdrawing from Philippine National Bank-Jolo Branch the amount of
P21.5 million on 07 May 1999 out of the Internal Revenue Allotment of P28,268,578.00 which was deposited to the account of
Sulu Provincial Government on the same day and using the said amount to pay "various expenses" without, however,
specifying what the expenses are in violation of existing government accounting rules.
CONTRARY TO LAW. 4
Petitioners pleaded not guilty to the offenses charged in the informations.
Criminal Case No. 26192
During trial in the Sandiganbayan, Balabaran testified that based on the disbursement vouchers and payrolls she and her team
examined for the period January to May 1999, the Provincial Government of Sulu failed to pay the provincial government
employees their salary differentials, Additional Compensation Allowance (ACA), Personal Emergency and Representation
Allowance (PERA), and other benefits; that the Department of Budget and Management confirmed to the special audit team
that funds were released to the Provincial Government of Sulu for January to May 1999 so there was no reason why the money
was not released to the employees; and that the funds released came from the internal revenue allotment (IRA) of the
provincial government for the 1999 budget. The prosecution submitted that this failure violated Sec. 3(e) of RA 3019 which
provides:
Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.
In his defense, Estino testified that when he assumed office as Acting Governor of Sulu, he called for a general meeting of all
the heads of departments, as well as officials and employees to inform them that the remaining money of the provincial
government was PhP 47 only. He further informed them of the pending amortization for the loan from the Philippine National
Bank (PNB) payable from April to June 1998, and suggested that the salary differentials of all the government employees be
paid first while the GSIS remittance be deferred since the pending IRA for the provincial government was not yet released. As
to the ACA, PERA, and clothing allowance, he said that these were not paid because the budget for 1999 was not yet approved
and there was no provision for those items in the 1998 budget. The budget for 1999 was approved only on June 17, 1999 when
Estino was no longer the Acting Governor. The RATA, on the other hand, was provided for in the 1998 budget; hence, the 1998
budget was used in paying the RATA.5
Pescadera testified that the employees benefits were not paid because the 1999 budget was not yet approved then. Also, he
said that there was no appropriation for ACA and PERA in the 1998 budget; that the RATA for 1999 was paid; that the cash gift,
mid-year bonus, and clothing allowance for the period January to May 1999 were not paid as these were supposed to be paid
in December 1999; and that he was the Provincial Treasurer of Sulu up to May 1999 only.6
The Sandiganbayan found petitioners not guilty with regard to the charge of nonpayment of PERA, ACA, cash gift, mid-year
bonus, and clothing allowance. The court found that the Provincial Government of Sulu did operate under the 1998 reenacted
budget which had no appropriation for PERA and ACA. Petitioners were not held liable for nonpayment of the Year-End Bonus
and Cash Gift because these may be given from May 1 to May 31 of each year, while Estino held office as Acting Governor until
May 23, 1999 and Pescadera was the Provincial Treasurer until May 1999. As to the clothing allowance, no evidence was
presented as to when it should be given to the employees. Payment for the salary differentials for January to May 1999 could
not also be done since the 1999 budget was not yet approved.7
As regards the RATA, the Sandiganbayan held that petitioners defense of payment was an affirmative allegation that required
proof. The court stated:
x x x [N]o convincing evidence was presented by the defense to support their claim that they paid the same. Although accused
Pescadera testified that Exhibits "3-O" to "3-T", "3-W", "3-X", "3-HH" and "3-II" were vouchers showing payment of RATA for
the month of May 1999 for various officers of the Provincial Government of Sulu, the same were not signed by the claimants
thereof.
There is budget for the payment of RATA. The IRA pertaining to the province was regularly released. The non-payment thereof
constitutes a conscious and deliberate intent to perpetrate an injustice to the officials of the Provincial Government of Sulu.
Evident bad faith therefore exists.
xxxx
In the instant case, failure to pay the RATA constitutes an inaction which caused actual damage to the officials entitled thereto,
the amount of which was equivalent to the actual amount of the RATA that was due them for the period January to May 1999.
The information alleged that the two accused committed this offense by conspiring and confederating with each other. In
conspiracy, it is essential that there must be unity of purpose and unity in the execution of the unlawful objective. These were
present in the instant case. Both accused knew that they failed to pay the RATA to the officers entitled thereto. 8
The aforesaid judgment is the subject of the appeal docketed as G.R. Nos. 163957-58.
Criminal Case No. 26193
Auditor Balabaran testified that the GSIS premiums for the government and personal share of officials and employees of the
Provincial Government of Sulu were deducted from their salaries, but upon confirmation with the Branch Manager of the GSIS
in Jolo, the audit team learned that the GSIS premiums were not remitted. According to Estino, however, the audit reports
showed that he and Pescadera did not malverse the funds of the Provincial Government. In addition, Pescadera testified that
when Estino assumed office as Acting Governor, the Provincial Government of Sulu was already indebted to the GSIS for its
failure to remit the said GSIS monthly remittances which amounted to PhP 4 million. Pescadera stated that Estino called a
general assembly of all the officers and employees of the provincial government to discuss the cash operation of Sulu. In that
meeting, the officers and employees decided to prioritize the payment of the salary differentials first, followed by the loan
amortization to the PNB, and lastly, the GSIS remittances. Pescadera added that the provincial government intended to pay or
remit the accrued GSIS monthly remittances as soon as the cash position of the province improves and the 10% of the IRA is
released.9
Before the Sandiganbayan, the prosecution charged petitioners with malversation of public funds under Art. 217 of the Revised
Penal Code. The Sandiganbayan consequently exonerated Estino but convicted Pescadera. The court held:
In the case at bar, there was evidence that GSIS contributions for the period July 1998 to May 1999 consisting of employee
share and loan amortizations were deducted from the salaries of the employees of the province. The 1998 reenacted budget
provided for GSIS Premiums (Government Share) and the IRA for the province was regularly released by the DBM. These GSIS
contributions were not remitted. In fact contrary to accused Estinos claim, Provincial Auditor Nora A. Imlan stated in her 1998
and 1999 Annual Audit Report that the Province of Sulu had unremitted GSIS contributions for CY 1998 and 1999.
Accused Pescadera, being then the Provincial Treasurer, was the public officer charged with the disbursement of GSIS funds for
remittance to the GSIS. He failed to disburse and to remit it to the GSIS at the time it became due. He failed to account for it
upon demand by Provincial Auditor Nora A. Imlan and by the Special Audit Team. It is now incumbent upon the accused to
rebut the presumption of conversion.
xxxx
However, no evidence was presented to support the claim that the employees agreed to prioritize the payment of PNB loan
amortization. Even if there were such an agreement, it would still be contrary to Section 6(b) of the Government Service
Insurance System Act of 1997 (R.A. 8291) which provides:
Each employer shall remit directly to the GSIS the employees and employers contributions within the first ten (10) days of the
calendar month to which the contributions apply. The remittance by the employer of the contributions to the GSIS shall take
priority over and above the payment of any and all obligations, except salaries and wages of its employees.
Insufficiency of funds of the province is not a valid defense. The fact remained that the GSIS contributions consisting of
employee share and loan amortizations were deducted from the salaries of the employees.
While it was true that the budget for 1999 was approved only on June 2, 1999, it was also true that on January to May 1999,
the province of Sulu operated under the 1998 reenacted budget. Further, the reenacted budget provided for GSIS Premiums
(Government Share). The DBM letter dated October 28, 1999 (Exhibit "A-39") and Summary of Releases of IRA for July 1998 to
May 1999 (Exhibit "A-40") clearly showed that the IRA pertaining to the province was regularly released.
Moreover, prosecution witness Mona Balabaran correctly testified that the Trial Balance, Journal of Checks Issued and Report
of Checks Issued showed only the sum total of all the money transactions of the Province of Sulu. These reports did not contain
the cash status vis--vis the mandatory obligations and the details on where the fund of the province was spent. Clearly,
accused Pescadera was not able to rebut the presumption of conversion.10
With respect to Estino, however, the Sandiganbayan did not find any conspiracy with Pescadera. The court held that it was
Pescaderas duty as the Provincial Treasurer to advise Estino, then Acting Governor, and other local government officials
regarding the disposition of local government funds and other matters related to public finance. It was found that Pescadera
failed to inform Estino that the GSIS contributions must be remitted directly to the GSIS within the first 10 days of the calendar
month following the month to which the contributions apply.11 Also, the Sandiganbayan explained that even if Estino was
Pescaderas co-signatory in the checks, mere signature or approval is not enough to sustain a finding of conspiracy, based
on Sabiniano v. Court of Appeals.12
Pescaderas appeal of his conviction is the subject of G.R. Nos. 164009-11.
Criminal Case No. 26194
Anent the last charge, Balabaran testified that internal control was violated when petitioners signed the vouchers without the
signature of Provincial Accountant Nestor Lozano. As a result, the transactions were not recorded in the book of accounts. She
further stated that the amount of cash in the trial balance was overstated. The audit team did not examine the monthly trial
balance, the journal and analysis of obligations, the journal of checks issued, the report of checks issued, and the journal of
cash disbursement because all these documents merely contained the sum total, whereas the disbursement vouchers and
payrolls stated the particular transactions that transpired which could help them discover any anomaly.13
Petitioners were charged with violation of RA 3019, Sec. 3(e). In his defense, Estino testified that the disbursement vouchers
for the PhP 21.5 million cash advances he approved were supported with documents; that the 5% of the 10% retention of the
IRA of the national government was paid only in May 2002; and that he was authorized by the Provincial Board to withdraw
PhP 21.5 million on May 7, 1999. Pescadera, on the other hand, testified that the cash advances amounting to PhP 21.5 million
from the PNB was accompanied by vouchers and supporting documents; that the said amount was used in paying specific
obligations of the Provincial Government of Sulu; that the signature of the provincial accountant did not appear on the cash
advances and vouchers because during the withdrawal of the amounts, the provincial accountant was out of town; and that
the provincial auditor of Sulu allowed said cash advances.14
RA 3019, Sec. 3(e) has three elements: (1) the accused is a public officer discharging administrative, judicial, or official
functions; (2) the accused must have acted with manifest partiality, evident bad faith, or inexcusable negligence; and (3) the
accuseds action caused any undue injury to any party, including the government, or giving any private party unwarranted
benefits, advantage, or preference in the discharge of his or her functions.
The Sandiganbayan found only the first two elements in this case. First, petitioners were public officers at the time in
question. Second, bad faith was evident in petitioners act of withdrawing amounts without the signature of the provincial
accountant. This violated Sec. 344 of the Local Government Code and Secs. 157 and 168 of the Government Accounting and
Auditing Manual. Nevertheless, the government did not suffer actual damages from the withdrawal of PhP 21.5 million. While
said cash advances did not specify the particulars of payment, the documentary exhibits attached to the cash advances, i.e.,
disbursement vouchers, Request for Obligation of Allotment, Summary of Payrolls, Time Book, and Payrolls, sufficiently
itemized the obligations to be paid by the cash advances. Since the prosecution failed to prove any damage or injury to the
Provincial Government of Sulu, petitioners were acquitted of the crime charged.15
The Ruling of the Sandiganbayan
The dispositive portion of the Sandiganbayans April 16, 2004 judgment reads:
WHEREFORE:
I. In Criminal Case No. 26192, the Court finds accused MUNIB S. ESTINO and ERNESTO G. PESCADERA, both GUILTY, beyond
reasonable doubt, for violation of Sec. 3(e) of R.A. 3019, and pursuant to Section 9 thereof, and are hereby sentenced to suffer
the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence Law, six (6) years and one (1) month as minimum, up to fifteen
(15) years, as maximum; and,
(B) Perpetual Disqualification from Public Office.
II. In Criminal Case No. 26193, this Court finds accused ERNESTO G. PESCADERA, GUILTY, beyond reasonable doubt, of the
crime of malversation of public funds, and is hereby sentenced to suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence Law, twelve (12) years, five (5) months and eleven (11) days
of reclusion temporal, as minimum, up to twenty years (20) years of reclusion perpetua, as maximum;
(B) Perpetual Special Disqualification;
(C) Fine of FOUR MILLION EIGHT HUNDRED TWENTY THOUSAND THREE HUNDRED SIXTY-FIVE PESOS AND THIRTY CENTAVOS
(Php4,820,365.30), with subsidiary imprisonment in case of insolvency;
(D) All the accessory penalties provided for under the law; and,
(E) To pay the cost of the suit.
Accused PESCADERA is likewise ordered to restitute the amount of FOUR MILLION EIGHT HUNDRED TWENTY THOUSAND
THREE HUNDRED SIXTY-FIVE PESOS AND THIRTY CENTAVOS (Php4,820,365.30) to the Provincial Government of Sulu.
With respect to MUNIB S. ESTINO, for failure of the Prosecution to prove his [guilt] beyond reasonable doubt, he is hereby
ordered ACQUITTED of the crime of malversation of public funds.
III. In Criminal Case No. 26194, for failure of the Prosecution to prove the guilt of accused MUNIB S. ESTINO and ERNESTO G.
PESCADERA beyond reasonable doubt, both accused are hereby ordered ACQUITTED.16
Petitioners filed a Motion for Reconsideration and a Supplemental Motion for Reconsideration and New Trial which were
denied in the June 14, 2004 Sandiganbayan Resolution. Thus, they filed these petitions.
The Issues
WHETHER OR NOT PETITIONERS FAILED TO PAY THE RATA AND ARE THUS GUILTY OF VIOLATING SEC. 3(e) OF RA 3019
WHETHER OR NOT PETITIONER PESCADERA IS GUILTY OF MALVERSATION OF PUBLIC FUNDS FOR FAILURE TO REMIT THE GSIS
CONTRIBUTIONS
The Courts Ruling
G.R. Nos. 163957-58
Petitioners Estino and Pescadera point out that the basis of the information for Criminal Case No. 26192 was the COA Report,
which reads:
2. On the allegation that no payments were intended for the salary differentials, ACA, PERA and other benefits of employees
of the Provincial Government of Sulu for the period covered from January, 1999 to May, 1999
It was noted that no benefits were paid to the employees of Sulu Provincial Office for the period covered from January, 1999 to
May, 1999 based on the submitted paid disbursement vouchers (Annex E).
For the month of May 1999, the Provincial Government of Sulu received a total allotment of P28,268,587.00, which includes
January, 1999 to April, 1999 releases for IRA differentials (See Annex B). The amount intended for the said benefits were
disbursed other than specific purpose for which these are appropriated (Annex C).17
Petitioners note that the COA Report does not state that they did not pay the RATA under the reenacted budget of 1998. The
prosecution witness, Auditor Balabaran, testified that the COA Report pertains to the nonpayment of ACA, PERA, and other
benefits provided for in the 1999 budget. The 1999 budget, however, was not approved during the incumbency of Estino as
Acting Governor. In the cross-examination of Balabaran, she testified as follows:
CROSS-EXAMINATION:
(Atty. Quadra)
Q. I show to you, Madam Witness, your Audit Report dated January 12, 2000, and I call your attention on the finding in page 5
thereof which reads: "On the allegation that no payments were made intended for the salary [differentials], ACA, PERA, and
other benefits of the employees of the Provincial Government of Sulu for the period covered from January 1999 to May 1999."
Now, it is stated here that no payments of the said benefits of the employees were made from January 1999 to May 1999. My
question is, when you said benefits of the employees you are referring to the benefits of the employees provided for in the
1999 Budget? Please go over this Report.
(Witness looking at the document)
A. You want me to explain?
AJ Palattao: What benefit are you referring?
A. We are referring to the benefits that was to be paid, your Honor, the ACA, the PERA, and the other benefits.
Q Yes, and those benefits that you are referring to are the benefits provided for in the Annual Budget for the Year 1999?
AJ Palattao: Are you referring to a benefit granted to the employees under the 1999 Annual Budget? Yes or no?
A. The benefits that are intended to the employees for the year 1999.
Q. 1999. You are not referring to the benefits of the employees provided for in the 1998 budget?
A. Yes, it is very clear, January 1999 to May 1999.
Q. It is only in 1999?
A. Yes, Sir. [TSN, p. 5 December 6, 2000]18
Petitioners insist that there is enough evidence to show that the RATA provided for in the 1998 reenacted budget was paid for
the period January to May 1999. In their Supplemental Motion for Reconsideration and Motion for New Trial, petitioners
presented to the Sandiganbayan a Certification dated May 11, 2002 issued by the Provincial Auditor Abdurasad J. Undain,
stating that the RATA for the period January to May 1999 was paid to the officials entitled to it and that the GSIS premiums
pertaining to prior years were also settled by the Provincial Government of Sulu. In support of this certification, petitioners
submitted sworn statements of the provincial officials entitled to RATA, stating that they were paid such allowance from
January to May 1999 and that they did not have any complaint to its alleged nonpayment.19 They also submitted 99 certified
true copies of the Disbursement Vouchers showing the payment of the RATA from January to May 1999 provided for in the
1998 reenacted budget. Petitioners presented these vouchers only in their Supplemental Motion for Reconsideration and/or
Motion for New Trial allegedly because they thought that the COA Report pertained only to the benefits provided in and to be
paid with the 1999 budget. They may have been misled when Auditor Balabaran did not testify on the alleged nonpayment of
the RATA for January to May 1999 with the reenacted budget of 1998.
Anent the Sandiganbayans finding that the vouchers showing payment of RATA for May 1999 were not signed by the
claimants, petitioners explain that the actual release of RATA is the responsibility of the cashier of the province. Petitioners
claim that they could not be faulted for the failure of the cashier to require the claimants to sign the receipt of payment.
Furthermore, the claimants in Exhibits "3-O" to "3-T," "3-W," "3-X," "3-HH," and "3-II" all executed sworn statements that they
received their RATA.
Petitioners further point out that the Sandiganbayan justices who heard and tried their case were not the ones who rendered
the questioned decision. The trial was conducted by Justices Narciso S. Nario, Rodolfo G. Palattao, and Nicodemo T. Ferrer,
while the decision was rendered by Justices Gregory T. Ong, Norberto Y. Geraldez, and Efren N. dela Cruz.
On the other hand, the Office of the Special Prosecutor asserts that the petition should be dismissed because it raises
questions of fact not proper in an appeal by certiorari. It also asserts the following: Even if the petition is given due course,
there are factual and legal bases for the conviction. Although the term "RATA" was not mentioned in the COA Report, said
allowance was contemplated by the auditors in their use of the term "benefits." Also, the sworn statements of the officials on
their receipt of the RATA and the certification of the Provincial Auditor to the effect that the RATA has been paid are belated
and unsubstantiated. These were submitted only in petitioners Supplemental Motion for Reconsideration, thus implying that
payments of the RATA were made after the conviction of petitioners. Likewise, the unsigned disbursement vouchers deserve
no merit because of the irregularities in these documents. Some do not bear the dorsal portion of the vouchers or the
signature of the Provincial Auditor, while others were signed by persons other than the claimants without any proof of their
authority from the principals. The vouchers also show that the RATA was paid in cash instead of through checks in violation of
Presidential Decree No. 1445.
The Case Should be Remanded to the Sandiganbayan
Petitioners defense is anchored on their payment of RATA, and for this purpose, they submitted documents which allegedly
show that they paid the RATA under the 1998 reenacted budget. They also claim that the COA Report did not sufficiently prove
that they did not pay the RATA because the alleged disbursement vouchers, which were supposed to be annexed to the COA
Report as proof of nonpayment of RATA, were not submitted with said report.
We resolve to grant petitioners a chance to prove their innocence by remanding the case to the Sandiganbayan for a new trial
of Criminal Case No. 26192. Rule 121 of the Rules of Court allows the conduct of a new trial before a judgment of conviction
becomes final when new and material evidence has been discovered which the accused could not with reasonable diligence
have discovered and produced at the trial and which if introduced and admitted would probably change the
judgment.20 Although the documents offered by petitioners are strictly not newly discovered, it appears to us that petitioners
were mistaken in their belief that its production during trial was unnecessary. In their Supplemental Motion and/or Motion for
New Trial, they stressed that they no longer presented the evidence of payment of RATA because Balabaran testified that the
subject of the charge was the nonpayment of benefits under the 1999 budget, without mention of the RATA nor the 1998
reenacted budget. It seems that they were misled during trial. They were precluded from presenting pieces of evidence
that may prove actual payment of the RATA under the 1998 reenacted budget because the prosecutions evidence was
confined to alleged nonpayment of RATA under the 1999 budget.
In this instance, we are inclined to give a more lenient interpretation of Rule 121, Sec. 2 on new trial in view of the special
circumstances sufficient to cast doubt as to the truth of the charges against petitioners. The situation of the petitioners is
peculiar, since they were precluded from presenting exculpatory evidence during trial upon the honest belief that they were
being tried for nonpayment of RATA under the 1999 budget. This belief was based on no less than the testimony of the
prosecutions lone witness, COA Auditor Mona Balabaran. Even Associate Justice Palattao of the Sandiganbayan had to clarify
from Balabaran which budget she was referring to. Balaraban, however, made it very clear that the unpaid benefits were those
provided under the 1999 budget, to wit:
AJ Palattao: Are you referring to a benefit granted to the employees under the 1999 Annual Budget? Yes or no?
A. The benefits that are intended to the employees for the year 1999.
Q. 1999. You are not referring to the benefits of the employees provided for in the 1998 budget?
A. Yes, it is very clear, January 1999 to May 1999.
Q. It is only in 1999?
A. Yes, Sir. [TSN, p. 5 December 6, 2000]21 (Emphasis supplied.)
From the foregoing discourse, it is understandable how petitioners could have thought that they need not present any more
evidence to prove payment of the RATA under the 1998 budget. Apparently, the COA Auditor who prepared the report and
testified on it established that the trial was about nonpayment of benefits under the 1999 budget. That budget was not
approved during petitioners stint in Sulu. Faced with conviction, nevertheless, they deserve a chance to prove their innocence.
This opportunity must be made available to the accused in every possible way in the interest of justice. Hence, petitioners
should be allowed to prove the authenticity of the vouchers they submitted and other documents that may absolve them. A
remand of the case for a new trial is in order. This procedure will likewise grant the prosecution equal opportunity to rebut
petitioners evidence.
In granting petitioners motion for new trial, we reiterate our pronouncement in Cano v. People:
It is x x x equally settled that rules of procedure are not to be applied in a very rigid, technical sense and are used only to help
secure substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be defeated. They should
be liberally construed so that litigants can have ample opportunity to prove their claims and thus prevent a denial of justice
due to technicalities.22
More importantly, we have settled that procedural rules can be suspended if matters of life, liberty, honor, and property are at
stake, thus:
In Ginete vs. Court of Appeals, we specifically laid down the range of reasons which may provide justifications for a court to
resist a strict adherence to procedure and suspend the enforcement of procedural rules. Among such reasons x x x are: (1)
matters of life, liberty, honor or property; (2) counsels negligence without any participatory negligence on the part of the
client; (3) the existence of special or compelling circumstances; (4) the merits of the case; (5) a cause not entirely attributable
to the fault or negligence of the party favored by the suspension of the rules; and (6) a lack of any showing that the review
sought is merely frivolous and dilatory.23
We have also held that:
Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly
recognized in the Constitution, to promulgate rules concerning pleading, practice and procedure in all courts. In proper cases,
procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried
because of a rigid and formalistic adherence to such rules. x x x
xxxx
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and
rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must
always be avoided. x x x Time and again, this Court has suspended its own rules and excepted a particular case from their
operation whenever the higher interests of justice so require.24
While the information states that the accused failed to pay the RATA sometime in or about January to May 1999, there was no
mention which budget the RATA was supposed to be sourced. Petitioners relied on the COA Auditors testimony that they were
being tried for nonpayment of benefits under the 1999 budget. The Special Audit Report does not also distinguish the budget
source but upon the testimony of Balabaran, it was established that the source was the 1999 budget. Balabaran verified this
when cross-examined by Sandiganbayan Justice Palattao. This distinction is material because conviction or acquittal depends
on which budget source the information referred to. Thus, even if the 1998 budget was automatically reenacted in 1999, if the
trial was clearly about the nonpayment of benefits under the 1999 budget as established by the prosecution, then petitioners
could not be faulted for proceeding accordingly. The prosecution could have been clearer about the budget source through re-
direct examination of Balabaran but it did not choose to do so. As always in criminal cases, the burden is on the prosecution to
establish guilt beyond reasonable doubt based on sufficient information. It is not the responsibility of the accused to produce
exculpatory evidence in a trial that does not demand it, as in this peculiar case where the prosecution failed to be clear about
how they have allegedly been negligent in paying employee benefits.
The evidence sought to be introduced by the petitioners were presented in their Supplemental Motion for Reconsideration.
Obviously, it was after their conviction that petitioners realized their mistake and belatedly presented their evidence which
consist of (1) a certification dated May 11, 2004 by Abdurasad J. Undain, Provincial Auditor of Sulu, attesting to the payment of
the RATA for the period January to May 1999 to officials of Sulu who were entitled to such benefit; (2) disbursement vouchers
showing payment of RATA to provincial employees of Sulu for the period January to May 1999; and (3) sworn statements from
the claimants of the RATA attesting to their receipt of RATA from January to May 1999. The Sandiganbayan noted how some of
the disbursement vouchers were not signed by the claimants. Petitioners, however, were not given the chance to explain this
alleged irregularity. The Sandiganbayan also completely disregarded the sworn statements from the claimants of the RATA
which state that they did not have any complaint to its alleged nonpayment. It should be remembered that petitioners are
being charged with violation of Sec. 3(e) of RA 3019, an element of which is undue injury to any party. If the claimants of the
RATA, the supposed injured parties, state that they received the RATA and have no complaints to its nonpayment, then these
sworn statements could absolve petitioners. These documents should be weighed properly, its authenticity duly established by
the accused, and the prosecution should be given the chance to rebut these pieces of evidence. Since we are not a trier of
facts, we should remand this case to the Sandiganbayan.
As the court of last resort, we cannot and should not be hasty in convicting the accused when there are factual circumstances
that could save them from imprisonment. In this case, the accused should be afforded the chance to prove the authenticity of
documents which have a tendency to prove their innocence. Procedural rules should be interpreted liberally or even set aside
to serve the ends of justice. Hence, we order the remand of Criminal Case No. 26192 to the Sandiganbayan for a new trial.
G.R. Nos. 164009-11
Petitioner Pescaderas defense consists of two arguments: (1) that the elements of the crime of malversation under Art. 217 of
the Revised Penal Code were not present; and (2) that his failure to remit the GSIS contributions was due to the prioritization
of other obligations of the Provincial Government of Sulu.
Pescadera claims that the elements of the crime of malversation were not met because there was no demand on him by the
Provincial Auditor or by the Special Audit Team to account for the GSIS contributions. He submits that the prima
facie presumption of malversation is not applicable when no written demand for accounting was given to him. Assuming that
there was a demand, there is allegedly no direct evidence showing misappropriation of PhP 4,820,365.30. He asserts that he
did not withdraw such amount from the provincial government funds. He submitted documents that show how the funds of
the Provincial Government of Sulu were spent from July 1998 to May 23, 1999. These documents consisted of the monthly trial
balance from August 31, 1998 to May 31, 1999; certified true copies of the journal of checks issued from July 1998 to May 7 to
30, 1999; certified true copies of the Treasurers Journal Cash Disbursements from August 1998 to February 1999; and annual
Audit Report for 1998 and 1999. Pescadera claims that the COA Special Audit Team merely examined the disbursement
vouchers and the payrolls and found that the only irregularity was the non-remittance of the GSIS contributions and loan
amortization.
Art. 217 of the Revised Penal Code provides:
Art. 217. Malversation of Public Funds or PropertyPresumption of Malversation. Any public officer who, by reason of the
duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or
consent, or through abandonment or negligence, shall permit any other person to take such funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation of such funds or property, shall suffer:
xxxx
The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand
by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses.
There is no dispute that Pescadera is a public officer who has control or custody of public funds and, thus, accountable for
them. As to whether Pescadera misappropriated the GSIS premiums, he argues that the presumption of malversation does not
apply because there was no demand on him.
The Sandiganbayan held that Pescadera failed to account for the GSIS premiums when demand was made by Provincial Auditor
Nora Imlan and the Special Audit Team, citing Exhibit "12-c." Pescadera points out, however, that Exhibit "12-c" referred to the
"State Auditors Opinion on the Financial Statements" herein reproduced:
The auditor rendered a qualified opinion on the fairness of the presentation of the financial statements due to managements
failure to conduct physical inventory on its fixed assets and inventories as discussed in finding no. 1 and inability to conduct
inspection on the infra projects under the 20% Development Fund.

SUMMARY OF SIGNIFICANT FINDINGS AND RECOMMENDATIONS

During the year under audit, the following are the findings and recommendations, to wit:

xxxx

2. Non-remittances [in] 1998 of various trust liabilities in violation of laws, rules, and regulations.

Require the Provincial Treasurer to remit all trust liabilities such as GSIS premiums/loans repayments/state insurance,
MEDICARE AND PAGIBIG.25

We agree with Pescadera that this is not the demand contemplated by law. The demand to account for public funds must be
addressed to the accountable officer. The above-cited letter was made by the Provincial Auditor recommending to the
Chairperson of the COA to "require the Provincial Treasurer of Sulu to remit all trust liabilities such as GSIS premium/loans,
repayments/state insurance, Medicare and Pag-ibig." Nowhere in the pleadings did the Special Prosecutor refute the lack of a
formal demand upon Pescadera to account for the GSIS premiums. Pescadera even denies being informed of the conduct of
the audit, an assertion which was not refuted by the prosecution. It can be concluded then that Pescadera was not given an
opportunity to explain why the GSIS premiums were not remitted. Without a formal demand, the prima facie presumption of
conversion under Art. 217 cannot be applied.

While demand is not an element of the crime of malversation,26 it is a requisite for the application of the presumption. Without
this presumption, the accused may still be proved guilty under Art. 217 based on direct evidence of malversation. In this case,
the prosecution failed to do so. There is no proof that Pescadera misappropriated the amount for his personal use.

The elements of Art. 217 are: (1) the offender is a public officer, (2) he or she has custody or control of the funds or property by
reason of the duties of his office, (3) the funds or property are public funds or property for which the offender is accountable,
and, most importantly, (4) the offender has appropriated, taken, misappropriated or consented, or, through abandonment or
negligence, permitted another person to take them. The last and most important element of malversation was not proved in
this case. There is no proof that Pescadera used the GSIS contributions for his personal benefit. The prosecution merely relied
on the presumption of malversation which we have already disproved due to lack of notice. Hence, the prosecution should
have proven actual misappropriation by the accused. Pescadera, however, emphasized that the GSIS premiums were applied in
the meantime to the salary differentials and loan obligations of Sulu, that is, the GSIS premiums were appropriated to another
public use. Thus, there was no misappropriation of the public funds for his own benefit. And since the charge lacks one
element, we set aside the conviction of Pescadera.

WHEREFORE, the Decision dated April 16, 2004 of the Sandiganbayan in Criminal Case No. 26192 is SET ASIDE and the case
is REMANDED to the Sandiganbayan for new trial on the alleged nonpayment of RATA. The Decision dated April 16, 2004 of the
Sandiganbayan in Criminal Case No. 26193 is REVERSED and SET ASIDE, and Ernesto G. Pescadera is ACQUITTED of the charge
against him. Costs against petitioners.

SO ORDERED.