[ G.R. No.
 188680, February 15, 2016 ] before the RTC of Palawan an Information [8] against Alonzabe
LITA G. ALONZABE, PETITIONER, V. HON.
TORIBIO E. ILAO, JR. AND JESUS MAGTANGGOL
USMAN, RESPONDENTS; UDK -14243 - LITA G.
ALONZABE, PETITIONER, V. JESUS MAGTANGGOL
USMAN, RESPONDENT
Sirs/Mesdames:
Please take notice that the Court, First Division, issued a
Resolution dated February 15, 2016 which reads as follows:
"G.R. No. 188680 - LITA G. ALONZABE, Petitioner, v.
HON. TORIBIO E. ILAO, JR. and JESUS MAGTANGGOL
USMAN, Respondents; UDK -14243 - LITA G.
ALONZABE, Petitioner, v. JESUS MAGTANGGOL
USMAN, Respondent.
The consolidated cases [1] now before the Court center upon the
petition for review on certiorari filed by Lita G. Alonzabe,
[2]
 which seeks the reversal of the Decision [3] dated December
21, 2007 of the Court of Appeals in CA-G.R. SP No. 84209.
Said decision affirmed the April 2, 2004 Order[4] of the
Regional Trial Court (RTC) of Palawan, Branch 52 in
Criminal Case No. 18359, which denied reconsideration of a
previous order of the trial court that disallowed Alonzabe's
motion to quash the information in said case.
The Fact
On March 12, 2003, Jesus Magtanggol Usman filed before the
Office of the Provincial Prosecutor of Palawan a complaint-
affidavit (Sakdal-Salaysay)[5] against Alonzabe, charging the
latter of committing estafa punishable under Article 315,
paragraph l(b) of the Revised Penal Code.
Usman alleged that he is the manager of the Agricultural
Supplies Section of the Ching Usman Trading, Inc. In view of
the tight competition in their business and in order to increase
their sales, he was permitted by his superiors to entrust their
stocks of fertilizers and pesticides to certain individuals for the
latter to sell to farmers in exchange of a commission or for
profit. If said individuals are unable to sell the products, they
are obligated to return the same after a period of usually 30
days. Alonzabe was one such individual.
From November 23, 2001 up to May 23, 2002, Usman alleged
that he gave Alonzabe a total of 306 sacks of different kinds of
fertilizers and 110 bottles or kilos of various kinds of
pesticides worth P169,780.00. Alonzabe signed trust receipt
agreements[6]  as proof that the products were indeed entrusted
to her. Said agreements were summarized[7] as follows:
Xxx
Usman claimed that the 30-day deadlines stated in the
agreements were not complied with as Alonzabe kept on
asking for extensions of time for her to remit the proceeds of
the products she sold. After the lapse of many months that
Alonzabe failed to deliver on her promise to pay, Usman
sought the advice of the president of their company. The latter
wrote to Alonzabe, asking for the payment of goods already
sold and the return of the products unsold. Alonzabe, however,
failed to reply within the period granted to her. Thus, Usman
was constrained to file the complaint against her.
During the preliminary investigation of the case, Alonzabe did
not file a counter-affidavit.
Subsequently, on June 4, 2003, the provincial prosecutor filed
for estafa under Article 315, paragraph l(b) of the Revised
Penal Code, as amended. The crime was said to be committed
as follows:
That sometime during the period between November 23, 2001
and May 23, 2002, in the Poblacion, Municipality of Narra,
Province of Palawan, Philippines, and within the jurisdiction
of this Honorable Court, the said accused having received 306
sacks of different kinds of fertilizer and 110 bottles or kilos of
different kinds of pesticide from CHING USMAN TRADING,
INC. thru Agricultural Supplies Section Manager JESUS
MAGTANGGOL J. USMAN, amounting to PI69,780.00, for
the purpose of selling the same, with the express obligation to
deliver the proceeds thereof or to return the unsold fertilizer
and pesticide after 30 days to the said owner, but the said
accused, with grave abuse of confidence, did then and there
wilfully, unlawfully and feloniously misappropriate, misapply
and convert to her own personal use and benefit the
aforestated amount, and that despite repeated demands made
by Jesus Magtanggol J. Usman for her to deliver the proceeds
or to return the fertilizer and the pesticide, she failed and
refused and still fails and refuses to do the same, to the
damage and prejudice of CHING USMAN TRADING, INC.,
in the amount of ONE 'HUNDRED SIXTY-NINE
THOUSAND SEVEN HUNDRED EIGHTY PESOS (PI
69,780.00) Philippine currency.
The case was docketed as Criminal Case No. 18359.
Alonzabe thereafter filed a Motion for Reinvestigation of the
case. She averred that she was completely surprised to know
of the filing of the case considering that she had been paying
the amount of the goods that she allegedly misappropriated for
her benefit and such payments were duly received by Usman.
Alonzabe opted not to file her counter-affidavit as Usman
purportedly assured her that the case will not be pursued if she
pays her outstanding obligation. Her honest intention and good
faith to comply with the trust receipt agreements were further
supported by the fact that she made payments even after the
filing of the Information for estafa, which were acknowledged
by Usman. Alonzabe argued that the prior agreements with
Usman were therefore novated by their new agreement, thus
eliminating the element of deceit. Alonzabe argued that the
case was merely civil in nature.
The trial court denied the above motion.
On November 11, 2003, Alonzabe filed a Motion for Bill of
Particulars, which sought to clarify the alleged ambiguity as to
the exact quantity of pesticides involved and the total amount
of the merchandise, given her subsequent payment of
P90,000.00 that should have been deducted from the
P169,780.00 stated in the information. The trial court granted
this motion and Usman submitted his compliance.
On January 27, 2004, Alonzabe filed a Motion to Quash the
information as the facts charged therein do not constitute an
offense. She stated that the trust receipt agreements that were
the basis of the Information against her were worded as
follows:
The merchandise specified at the opposite portion thereof and
in consideration hereof, the undersigned hereby agrees to hold
said merchandise in storage as the property of the
TRUSTOR. With the liberty to sell the same for cash for the
TRUSTOR'S account and to hand the portion of the
proceeds from the sale of the merchandise as represented by
the TRUSTOR'S billing price for merchandise received or
to return the said merchandise in good and saleable
condition within from [sic] date of delivery if not sold.
In case of controversy, or litigation, Venue shall be in
_______________
Trustee
_______________ elements necessary to establish the crime charged, i.e., estafa
Signature.[9] through misappropriation under Article 315, paragraph l(b) of
the Revised Penal Code. The Court of Appeals also ruled that
Alonzabe pointed out that the trust receipt agreements did not
it was not essential or indispensable that the information
provide for the payment of interest on the unpaid balance of
particularly mentioned that the TRAs were violated as the
the value of the goods. However, she claimed that when the
violation thereof only served to highlight the manner or mode
balances of the value of the goods were billed, she paid an
by which Alonzabe perpetrated the act of alleged defraudation.
unconscionable interest of 3% per day in addition to the
principal obligation. She attached to her motion copies of
The Court of Appeals posited that Alonzabe had nobody to
provisional receipts that purportedly showed payments of said
blame but herself when she opted not to file a counter-affidavit
interest rate.[10] Alonzabe then argued that "[i]t is axiomatic
before the prosecutor. Her allegations that she made
from the foregoing revelation that the trust receipt agreements
substantial payments to Usman and that the trust receipt
were executed as a security for the goods entrusted to the
agreements and the usurious daily interest rates on her
accused, hence the transaction was that of loan." [11]
principal obligation evidence a pure loan transaction were all
held to be belated claims that the prosecutor could not have
Usman opposed the above motion, arguing inter alia that the
considered. Said claims were matters of defense that are best
provisional receipts attached by Alonzabe to her motion to
ventilated during a trial on the merits of the case.
quash were matters aliunde that should not be considered by
the trial court in resolving such motion. Usman averred that
Furthermore, the appellate court ruled that a special civil
the prosecution has not made any admission regarding the
action for certiorari is not the proper remedy to assail the
entries on the provisional receipts. What was so far admitted
denial of a motion to quash an information. The proper
was the partial payment of P90,000.00, which payment neither
procedure to be followed in such a case is for the accused to
changed the nature of the accusation against Alonzabe nor
enter a plea, go to a trial and reiterate the special defenses
served to novate her criminal liability to convert it to a civil
contained in his motion to quash and, if after trial on the
one.
merits, an adverse decision is rendered, to appeal therefrom in
the manner authorized by law.
Usman stressed that Alonzabe changed the theory of her
defense by directly attacking the nature of the trust receipt
Alonzabe filed a motion for reconsideration of the above
agreements, the voluntariness and due execution of which she
decision, but the Court of Appeals denied the same in a
was yet to deny. The provisional receipts were not integral
Resolution[15] dated May 15, 2009.
parts of the trust receipt agreements such that the said receipts
cannot be considered in the determination of the true nature of
The Rulins of the Court
the said agreements. Assuming that the provisional receipts
may be taken into account, the same only prove the fact of
Alonzabe brought the case before this Court, invoking the
payment and nothing more. Usman added that he shall prove
following issues: (1) whether or not the Court of Appeals erred
that the amounts paid by way of interests were intended to
when it dismissed the petition; and (2) whether or not the
serve as penalty or liquidated damages for the delay in the
Court of Appeals erred in sustaining the ruling of the RTC that
settlement of the misappropriated amounts. Also, the interest
the information charges an offense. [16]
rate of 3% was computed on a monthly basis, not on a daily
basis.
Alonzabe maintains that the facts charged in the Information
filed against her do not constitute an offense that warrants the
In an Order[12] dated February 19, 2004, the RTC denied
continuous prosecution of the case. She laments that the
Alonzabe's Motion to Quash. The trial court ruled that the
appellate court merely examined the Information itself without
allegations stated in the motion were evidentiary in nature and
giving due regard to the trust receipt agreements, which were
can only be threshed out in a fullblown trial.
the very source of the debtor-creditor relationship between her
and Usman, as well as the basis of the indictment against her.
Alonzabe moved for a reconsideration of the above order, but
The unconscionable interest rates should have also been given
the RTC denied the same in an Order [13] dated April 2, 2004.
weight.
The Decision of the Court of Appeals
In his comment to the petition, Usman contends that Alonzabe
failed to show that the Court of Appeals erred in denying the
Alonzabe elevated the case to the Court of Appeals via a
latter's petition for certiorari. Usman argues that an order
petition for certiorari under Rule 65 of the Rules of Court,
denying a motion to quash is interlocutory and therefore the
which included a prayer for the issuance of a temporary
same is neither appealable nor can it be the subject of a
restraining order and/or a writ of preliminary injunction. She
petition for certiorari. He avers that the RTC properly denied
argued that the RTC committed grave abuse of discretion
Alonzabe's motion to quash and motion for reconsideration as
amounting to lack or excess of jurisdiction in denying her
the prosecution was entitled to prove Alonzabe's defalcation of
motion for reconsideration to the order denying her motion to
the property and money entrusted to her.
quash.
The Court finds Alonzabe's petition to be without merit. The
On November 9, 2004, the Court of Appeals denied
Court of Appeals correctly affirmed the trial court's denial of
Alonzabe's prayer for the issuance of a temporary restraining
Alonzabe's motion to quash the information in Criminal Case
order and/or a writ of preliminary injunction.
No. 18349.
Subsequently, in the assailed Decision dated December 21,
As held in Los Baños v. Pedro,[17] a motion to quash is the
2007, the Court of Appeals found no merit in Alonzabe's
mode by which an accused assails, before entering his plea,
petition and disposed of the same in this wise:
the validity of the criminal complaint or the criminal
information filed against him for insufficiency on its face in
WHEREFORE, foregoing premises considered, the petition
point of law, or for defect apparent on the face of the
is hereby DENIED. Accordingly, the challenged Order of the
information. The motion is a hypothetical admission of the
Regional Trial Court of Puerto Princesa City, Palawan
facts alleged in the information, for which reason, the court
(Branch 52), dated April 2, 2004, is hereby AFFIRMED. [14]
cannot consider allegations contrary to those appearing on the
The appellate court held that the information filed by the face of the information. Section 3, Rule 117 of the Rules of
public prosecutor shows that the same clearly alleges all the Court enumerates the grounds for a motion to quash a
complaint or information, the first of which is when "the facts
charged do not constitute an offense."[18]
As early as People v. De la Rosa,[19] the Court pronounced that
"[a]s a general proposition, a motion to quash on the ground
that the allegations of the information do not constitute the
offense charged, or any offense for that matter, should be
resolved on the basis alone of said allegations whose truth and
veracity are hypothetically admitted. However, as held in the
case of People v. Navarro,[20] additional facts not alleged in the
information, but admitted or not denied by the prosecution
may be invoked in support of the motion to quash."
We agree with the ruling of the Court of Appeals that the
Information against Alonzabe duly charged the crime of estafa
through misappropriation under Article 315, paragraph l(b) of
the Revised Penal Code.[21]
As found by the appellate court, the Information contained the
following details: (1) Alonzabe received goods in trust or
under obligation to sell the same and to deliver the proceeds
thereof or return the unsold goods to Usman after 30 days; (2)
she misappropriated the goods or its proceeds in the amount of
P169,780.00; (3) Usman's company, the Ching Usman
Trading, Inc. sustained damage or prejudice arising from the
misappropriation or conversion; and (4) repeated demands
were made by Usman upon Alonzabe to deliver the proceeds
or return the goods.
jurisprudential guidelines heretofore stated, the above
arguments of Alonzabe cannot be raised in a motion to quash.
Such allegations are matters of defense that should be properly
heard by and fully considered by the trial court in the criminal
case for estafa.
The Court of Appeals likewise did not err in dismissing
Alonzabe's petition for certiorari for being an improper
remedy. We reiterate our ruling in Querijero v. Palmes-
Limitar  [25] that:
At the outset, we must reiterate the fundamental principle that
an order denying a motion to quash is interlocutory and,
therefore, not appealable, nor can it be the subject of a petition
for certiorari.
In Zamoranos v. People, this Court emphasized that "a special
civil action for certiorari is not the proper remedy to assail the
denial of a motion to quash an information. The established
rule is that, when such an adverse interlocutory order is
rendered, the remedy is not to resort forthwith
to certiorari, but to continue with the case in due course and,
when an unfavorable verdict is handed down, to take an appeal
in the manner authorized by law."
However, on a number of occasions, this Court had sanctioned
a writ of certiorari as an appropriate remedy to assail an
interlocutory order in the following circumstances:

The above details correspond to the following elements of the (1) when the court issued the order without or in excess of
crime of estafa through misappropriation under Article 315, jurisdiction or with grave abuse of discretion;
paragraph l(b) of the Revised Penal Code, namely: (1) that
money, goods, or other personal property be received by the (2) when the interlocutory order is patently erroneous and the
offender in trust, or on commission, or for administration, or remedy of appeal would not afford adequate and expeditious
under any other obligation involving the duty to make delivery relief;
of, or to return, the same; (2) that there be misappropriation or
conversion of such money or property by the offender, or (3) in the interest of a more enlightened and substantial justice;
denial on his part of such receipt; (3) that such
misappropriation or conversion or denial is to the prejudice of (4) to promote public welfare and public policy; and
another; and (4) that there is a demand made by the offended
party to the offender.[22] (5) when the cases have attracted nationwide attention, making
it essential to proceed with dispatch in the consideration
In her motion to quash, what Alonzabe tried to impress upon thereof. (Citations omitted.)
the trial court is that the imposition of an allegedly
The Court finds that Alonzabe failed to prove the existence of
unconscionable interest rate of 3% per day on the unpaid
any of the above exceptional circumstances in the instant case.
balance of the value of the goods delivered to her by Usman
On the contrary, we find no error on the part of the trial court
indicate that the transaction between her and Usman was
and the Court of Appeals in denying Alonzabe's Motion to
actually that of a loan. Also, in her motion for reconsideration
Quash.
of the RTC Order dated February 19, 2004 that denied her
motion to quash, Alonzabe insisted that her alleged criminal
Consequently, the Information for estafa filed against her in
liability arising from the trust receipt agreements she entered
Criminal Case No. 18359 remains valid.
into with Usman established "a debtor-creditor relationship,
making the transaction a loan." [23] In the same vein, Alonzabe
WHEREFORE, the petition is DENIED. The Decision dated
faults the Court of Appeals for allegedly failing to appreciate
December 21, 2007 of the Court of Appeals in CA-G.R. SP
the true nature of the trust receipt agreements she entered into
No. 84209 is hereby AFFIRMED. Costs against the
with Usman. In her memorandum before the Court of Appeals,
petitioner.
Alonzabe contended that "[t]he merchandise/goods allegedly
misapplied and converted to [her] personal benefit were not
SO ORDERED." JARDELEZA, J., acting member per SO.
held in trust for purposes of selling the same but rather
No. 2311 dated January 14, 2016.
covered by loan security as evidenced by the trust receipt
agreement (TRA's for brevity)." [24]

The above arguments were correctly disregarded by the RTC

and the Court of Appeals. By claiming that her transactions
with Usman were not really trust receipt agreements but
partook of the nature of loan agreements, Alonzabe was
clearly arguing that she did not receive the goods delivered to
her in trust or under obligation to sell the same and to deliver
the proceeds thereof or return the unsold goods to Usman after
30 days.

Thus, far from hypothetically admitting the veracity of the

allegations contained in the Information against her, Alonzabe
sought to establish a fact contrary thereto. Following

[ G.R. No. 225063, November 28, 2019 ]
PEOPLE OF THE PHILIPPINES VS. ANGEL JULIO Y
MATER
Sirs and Mesdames:
Please take notice that the Court, First Division, issued a
Resolution dated November 28, 2019 which reads as follows:
"G.R. No. 225063- (People of the Philippines vs. Angel
Julio y Mater)
This appeal assails the Decision [1] dated June 29, 2015 of the
Court of Appeals in CA-G.R. CR-HC No. 06706 affirming the
trial court's verdict of conviction for murder against appellant
Angel Mater Julio alias "Bogel."
The Facts and the Plea
By Information dated August 16, 2010, appellant was charged
with murder for the death of Edwin Santiago Miranda, viz.:  Sinumpaang Salaysay ng Pag-aresto of PO1 Buenaventura
That on or about the 1st day of October (sic) 2012, in the City
of Las Piñas, Philippines, and within [the] jurisdiction of the
Honorable Court, the above-named accused, without
justifiable motive, with intent to kill, and with treachery,
evident premeditation, and use of superior strength, did, then
and there, willfully, unlawfully, and feloniously attack,
assault, and use personal violence upon one EDWIN
SANTIAGO MIRANDA, by then and there stabbing him for
several times on the different parts of his body, thereby
inflicting upon the latter mortal stab wounds which directly
caused his death.
CONTRARY TO LAW.[2]
The case was raffled to the Regional Trial Court-Branch 275,
Las Piñas City. On arraignment, appellant pleaded not guilty.
[3]
 During pre-trial, the parties stipulated on the following: (1)
the jurisdiction of the court; (2) the identity of accused-
appellant; (3) if SPO1 Edwin Amutan and PO3 Mark Tino
were placed on the witness stand, they will testify in
accordance with their Investigation Report; (4) if Manolito
Lagahit, Cesario Loazada, and PO1 Rodel Buenaventura were
placed on the witness stand, they will testify in accordance
with their Pinagsamang Sinumpaang Salaysay ng Pag-aresto;
and (5) if Dr. Roberto Rey San Diego was placed on the
witness stand, he will testify in accordance with Edwin's
Certificate of Death and Certificate of Post-Mortem
Examination.[4]
During the trial, the parties further stipulated on the expenses
incurred by the victim's family for his wake and burial which
amounted to P142,263.00.
Version of the Prosecution
Dante Santos testified that on October 1, 2012, around 11:30
in the evening, he was the supervisor on duty at the Padrino's
Bar and Restaurant, Las Piñas City. There, the victim Edwin
Santiago Miranda and his friends were having a drinking
spree. Appellant and his friends were seated on the next table,
having their own drinking spree, as well. [5]
Edwin who then already appeared drunk, insulted the disc
jockey (DJ) while browsing the song book. Appellant
suddenly blurted that Edwin had punched the DJ. Edwin then
turned to appellant and insulted the latter too. Appellant got
enraged and started throwing bottles and glasses in the bar. He
(Dante) tried to calm down the two (2), after which he
escorted appellant out.[6]
Outside, appellant lingered on for a few more minutes before
he eventually left. But only after around fifteen (15) minutes,
appellant came back this time, armed with a knife. Appellant
headed straight to Edwin who saw appellant walking up to
him, exclaiming "Patay ka ngayon." Edwin tried to parry
appellant's stabbing thrust but failed. Appellant hit Edwin
straight in the chest. When Edwin managed to stand up,
appellant stabbed him another time, shouting "Mamatay ka
na" After dealing the second blow, appellant walked out. He
(Dante) clearly saw the incident since he was only about three
(3) meters away from the two (2) protagonists. [7]
PO1 Rodel Buenaventura together with Barangay Tanods
Manolito Lagahit and Cesario Loazada, responded to the
incident and scoured the area to track down appellant whom
they eventually sighted in an alley. Right there and then, POl
Buenaventura arrested appellant.[8]
Meanwhile, Edwin was rushed to the Las Pifias District
Hospital then to the Pasig General Hospital where he died. [9]
The prosecution offered in evidence the Investigation
Report, Sinumpaang Salaysay of Pastor Miranda (father of
Edwin), Sinumpaang Salaysay of Dante Santos, Pinagsamang
and barangay tanods Lagahit and Loazada, Death Certificate
of Edwin, Certificate of Post-mortem Examination,
photographs of the victim, and list of expenses. [10]
Version of the Defense
Appellant testified that on October 1, 2012, he celebrated his
sixtieth (60th) birthday with his compadres at his nephew's
house which is about a five (5) to ten (10)-minute walk from
Padrino's. They had already consumed two (2) big bottles of
Emperador Light before they proceeded to the Padrino's Bar
for their singing spree. There, he saw Edwin holding the
microphone. He knew Edwin had the habit of teasing and
mocking him whenever he and his grandchildren pass by
Edwin's house. So to avoid any contact with Edwin that night,
he chose a table for him and his friends that was not too close
to Edwin's.[11]
That evening, he consumed three (3) to four (4) bottles of San
Miguel Light. Later in the night, Edwin approached their table
and asked Ed Reyes to sing. Ed obliged. After his number, Ed
returned the microphone to Edwin. Then, he (appellant) asked
Edwin if he, too, could sing. Edwin replied, "Huwag ka nang
kumanta," then cursed "putang ina mo!" and broke a bottle of
beer. He stood up but passed out due to intoxication. The next
thing he remembered, he was in an alley about twenty (20) to
twenty-five (25) meters away from the bar, confessing to his
brother Nemencio Julio that he may have done something
wrong. The police shortly arrived and handcuffed him.[12]
The Trial Court's Decision
By Decision[13] dated January 30, 2014, the trial court rendered
a verdict of conviction, thus:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered finding the accused ANGEL MATER JULIO @
BOGEL GUILTY beyond reasonable doubt of the crime of
murder and he is hereby sentenced to suffer the penalty of
reclusion perpetua. Accused is further ordered to pay the heirs
of the deceased Edwin Santiago Miranda the sums of
P75,000[.00] as civil indemnity, P50,000[.00] as moral
damages, P30,000[.00] as exemplary damages, and
P142,263.00 (as) actual damages.
SO ORDERED.[14]
The trial court found Dante's testimony to be consistent and
categorical when he identified appellant as the one who slayed
Edwin. It further appreciated treachery to have attended the
killing. It concluded that appellant's sudden and unexpected
attack gave no opportunity for Edwin to repel it or defend
himself.
As for evident premeditation, the trial court ruled that a fifteen
(15) minute gap from the time appellant got escorted out of the
bar until he came back was too short a time for him to have
meditated or reflected upon his decision to slay his foe. It also
did not consider abuse of superior strength as attendant
circumstance.[15]
The Proceedings before the Court of Appeals
On appeal, appellant faulted the trial court for rendering the
verdict of conviction despite Dante's alleged failure to
positively identify him as the assailant. Dante's attention could
not have been entirely focused on him since there were other
customers present in the bar that night. Also, Dante could not
have possibly witnessed the actual stabbing itself amidst the
commotion and confusion that ensued.[16]
Appellant further faulted the trial court for appreciating the
qualifying circumstance of treachery. According to the trial
court, suddenness of the attack alone here did not equate to
treachery. More, Edwin's heated altercation with appellant
which preceded the stabbing incident should have already
sufficiently alerted Edwin about appellant's possible reprisal.
[17]
On the other hand, the Office of the Solicitor General (OSG)
through State Solicitor Carlos G. Reynes countered that the
prosecution had sufficiently established that treachery attended
the killing of Edwin.[18]
The Court of Appeals' Ruling
The Court of Appeals affirmed through its assailed Decision
dated June 29, 2015. It held that the totality of the
prosecution's evidence specifically Dante's eyewitness account
pointed to only one conclusion, i.e. - appellant's sudden and
unexpected attack on Edwin amounted to treachery which
qualified the killing to murder.
The Present Appeal
Appellant now seeks affirmative relief from the Court and
prays anew for his acquittal. In compliance with Resolution
dated July 27, 2016,[19] both appellant[20] and the
OSG[21] manifested that in lieu of supplemental briefs, they
were adopting their respective briefs before the Court of
Appeals.
Issue
Did the Court of Appeals err in affirming appellant's
conviction for murder?
Ruling
Murder is defined and penalized under Article 248 of the
Revised Penal Code, viz:
ARTICLE 248. Murder. - Any person who, not falling within
the provisions of Article 246 shall kill another, shall be guilty
of murder and shall be punished by reclusion temporal in its
maximum period to death, if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength, with
the aid of armed men, or employing means to weaken the
defense or of means or persons to insure or afford impunity.
xxxx
5. With evident premeditation
It requires the following elements: (1) a person was killed; (2)
the accused killed him or her; (3) the killing was attended by
any of the qualifying circumstances mentioned in Article 248
of the Revised Penal Code; and (4) the killing does not amount
to parricide or infanticide.[22]
Here, appellant vigorously disclaims the presence of the
second and third elements.
Second Element:
Appellant was positively identified
as the victim's assailant
Prosecution eyewitness Dante testified that after he escorted
appellant out of the bar, the latter lingered on a few more
minutes before he finally left for home. Appellant though
returned fifteen (15) minutes later, headed straight to, and
stabbed Edwin in the chest, uttering "Patay ka ngayon."
Although Edwin tried to parry the blow, he did not succeed.
And when Edwin stood up, appellant stabbed him again
blurting "Mamatay ka na."
Appellant, nevertheless, attacks Dante's testimony on two (2)
grounds: first, Dante could not have been entirely focused on
him since there were other customers present in the bar that
night; and second, the commotion caused by the stabbing
incident would have led to confusion, making it difficult, if not
impossible for Dante to have witnessed the stabbing incident.
The argument does not persuade.
To start off, appellant has not categorically denied the
accusation that it was he who killed Edwin. All he said was he
passed out and the next thing he remembered was he was in an
alley confessing to his brother that he may have done
something wrong. This statement is at best equivocal. Taken
in light of Dante's positive identification of appellant as the
one who slayed Edwin, appellant's statement equates to an
admission of guilt.
Be that as it may, records show that even in the midst of
commotion and confusion, Dante did see up close the stabbing
incident involving the two (2) protagonists since he was only
about three (3) meters away when it all happened. Notably, he
was already familiar with both appellant and Edwin because
he tried to pacify them earlier during their heated altercation
inside the bar. Thereafter, he even escorted appellant out.
Further, Dante was not shown to have been impelled by any
ulterior motive to falsely testify against appellant on such
heinous crime as murder. More important, both the trial court
and the Court of Appeals gave credence to Dante's
straightforward and consistent eyewitness account. Indeed,
when the credibility of a witness is in issue, the trial court's
factual findings, calibration of the testimonies, and assessment
of the probative weight thereof, as well as its conclusions
anchored thereon are accorded the highest respect if not
conclusiveness. Especially, when such findings carried the full
concurrence of the appellate court, as in this case. [23]
On this score, both the trial court and the Court of Appeals
correctly concluded that appellant's bare denial cannot prevail
over his positive identification by the prosecution eyewitness
Dante. Denial, if not substantiated by clear and convincing
evidence, is a negative and self-serving defense which carries
no greater evidentiary value than the declaration of a credible
witness upon affirmative matters. The Court has invariably
held that denial, to be credited, must rest on strong evidence of
non-culpability on the part of the accused which is glaringly
absent here.[24]
Third element:
Treachery did not attend
the killing
At the outset, while the Information here alleged that treachery
attended the killing of Edwin, it did not, however, aver the
particular acts and circumstances constituting treachery in
violation of Section 9, Rule 110 of the Rules of Court, viz.:
SECTION 9. Cause of the Accusation. - The acts or omissions
complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged
as well as its qualifying and aggravating circumstances and for
the court to pronounce judgment. (9a)
Surely, the mere mention of the word treachery, without more,
is nothing but a conclusion of law, not an averment of fact. [25]
In any event, failure to allege the factual circumstances
required in the Information is a ground for a motion to quash
under Section 3 (e), Rule 117 of the Rules of Court:
SECTION 3. Grounds. - The "accused may move to quash the
complaint or information on any of the following grounds:
xxxx
(e) That it does not conform substantially to the prescribed
form;
xxxx
Too, a motion for bill of particulars [26] would have been proper
to address the insufficiency of the allegations in the
Information. As it was though, appellant never filed a motion
to quash or a motion for a bill of particulars on this ground.
Consequently, he is deemed to have waived the same.
In People v. Solar,[27] the Court modified appellant's
conviction from Homicide to Murder for failure to raise the
insufficiency of the information by either filing a motion to
quash for failure of the information to conform substantially to
the prescribed form or by filing a motion for bill of particulars.
Thus, he was deemed to have waived the defects in the
Information.
The Court, therefore, now goes Into the evidence on record to
determine whether treachery did attend the killing here.
Treachery is present when the offender commits any of the
crimes against a person, employing means, methods or forms
in the execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from the
defense which the offended party might make.[28] In fine, the
elements of treachery are: (a) the employment of means of
execution which gives the person attacked no opportunity to
defend or retaliate; and, (b) said means of execution were
deliberately or consciously adopted.[29] These elements are
both absent here.
Here, appellant's attack on Edwin was not unexpected at all. It
was preceded by their heated verbal altercation early on inside
the bar. Appellant also threw bottles and glasses inside the bar.
These preceding incidents should have already alerted Edwin
that his life was at risk in the hands of this violent and enraged
man right there and then or anytime soon. Notably, when
appellant walked back into the bar, Edwin was facing
appellant's direction and actually saw appellant arrive with a
knife heading straight to him. This is precisely the reason why
Edwin was able to move to parry appellant's attack although
Edwin did not succeed. This simply goes to show that when
appellant suddenly launched his attack on Edwin, the latter
was not totally defenseless, nay unable to defend himself or
evade the attack on his person. Surely, there is no treachery
when the victim is placed on guard, as when a heated
argument preceded the attack, especially when the victim was
standing face to face with his assailant. [30]
In People v. Salvador,[31] the Court rejected the presence of
treachery due to the prior verbal altercation between therein
appellants and Esicio Alonso inside a dance hall. The rough
argument continued outside the dance hall where appellants
ganged up on Esicio and the latter got fatally wounded. The
Court did not appreciate the qualifying circumstance of
treachery since the attack could not have been unforeseen.
Appellants therein were only convicted of homicide.
In any case, the prosecution here did not offer proof that
appellant purposely sought the means employed to insure the
killing without harm to himself. In People v. Colonia,[32] the
Court ruled out treachery as attendant circumstance in the
killing of the victim since he was not totally defenseless. It
was established that the victim and accused Eduardo had a
prior heated argument. This sufficiently forewarned the victim
of the possible reprisal from Eduardo's group.
Likewise, in People v. Pilpa,[33] assailants attacked the victim
along a national highway while the latter was having a
conversation with five (5) other persons, including a barangay
tanod. Given these circumstances, the Court ruled that the
assailants did not make any preparation to kill the victim in
such a manner as to insure the commission of the crime
without risk to themselves. The victim was with five (5)
persons who could have helped him as they had in fact helped
him repel the attack. The Court thus convicted appellant
therein of homicide only.
Here, Edwin was having a drinking spree with his friends
when appellant walked up straight to him and stabbed him to
death. The fact that appellant was in the company of friends in
a busy establishment increased the risk against him. The Court
fails to see how the mode of attack appellant adopted could
have been purposely sought to guarantee the criminal act
without risk to himself. In sum, the courts below erred in
appreciating treachery as a qualifying circumstance in this
case.
The killing was not shown
to have been evidently premeditated
For evident premeditation to be considered as qualifying or
aggravating circumstance, the prosecution must prove: (a) the
time when the offender determined to commit the crime; (b)
an act manifestly indicating that the culprit has clung to his
determination; and (c) a sufficient lapse of time between the
determination and execution, to allow him to reflect upon the
consequences of his act and to allow his conscience to
overcome the resolution of his will.[34]
Here, the trial court correctly ruled out the aggravating
circumstance of evident premeditation in the absence of a
sufficient lapse of time between the determination and
execution, to allow him to reflect upon the consequences of
his act and to allow his conscience to overcome the resolution
of his will. The fifteen (15) minute difference from the time
appellant got escorted out of the bar until he stepped back into
the bar was too short for appellant to have meditated and
reflected on the consequences of his decision to finish off the
victim. In People v. Villanueva,[35] the Court did not
appreciate evident premeditation since the time interval of
thirty (30) minutes between the altercation at the Highlander
Store and the actual assault on Otoleo was too brief to have
enabled appellant Villanueva to ponder over the consequences G.R. CR HC No. 06706
of his intended action. is AFFIRMED with MODIFICATION.

Abuse of superior strength ANGEL JULIO y MATER is found guilty of Homicide and

is also absent here
Abuse of superior strength connotes a notorious inequality of
forces between the victim and the aggressor, assuming a
situation of superiority of strength notoriously advantageous
for the aggressor selected or taken advantage of by him in the
commission of the crime. To take advantage of superior
strength means to purposely use excessive force out of
proportion to the means of defense available to the person
attacked. The appreciation of this aggravating circumstance
depends on the age, size, and strength of the parties. [36]
sentenced to eight (8) years and one (1) day of prision mayor,
as minimum, to fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal, as maximum. He is further
ordered to pay P50,000.00 as civil indemnity; P50,000.00 as
moral damages; and P142,263.00 as actual damages. These
amounts shall earn six percent (6%) interest per annum from
finality of this resolution until fully paid.
SO ORDERED." Inting, J., designated as additional
member per S.O. No. 2726 dated October 25, 2019.

Here, the fact that appellant was armed and the victim was not
does not necessarily prove abuse of superior strength.
In People v. Villanueva and Sayson,[37] the Court held that the
fact that the accused-appellants and Valencia, armed with a
knife and a stone, ganged up on Enrico does not automatically
merit the conclusion that the latter's killing was attended by
the qualifying circumstance of abuse of superior strength.

Similarly, that appellant was armed with a knife when he

returned to the bar and headed straight to Edwin and stabbed
him in the chest is not abuse of superior strength.

In the absence of any qualifying circumstance attendant to the

killing of Edwin Santiago Miranda, appellant may only be
convicted of homicide. Under Sections 4[38]and 5,[39] Rule 120
of the 1997 Rules of Court, when there is a variance between
the offense charged in the Information and that proved or
established by the evidence, and the offense charged
necessarily includes the offense proved, the accused shall be
convicted of the offense proved included in that which is
charged. Since the prosecution was not able to prove any
qualifying circumstance here, the accused should only be
sentenced to the lesser crime of homicide which is necessarily
included in murder. At any rate, this variance between the
offense alleged and the offense proven did not violate
petitioner's substantial rights. Appellant's right to be informed
of the charge against him has not been violated because where
an accused is charged with a specific crime, he is duly
informed not only of such specific crime but also of lesser
crimes or offenses included therein.[40]

Penalty

Under Article 249 of the Revised Penal Code, homicide is

punishable with reclusion temporal, viz.:
Art. 249. Homicide. - Any person who, not falling within the
provisions of Article 246, shall kill another without the
attendance of any of the circumstances enumerated in the next
preceding article, shall be deemed guilty of homicide and be
punished by reclusion temporal.
Applying the Indeterminate Sentence Law[41] and in the
absence of any aggravating or mitigating circumstance,,
appellant should be sentenced to eight (8) years and one (1)
day of prision mayor as minimum to fourteen years (14), eight
(8)months and one (1) day of reclusion temporal as maximum.

On the monetary awards, the Court affirms the award of moral

damages of P50,000.00 and actual damages of P142,263.00.
[42]
 The award of civil indemnity of P75,000.00 must be
reduced to P50,000.00 in accordance with prevailing
jurisprudence.[43] On the other hand, the award of exemplary
damages in the amount of P30,000.00 must be deleted since no
aggravating circumstance was proved. A six percent (6%)
interest per annum on the monetary awards is also imposed
from finality of this resolution until fully paid.

WHEREFORE, the appeal is PARTLY GRANTED. The

Decision dated June 29, 2015 of the Court of Appeals in CA-

[ G.R. No. 224597, July 29, 2019 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-
APPELLEE, VS. DANTE CUBAY Y UGSALAN,
ACCUSED-APPELLANT.
DECISION
LAZARO-JAVIER, J.:
The Case
This appeal[1] seeks to reverse and set aside the
Decision[2] dated November 24, 2015 of the Court of Appeals
in CA-G.R. CR-HC No. 01145-MIN, which affirmed the trial
court's verdict of conviction[3] against accused-appellant Dante
Cubay y Ugsalan for forty-four (44) counts of rape. Its
dispositive portion reads:
WHEREFORE, the appeal is DENIED. The Joint Judgment
dated 30 January 2013 of the Regional Trial Court (RTC) of
Manolo Fortich, Bukidnon, Branch 11 in Criminal Case Nos.
08-05-3536 to 08-05-3579 finding accused-appellant Dante
Cubay guilty beyond reasonable doubt of forty-four (44)
counts of rape is AFFIRMED in toto.
SO ORDERED.[4]
The Informations
Appellant Dante Cubay y Ugsalan was charged with forty-four
(44) counts of rape under separate Informations which, except
for the material dates, uniformly read, thus:
That on or about the 7th day of September, 2007, in the
evening, at XXX, province of Bukidnon, Philippines
particularly at the Special Education Dormitory (SPED) and
within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and
feloniously have sexual intercourse with [AAA], (an) 18 year-
old (who) suffered (a) physical defect (hearing impaired)
against her will, to the damage and prejudice of [AAA] in such
amount as (may be) allowed by law.
CONTRARY to (and) in violation of R.A. 8353.[5]
The forty-four (44) Informations bore the following
details, viz:
xxx
The cases were raffled to the Regional Trial Court, Branch 11,
Manolo Fortich, Bukidnon.
Arraignment and Plea
On arraignment, appellant pleaded "not guilty" to all the
charges.[6] Thereafter, the cases were consolidated and jointly
tried.
During the trial, complainant AAA, her attending doctor
Rubee Ann Go-Gotil, her two aunts BBB and CCC, SPED
Teacher DDD, and sign language experts Joshua Asuela, Jr.
and Roygie Gantalao testified for the prosecution. On the other
hand, appellant Dante Cubay alone testified for the defense.
The Prosecution's Version
Complainant is a congenital deaf mute.[7] Her hearing
impairment was classified as "profound" and her level of
education in formal sign language, low, i.e. that of a grade two
(2) pupil. But she is teachable in the informal or basic sign
language.
In 2003, complainant started studying at XXX Special
Education (SPED) Center - a special school for children with
disabilities, i.e. mental, visual, and hearing impairment.[8] The
SPED Center and dormitory were located inside XXX
Elementary School, XXX, Bukidnon. The school required
SPED students to stay in the dormitory. Complainant stayed in
the dormitory during school days and went home to her
grandfather's house at XXX, Bukidnon on weekends.[9]
Appellant is the school watchman assigned at XXX
Elementary School, XXX SPED Center, and the SPED
dormitory. His wife is the dormitory's caretaker. [10]
Complainant's aunt, BBB is a SPED teacher in XXX SPED
Center.[11] One time, complainant's teacher DDD told BBB that
she (DDD) saw complainant eating snacks with appellant. To
quell rumors about complainant and appellant, BBB convinced
her father (complainant's grandfather) to have complainant
move in with her.[12] Complainant initially agreed but when her
grandfather came to fetch her, she refused to go because she
was afraid her grandfather would scold her. Three (3) days
later, she voluntarily went to her grandfather's house which
was closer to the house of her other aunt CCC. [13]
Complainant's physical and behavioral changes, including her
frequent headache and stomach ache aroused her aunts'
suspicion. Then CCC learned complainant had missed her
menstrual period, CCC caused complainant to take a
pregnancy test which yielded a positive result. [14] When asked
who the father of her child was and who molested her,
complainant motioned the name "Dante," herein appellant. She
then charged appellant with rape before the XXX Police
Station.[15]
With the assistance of sign language interpreters Joshua
Asuela, Jr. and Roygie Gantalao, complainant testified that
sometime in September 2007, while she was studying inside
her dormitory room, appellant entered her room, undressed
her, touched her body, and inserted his penis in her vagina.
She pushed appellant, but it was in vain. [16] The incident was
repeated several times, specifically on September 7, 10, 11,
12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, and 28, 2007;
October 1, 3, 4, 5, 8, 9, 10, 11, and 12, 2007 November 6, 7, 8,
9, 12, 13, 14, 15, and 16, 2007; December 3, 4, 5, 6, and 7,
2007; and January 14, 15, 16, 17, and 18, 2008. The rape
incidents happened at night during school days inside
complainant's dormitory room. Complainant consequently
conceived and gave birth to a child in June 2009. [17]
Complainant charged him with rape only because her aunt
BBB had threatened her.[28]
The defense offered in evidence the stuff toy (Exhibit "1"); a
ladies' watch (Exhibit "2"); and a picture (Exhibit "3").[29]
The Trial Court's Ruling
By Joint Judgment[30] dated January 30, 2013, the trial court
found appellant guilty of forty-four (44) counts of rape, thus:

On January 28, 2008, Dr. Rubee Ann Go-Gotil examined WHEREFORE, premises above considered, the court finds
complainant and found old healed hymenal lacerations at 3 DANTE CUB AY y Ugsalan GUILTY beyond reasonable
and 9 o'clock positions. She also confirmed complainant's doubt of rape of AAA for 44 counts and hereby sentences him
pregnancy. Her Living Case Report[18] contained her findings. to suffer the penalty each of RECLUSION PERPETUA in
Criminal Case Numbers 08-05-3536 up to Criminal Case No.
The prosecution presented as documentary evidence: Living 08-05-3579 and he is further ordered:
Case Report dated January 29, 2008[19] (Exhibit "A");
Certification dated January 30, 2008 [20] (Exhibit "B"); and A - To pay AAA -
Complainant's Sworn Statement dated January 27,
2008[21] (Exhibit "C"). 1. Civil Indemnity - Php 75,000.00 each for forty-four
counts of rape aforementioned;
The Defense's Version
2. Moral Damages - Php 50,000.00 each for 44 counts
of rape aforementioned;
Appellant denied the charges. He admitted he had sexual
congress with complainant for more than forty-four (44) times
3. Exemplary damages - Php 25,000.00 each for forty-
but asserted they were all consensual. Complainant filed the
four counts of rape aforementioned;
rape charges only because her pregnancy and illicit affair with
him brought embarrassment to her family.
B - In every case -
On February 27, 2007, he got employed as watchman of XXX
SPED School and Dormitory in XXX Elementary School. He 4. Recognition of the child of AAA;
worked from 7:30 in the evening until 4:30 in the morning and
resided in the school dormitory. His wife also worked and 5. To support the offspring of AAA; and
resided in the SPED dormitory as caretaker tasked to look
after the blind students. He met complainant on the same day C-
he got employed. She and her friend EEE frequently roamed
around the school premises and visited him in his post at night. 6. Pay the costs.
Complainant communicated with him through sign language
which EEE, a polio victim with no hearing impairment, would Accused is credited (for) his preventive detention at the
interpret to him.[22] PDRC-Manolo Fortich, Bukidnon, and the remainder of his
penalties shall be served at the Davao Prison and Penal Farm,
On February 28, 2007, complainant spoke signs to appellant. B.E. Dujali, Davao del Norte, where he properly belongs.
EEE said complainant was telling him he was handsome and
she liked him. He knew complainant liked him because she SO ORDERED.[31]
even wrote him a letter which his wife had torn. Complainant The Proceedings before the Court of Appeals
told him she wanted them to be friends even after he confided
to her he was already married. They had since become lovers.
On appeal, appellant faulted the trial court for finding him
Complainant visited him in his post every night. She became
guilty of forty-four (44) counts of rape despite the
close to him and even gave him a stuff toy, watch, and a photo
prosecution's alleged failure to prove his guilt beyond
of them together with dedication at the back. [23]
reasonable doubt. Appellant essentially argued: (1)
Complainant's testimony did not deserve credence as it was
On October 3, 2007, complainant went to his sleeping quarters
uncorroborated, implausible, and replete with inconsistencies.
and gave him a watch and a stuff toy. [24] Because of the heavy
More, complainant's testimony was only conveyed to the court
rains that night, his companion who occupied the quarters with
by sign language interpreters who were engaged by
him did not arrive. He told complainant to go home but the
complainant's family and who appeared biased in favor of the
latter refused and even slept beside him. Complainant pinched
prosecution. (2) The trial court erred in allowing the
him, then they started kissing, tickling, and hugging each
prosecution to propound leading questions on complainant. (3)
other. They eventually had sexual intercourse. Complainant
There was no rape because his sexual congress with
never resisted but consented to everything they did. She even
complainant was consensual, they being lovers. Although
sucked his lips when he inserted his sex organ into hers. After
complainant had impaired hearing, she was capable of giving
October 3, 2007, they had many more nights of sexual
consent to the sexual intercourse. She was already eighteen
congress in his quarters, all with complainant's full consent.
(18) years old during all their forty-four (44) sexual
Complainant was already of legal age when they started
encounters. She had normal mental faculties during all those
having sexual intercourse.[25] He had sexual intercourse with
times.[32]
complainant more than forty-four (44) times. [26] EEE and his
wife's male cousin named Rey knew about his sexual congress
On the other hand, the Office of the Solicitor General (OSG),
with complainant as they, too, were lovers.[27]
through State Solicitor Alberto T. Talampas maintained that
the prosecution was able to prove to a moral certainty that
appellant had carnal knowledge of complainant for forty-four
(44) times through force, threat, or intimidation. Her
consistent and positive identification of appellant as the man
who raped her prevails over appellant's self-serving denial and
uncorroborated sweetheart theory.[33]
The Court of Appeals' Ruling
By Decision[34] dated November 24, 2015, the Court of
Appeals affirmed.
The Present Appeal
Appellant now seeks affirmative relief from the Court and
prays anew for his acquittal. In compliance with
Resolution[35] dated July 13, 2016, both appellant and the OSG
manifested[36] that, in lieu of supplemental briefs, they were
adopting their respective briefs before the Court of Appeals.
Issues
Did the Information validly charge the crime of rape?
Assuming the affirmative, was the prosecution able to prove
beyond reasonable doubt the forty-four (44) counts of rape?
Ruling
The Informations do not charge the crime of rape.
The principal purpose of an Information is to ensure that the
accused is formally informed of the facts and acts constituting
the offense charged[37] in accordance with the rights of the
accused enshrined in the Constitution.[38] Toward this end, the
Rules of Court requires that the Information clearly accurately
allege every element of the offense charged. Section 6, Rule
110 pertinently provides:
Section 6. Sufficiency of complaint or information. - A
complaint or information is sufficient if it states the name of
the accused, the designation of the offense by the statute, the
acts or omissions complained of as constituting the offense;
the name of the offended party; the approximate time of the
commission of the offense, and the place wherein the offense
was committed.[39] (Emphasis supplied)
Where the Information is insufficient, it cannot be the basis of
any valid conviction. Quimvel v. People of the
Philippines[40] decrees:
The main purpose of requiring the elements of a crime to be
set out in the Information is to enable the accused to suitably
prepare his defense because he is presumed to have no
independent knowledge of the facts that constitute the
offense. The allegations of facts constituting the offense
charged are substantial matters and the right of an
accused to question his conviction based on facts not
alleged in the information cannot be waived. As further
explained in Andaya v. People:
No matter how conclusive and convincing the evidence of
guilt may be, an accused cannot be convicted of any
offense unless it is charged in the information on which he
is tried or is necessarily included therein. To convict him of
a ground not alleged while he is concentrating his defense
against the ground alleged would plainly be unfair and
underhanded. The rule is that a variance between the
allegation in the information and proof adduced during trial
shall be fatal to the criminal case if it is material and
prejudicial to the accused so much so that it affects his
substantial rights. (Emphasis added)
Here, appellant was charged with forty-four (44) counts of
rape. The elements of rape are as follows: (1) the offender had
carnal knowledge of a woman; and (2) the offender
accomplished such act through force or intimidation, or when
the victim was deprived of reason or otherwise unconscious,
or when she was under twelve (12) years of age or was
demented.
We quote anew the forty-four (44) separate Informations,
which except for the material dates, uniformly read:
That on or about the 7th day of September, 2007, in the
evening, at XXX, province of Bukidnon, Philippines
particularly at the Special Education Dormitory (SPED) and
within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and
feloniously have sexual intercourse with [AAA], (an) 18 year-
old (who) suffered (a) physical defect (hearing impaired)
against her will, to the damage and prejudice of [AAA] in such
amount as (may be) allowed by law.
CONTRARY to (and) in violation of R.A. 8353.[41]
The Informations conspicuously lack the second element of
rape, i.e. the accused employed force or intimidation, or that
the victim was deprived of reason, unconscious, under twelve
(12) years of age, or was demented.
Surely, being a deaf-mute does not necessarily take the place
of the element of force or intimidation or having been
deprived of reason, unconscious, or demented. The allegation
that "the accused did then and there willfully, unlawfully and
feloniously have sexual intercourse with AAA, an 18 year-old
(who) suffered a physical defect (hearing impaired) against her
will, xxx" does not equate to force or intimidation either.
In fine, the Informations do not validly charge the crime of
rape or any offense at all. The same, for sure, cannot be the
basis of a valid judgment of conviction.
We are not unmindful of the rule that by his plea, an accused
is deemed to have waived all objections to the information.
This rule, however, is correct only insofar as formal objections
to the pleadings are concerned. By express provision of
Section 9, Rule 117 of the Rules of Court and by established
jurisprudence, the validity of the Information vis-a-vis the
essential issue of whether or not it sufficiently charges an
offense goes into the very foundation of jurisdiction, hence,
may be raised and addressed at any stage of the proceedings.
Sections 9 and 3 of Rule 117 relevantly provide:
Sec. 9. Failure to move to quash or to allege any ground
therefor. - The failure of the accused to assert any ground of a
motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a
waiver of any objections except those based on the grounds
provided for in paragraphs (a), (b), (g), and (i) of Section 3
of this Rule. (Emphasis supplied)
Sec. 3. Grounds. - The accused may move to quash the
complaint or information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the
offense charged;

xxxx
(g) That the criminal action or liability has been extinguished;
and
xxxx
(i) That the accused has been previously convicted or
acquitted of the offense charged, or the case against him was
dismissed or otherwise terminated without his express consent.
(Emphasis supplied)
In some cases, the Court considered the omission of the
essential element of "force or intimidation" to be non-fatal in
view of its recital in the complaint itself which at any rate
formed part of the Information.[42]
But this is not the case here. Both the Information and
Complaint did not allege the essential element of "force or
intimidation," specifically, that the accused employed force or
intimidation, or that the victim was deprived of reason,
unconscious, under twelve (12) years of age, or was demented.
For easy reference, the Complaint reads, thus:
The undersigned offended party, hereby accuses Dante U.
Cubay, 40 years old, married a caretaker of XXX Central
School, a resident of XXX, Bukidnon for the crime of RAPE,
committed as follows, to wit:
That every ten (o'clock) in the evening during school days of
September 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26,
27, 28, 2007, October 1, 3, 4, 5, 8, 9, 10, 11, 12, 2007,
November 6, 7, 8, 9, 12, 13, 14, 15, 16, 2007, December 3, 4,
5, 6, 7, 2007 and January 14, 15, 16, 17, 18, 2008 at SPED
Dormitory, XXX, Province of Bukidnon, Philippines and
within the (jurisdiction) of this Honorable Office of the
Department of Justice, the (above-named) accused did then
and there willfully, unlawfully, maliciously intend and with
lewd desire rape the minor who is a hearing impaired and had
given her money and other things thus sex was not freely
given.
CONTRARY TO LAW, under ART. 335 of the RPC.[43]
To repeat, an Information which does not sufficiently charge
an offense is fatally defective and warrants the acquittal of the
accused.
[44]
Guelos v. People  explains the significance of the propriety
and sufficiency of the charge made in the information, viz:
In People v. Flores, Jr., as reiterated in the more recent cases
of People v. Pangilinan and People v. Dadulla, the Court
ruled that the constitutional right of the accused to be informed
of the nature and cause of the accusation against him cannot
be waived for reasons of public policy. Hence, it is imperative
that the complaint or information filed against the accused be
complete to meet its objectives. As such, an indictment must
fully state the elements of the specific offense alleged to have
been committed. For an accused cannot be convicted of an
offense, even if duly proven, unless it is alleged or
necessarily included in the complaint or information. In
other words, the complaint must contain a specific allegation
of every fact and circumstance necessary to constitute the
crime charged, the accused being presumed to have no
independent knowledge of the facts that constitute the
offense. Under Section 9 of Rule 117 of the 2000 Revised
Rules on Criminal Procedure, an accused's failure to raise
an objection to the insufficiency or defect in the
information would not amount to a waiver of any objection
based on said ground or irregularity. (Emphasis supplied)
So must it be.
The elements of rape were not established
Even assuming the Informations validly charged the crime of
rape, a verdict of acquittal here is still in order.
In convicting appellant of forty-four (44) counts of rape, the
trial court and the Court of Appeals mainly relied on
complainant's testimony on direct and cross. The full text of
her testimony reads:
Q: Do you recall what did Dante do to you?
A: Yes Dante entered my room and I was raped by Dante.[45]
xxx xxx xxx
Q: Where did this happen?
A: In the room in the dormitory where I was sleeping.
Q: When you said rape, what do you mean by that?
A: Undressed, touched my body and then I pushed him, I was
afraid.
Q: You mean he inserted his penis to your vagina?
A: Yes sir.[46]
xxx xxx xxx
Q: Now, if you can recall, how many times did he rape you?
A: September, October, November, December and January.[47]
xxx xxx xxx
Q: And do you recall if these incidents of rape happened
during school days?
A: Yes sir.[48]
The thing speaks for itself. On the whole, AAA's testimony is
noticeably terse, vague, equivocal, and seriously wanting in
details pertaining to the presence of the essential element of
force or intimidation. AAA's testimony only bears the element
of carnal knowledge.
That AAA pushed appellant when he "undressed, touched my
body. . ., I was afraid" is at best equivocal. Again, this hardly
equates with "force or intimidation" within the penal provision
defining and penalizing rape.
For one, the act of pushing did not emanate from appellant but
from AAA. For another, "pushing" is equivocal subject to
different interpretations depending on the attendant
circumstances. It may mean a gentle "no, " "not yet," "wait,"
"I am shy," "not here," and many more possible interpretations
or meanings. One thing is sure though: under the attendant
circumstances, it cannot be deemed sufficient proof
of resistance or unconsented sex.
In any event, People v. Tionloc[49] decrees that resistance must
be manifested and tenacious, viz:
In People v. Amogis this Court held that resistance must be
manifested and tenacious. A mere attempt to resist is not the
resistance required and expected of a woman defending her
virtue, honor and chastity. And granting that it was sufficient,
"AAA" should have done it earlier or the moment appellant's
evil design became manifest. In other words, it would be
unfair to convict a man of rape committed against a woman
who, after giving him the impression thru her unexplainable
silence of her tacit consent and allowing him to have sexual
contact with her, changed her mind in the middle and charged
him with rape.
The short and long of it is this: The evidence on record
indubitably show that then eighteen (18) year old AAA, albeit
she is a deaf-mute with low capacity to learn formal sign
language, is in truth, mentally capable of giving or
withholding consent.
For even though AAA is a deaf-mute and certified to be only
at Grade 2 level in formal sign language education does not
mean she is suffering from mental abnormality, deficiency, or
retardation which has the effect of hindering her capacity to
give consent. People v. Butiong[50] elucidates:
Carnal knowledge of the female with her consent is not rape,
provided she is above the age of consent or is capable in the
eyes of the law of giving consent. xxx
xxx  xxx  xxx
In his commentary on the Revised Penal Code, Justice Aquino
discusses the concept of committing rape against the female's
will or without her consent, to wit:
xxx xxx  xxx
The deprivation of reason need not be complete. Mental
abnormality or deficiency is enough. Cohabitation with a
feebleminded, idiotic woman is rape. Sexual intercourse with
an insane woman was considered rape. But a deaf-mute is
not necessarily deprived of reason. This circumstances
must be proven. Intercourse with a deaf-mute is not rape
of a woman deprived of reason, in the absence of proof
that she is an imbecile. xxx (Emphasis supplied)
Notably, AAA had reached Grade VI of elementary education
and her teacher assessed her to be an average student and a
normal child, viz:[51]
Q: Ms. AAA finished Grade 6 Elementary (Education) the
lessons you thought (sic) from the start of the school year
from June up to January?
A: Yes Sir.[52]
xxx xxx xxx
Q: The education that you thought (sic) AAA include the
education on Morals and Values, is that correct?
A: Yes Sir.[53]
xxx xxx xxx
Q: Now in your teaching, you being instructor or teacher of
AAA as per your experience, can you consider her to be
intelligent pupil?
A: Yes Sir.
Q: Meaning she can understand the lessons that you thought
(sic)?
A: She is average in my assessment.
Q: But in your assessment, she could determine what is right
and what is wrong and what is good and what is bad?
A: Yes Sir. [54]
xxx xxx xxx
Q: When you say hearing impaired child, who is a special
child, you mean to say she is not a normal child?
A: Normal but she cannot hear and cannot talk that is why
they are called special because they are not like us that can
hear and can talk.
Q: In your lectures and in your dealings with her you treat her
as normal but they are not sensitive as to the use of her
sense of hearing?
A: Yes Your Honor.
Q: So they are considered special in the sense that, they are
normal but they could not hear?
A: They cannot talk because they cannot hear.[55]
Her relatives acknowledged her to be normal and capable of
engaging into romantic relations, albeit they opposed the idea
as she was still studying at that time.[56]
Q: But you considered (your) niece as normal except that she
has hearing impaired?
A: Yes Sir.
Q: Do you not want her happy and have relationship with a
person who is of the opposite sex?
A: Maybe in that time. For me it is not proper time that she
engaged in that, because she still studying.[57]
In another vein, AAA's broadly sweeping statement that "I
was raped . . . in September, October, November, December,
and January" is a conclusion of law. On this score, We have
consistently ruled that the victim's bare statement that the
accused raped her again on the succeeding dates is a
conclusion of law which cannot serve as sole basis for
appellant's conviction. People v. Nuyte[58] lucidly teaches:
AAA's bare statements that appellant repeated what he had
done on her previously were not enough to establish beyond
reasonable doubt the incidents subject of Criminal Case Nos.
FC-00-781, FC-00-784 and FC-00-785. Said declarations were
mere general conclusions. The prosecution must endeavor to
present in detailed fashion the manner by which each of the
crimes was committed. "Every charge of rape is a separate and
distinct crime and each must be proved beyond reasonable
doubt." There is no reason why the foregoing principle should
not be applied in the aforementioned cases. Prescinding
therefrom, appellant should be acquitted in these cases.
To emphasize, sexual intercourse here between appellant and
AAA happened at least forty-four (44) times over only a
period of five (5) months. And through all these times, AAA
never complained. She did not even want to leave the
dormitory where all her forty-four (44) sexual encounters with
appellant happened. She was even seen by one of her teachers
"eating snacks with appellant," hence her aunt BBB, also a
SPED teacher, proposed to AAA's grandfather to pull AAA
from the dormitory and make her live with her (BBB) because
she did not want ugly rumors to spread.[59]
Too, AAA testified she did not go with her grandfather the
first time the latter came to pull her out from the dormitory
because "he might scold her." For what? If we put it in
context, it was because of the "ugly rumor spreading" about
her and appellant.
Finally, AAA revealed the supposed rape (forty-four [44]
counts altogether) only when her relatives discovered she was
pregnant.
The foregoing circumstances taken singly or collectively, are
exculpatory evidence which compel no less than a verdict of
acquittal.
It is settled that in every criminal prosecution, the accused is
presumed innocent until the contrary is established by the
prosecution. The prosecution bears the burden of establishing
an accused's guilt beyond reasonable doubt. [60] Its evidence
must stand or fall on its own merits and cannot draw strength
from the weakness of the defense. When the evidence fails to
establish all the elements of the crime, as in this case, the
verdict must be one of acquittal.[61]
ACCORDINGLY, the appeal is GRANTED. The Decision
dated November 24, 2015 of the Court of Appeals in CA-G.R.
CR-HC No. 01145-MIN is REVERSED and SET
ASIDE and a new one rendered ACQUITTING DANTE
CUBAY Y UGSALAN of rape in Criminal Case Nos. 08-05-
3536 to 08-05-3579.
The Court ORDERS the Superintendent of the Davao Prison
and Penal Farm, B.E. Dujali, Davao del Norte to immediately
release DANTE CUBAY Y UGSALAN unless he is being
detained for some other cause; and to submit his compliance
report within five (5) days from notice.
Let an entry of final judgment be issued immediately.
SO ORDERED.
[ G.R. No. 227266, July 23, 2018 ]
EMMANUEL R. DE GUZMAN V. PEOPLE OF THE
PHILIPPINES AND MICROLAB
Sirs/Mesdames:
Please take notice that the Court, Second Division, issued a
Resolution dated 23 July 2018 which reads as follows:
"G.R. No. 227266 (Emmanuel R. De Guzman v. People of
the Philippines and Microlab). - In two (2)
Informations[1] filed before the Regional Trial
Court (RTC), Branch 108, Pasay City, petitioner Emmanuel
De Guzman y Raflores, a business development manager of
respondent Microlab, a company engaged in the business of
indenting and importing hospital and medical equipment and
instruments, was charged with the crimes of Theft under
Article 308 of the Revised Penal Code and Carnapping under
Section 2 of Republic Act (R.A.) No. 6539, otherwise known
as the Anti-Carnapping Act of 1972, for unlawfully taking and
stealing, on September 15, 2013, one (1) Apple Ipad-2 worth
P40,990.00, one (1) Blackberry 9790 cellphone worth
P18,160.08, and one (1) Hyundai i10 GL, 2013 model, service
car, all owned by Microlab. According to the prosecution, De
Guzman was entrusted with said properties as perks to his
position. When he resigned in 2013, however, he refused to
return the same despite demand from Microlab. Upon
arraignment, De Guzman pleaded not guilty. On September
16, 2014, De Guzman filed an Urgent Motion to Dismiss [2]  appeal; (5) double jeopardy has already set in; (6) the trial
asserting that the trial court lacked jurisdiction to try the cases
against him considering that the elements thereof took place in
Pasig City.
On November 14, 2014, the RTC treated the Motion to
Dismiss as a Motion to Quash and granted the same, but
directed De Guzman to return the subject vehicle and gadgets
to Microlab within five (5) days from receipt of the Order. [3]
In a Decision[4] dated March 17, 2016, the Court of
Appeals (CA) reversed and set aside the RTC ruling and
remanded the case thereto for the hearing on the merits of its
criminal and civil aspect. First, the appellate court affirmed
the propriety of the appeal filed by Microlab instead of a
petition under Rule 65 of the Rules of Court, considering that
the November 14, 2014 Order of the trial court granting De
Guzman's motion to quash was a final order that disposes of
the case and terminates the proceedings with finality, and is
therefore, properly reviewable by appeal. Second, the CA held
that the RTC erred in sustaining the motion to quash because it
considered a ground which was not raised by De Guzman
therein. While De Guzman raised the sole ground of lack of
jurisdiction, the trial court granted the motion on the ground
that the facts raised in the complaint do not constitute an
offense, reasoning that the element of taking without consent
of the owner does not exist. Third, contrary to De Guzman's
assertion, the CA maintained that the trial court had territorial
jurisdiction over the cases since Microlab's place of business is
in Pasay City, the same office where the subject properties
were assigned to De Guzman. Fourth, the CA also held that
contrary to the ruling of the RTC, De Guzman was properly
indicted for the crimes charged. De Guzman only had material
possession over the subject properties entrusted to him as an
employee of Microlab, hence, his failure to return the same
despite demand constituted theft since his possession turned
into an unlawful one. In legal effect, therefore, the two (2)
informations for theft and carnapping still stand due to the trial
court's error in quashing the same, without prejudice to the
trial on the merits.
Further, in a Resolution[5] dated September 19, 2016, the CA
rejected De Guzman's assertion that Microlab had no legal
standing to appeal the case because the Office of the Solicitor
General (OSG) had no participation in the filing of the appeal.
According to the appellate court, the exceptions to said general
rule applies in this case, namely: (1) that there was a denial of
due process to the prosecution when the handling prosecutor
deliberately failed to make the needed indorsement to the OSG
for the filing of the appeal even as he consistently affixed his
conformity in the notice of appeal, brief, and reply; and (2)
that the trial court committed grave error when it abated and
dismissed the informations on grounds not stated in the motion
to quash. Finally, the CA ruled that double jeopardy has not
set in since the element that the dismissal was without the
accused's express consent is lacking in view of the fact that
here, the case was dismissed upon De Guzman's filing of his
motion to quash.
Consequently, De Guzman filed the instant petition invoking
the following arguments: (1) only the OSG, and not the private
offended party, may represent the People on appeal; (2) the
instant case does not fall among the exceptions to said general
rule; (3) the Morillo[6] case does not apply here for in the
instant case, trial on the merits has not ensued and that here,
the OSG explicitly stated that the appeal should not have been
given due course since it did not file any appeal nor deputized
Microlab to file the same on its behalf; (4) Microlab should
have filed a petition under Rule 65 of the Rules instead of an
court was correct in granting relief other than that prayed for
in De Guzman's motion to dismiss since he prayed for "other
just and equitable reliefs;" (7) De Guzman's possession of the
properties is lawful; and (8) it was De Guzman, and not
Microlab, who was deprived of due process.[7]

The petition is devoid of merit.

After a cursory review of the findings of the appellate court,

the Court finds no cogent reason to reverse the same. First, it
must be noted that Microlab correctly filed its appeal before
the CA instead of a special civil action for certiorari under
Rule 65 in view of the fact that the RTC Order appealed from
was a final order that disposed of the case with finality.

Second, contrary to the assertion of De Guzman, the CA aptly

gave  due course to the appeal filed by Microlab even in the
absence of the  intervention of the OSG. True, the general rule
is that if a criminal case is  dismissed by the trial court or if
there is an acquittal, the appeal must be  instituted by the OSG
on behalf of the State. Our pronouncement in Morillo v.
People, et al.,[8] however, provides exceptions for said rule
where the Court  permitted an offended party to file an appeal
without the intervention of the  OSG, such as when there is
denial of due process of law to the prosecution  and the State
or its agents refuse to act on the case to the prejudice of the 
State and the private offended party, when there is grave error
committed by  the judge, or when the interest of substantial
justice so requires. Such is the  case before Us. As duly found
by the appellate court, it is in the interest of  substantial justice
to give due course to Microlab's appeal due to the fact  that the
trial court gravely erred in granting De Guzman's motion to
quash,  resulting in a denial of due process to Microlab. This is
due to the fact that  for unknown reasons, the handling
prosecutor deliberately failed to transmit  the requisite
endorsement to the OSG, despite his continued conformity to 
the notice of appeal, brief and reply of Microlab. Equally
important is the  fact that the RTC, in contravention with the
express mandate of Section 2,  Rule 117 of the Rules of Court
which provides that in a motion to quash, the  court shall
consider no other ground than those stated in the motion,
granted  De Guzman's motion to quash, not based on the sole
argument of lack of  jurisdiction raised therein, but on the
premise that the facts in the complaint  do not constitute an
offense. To the Court, these circumstances warrant a 
relaxation of the rigid rules of procedure requiring only the
OSG to appeal  the case on behalf of the prosecution.

Third, there is no merit in De Guzman's contention that double

jeopardy has already set in. Double jeopardy attaches if the
following elements are present: (1) a valid complaint or
information; (2) a court of competent jurisdiction; (3) the
defendant had pleaded to the charge; and (4) the defendant
was acquitted, or convicted or the case against him was .
dismissed or otherwise terminated without his express consent.
9 A perusal of the records of the instant case clearly shows
that the case was dismissed by the trial court at the instance of
De Guzman who filed a motion to quash. Thus, the fourth
element of double jeopardy is lacking as De Guzman's filing
of said motion constitutes his consent to the dismissal of the
case.

WHEREFORE, premises considered, the petition

is DENIED for failure of Emmanuel R. De Guzman to show
any reversible error in the assailed CA decision.

SO ORDERED."

[ G.R. Nos. 232693-94, August 23, 2017 ]
JOSE Q. DE GUZMAN, JR. VS. THE PEOPLE OF THE
PHILIPPINES, HON. ALEXANDER G. GESMUNDO, IN
HIS CAPACITY AS CHAIRPERSON OF
SANDIGANBAYAN SEVENTH [7TH] DIVISION
Sirs and Mesdames:
Please take notice that the Court, Second Division, issued a
Resolution dated 23 August 2017 which reads as follows:
"G.R. Nos. 232693-94 (Jose Q. De Guzman, Jr. vs. The
People of the Philippines, Hon. Alexander G. Gesmundo, in
his capacity as Chairperson of Sandiganbayan Seventh [7th]
Division). - This is a Petition for Certiorari [1] under Rule 65 of
the Rules of Court seeking to annul and set aside the
Resolutions dated March 20, 2017[2] and May 22,
2017[3] issued by the Sandiganbayan Seventh Division in SB-
12-CRM-0127 to 0128.    
In 2004, a complaint was filed with the Deputy Ombudsman
for Luzon, which essentially alleged that in October 2001,
several employees[4] of the Government Service Insurance
System (GSIS) Tarlac Field Office conspired with Jose Q. De
Guzman, Jr. (De Guzman) in giving him undue preference,
benefit or advantage by processing and approving the loans of
a total of 491 of De Guzman's borrowers, amounting to
P241,053,600.00, under the GSIS Bahay Ko Program,
notwithstanding their lmowledge that the said borrowers were
neither qualified or under the territorial jurisdiction of the
Tarlac Field Office.[5]
It was also alleged that the said GSIS employees, using the
same modus, approved 53 borrowers of De Guzman's land
development project called Teresa Homes, amounting to
P52,107,000.00, despite their knowledge that the lots covered
were intended for commercial purposes and by causing over-
appraisal in the amount of P33,242,848.36 of the land and
improvements offered as collaterals.[6]
On September 15, 2005, the Office of the Deputy Ombudsman
for Luzon issued a Joint Resolution, which found probable
cause to indict De Guzman and the said employees of GSIS
for violating Section 3(e) of Republic Act (R.A.) No. 3019, or
the Anti Graft and Corrupt Practices Act. De Guzman's motion
for reconsideration was denied by the Ombudsman in its Joint
Order dated November 14, 2005.[7]
Initially, an Information was filed with the Regional Trial
Court of Tarlac City. However, upon motion of GSIS, this was
withdrawn for re-filing with the Sandiganbayan, pursuant to
the Ombudsman's Order dated March 14, 2006. However, due
to the delay that attended the remand of the case records, the
two Informations for violation of Section 3(e) of R.A. No.
3019 were filed with the Sandiganbayan only on September
19, 2011.[8]
On May 10, 2012, the Sandiganbayan issued a minute
resolution finding probable cause and directing the issuance of
warrants of arrest of all the accused. On. July 10, 2012,
Amado Inocentes (Inocentes), one of the indicted GSIS
employees, filed an Omnibus Motion (1) for determination of
probable cause; (2) to quash the Information against him; and
(3) to dismiss the case on the ground of violation of his right
to speedy disposition of cases. Inocentes' Omnibus Motion
was denied by the Sandiganbayan in its Resolution dated
February 8, 2013. In due course, the accused posted their
respective cash bonds and were arraigned.[9]
Inocentes then filed a petition for certiorari with the Supreme
Court, docketed as G.R. Nos. 205963-64 and
entitled Inocentes v. People, assailing the denial'of his
Omnibus Motion. On July 7, 2016, the Court issued a
Decision,[10] which granted the petition for certiorari of
Inocentes. The Court opined that seven years had lapsed from
the filing of the complaint with the Ombudsman until the
filing of the Information with the Sandiganbayan; that the
same is unreasonable and violates Inocentes' right to speedy
disposition of his cases. [11]
On February 8, 2017, De Guzman filed a Motion to Dismiss,
[12]
 citing the Decision of this Court in Inocentes v. People. He
insisted that the cases against him should likewise be
dismissed on the basis of the doctrine of the law of the case.
He further argued that Section 11 (a) of Rule 122 of the Rules
of Court, which essentially mandates that a favorable appeal
by one of several accused affects all the accused, should apply
in his case.[13]
On March 20, 2017, the Sandiganbayan Seventh Division
issued the herein assailed Resolution, [14] which, inter alia,
denied De Guzman's motion to  dismiss  for being filed  out of
time  and for lack of merit.     The     Sandiganbayan opined
that: (1) the doctrine of the law of the case is not applicable to
De Guzman's cases;[15] (2) De Guzman failed to raise his right
to speedy disposition of cases against him at the earliest
opportunity;[16] and (3) he is not similarly situated with
Inocentes.[17] De Guzman sought a reconsideration of the
Resolution dated March 20, 2017,[18] but it was denied by the
Sandiganbayan in its Resolution[19] dated May 22, 2017.
Aggrieved, De Guzman filed this petition for certiorari
claiming that the Sandiganbayan gravely abused its discretion
in refusing to dismiss the cases against him despite the Court's
ruling in Inocentes v. People.
In sum, the issue presented to the Court for resolution is
whether the Sandiganbayan committed grave abuse of
discretion in refusing to dismiss the cases against De Guzman.
Ruling of the Court
The petition is dismissed.
A petition for certiorari, such as the one before the Court, will
prosper only if grave abuse of discretion is alleged and proved
to exist.[20] The abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or
hostility.[21] In this case, there was no'hint of whimsicality or
gross and patent abuse of discretion on the part of the
Sandiganbayan when it denied De Guzman's motion to
dismiss the charges against him.
As aptly ruled by the Sandiganbayan, De Guzman will not
benefit from the provisions of Section 11 (a) of Rule 122 of
the Rules of Court, which provides that "[a]n appeal taken by
one or more of several accused shall not affect those who did
not appeal, except insofar as the judgment of the appellate
court is favorable and applicable to the latter." Simply put,
Section 1 l(a) mandates that an appeal by one of several
accused may benefit the other accused if the appeal is
favorable and applicable to the rest of the accused.
In seeking the benefit of Section 1 l(a), De Guzman points out
that in Inocentes v. People, the Court ordered the dismissal of
the criminal charges against Inocentes, who is one of the
accused in the cases before the Sandiganbayan. As pointed out
by the Sandiganbayan, the provision is specifically applicable
to an appeal from a judgment or final order. The action
brought by De Guzman before this Court is a special civil
action for certiorari, not an appeal.
More importantly, the Court notes that De Guzman only raised
his right to speedy disposition of the cases against him only in
February 2017, after he was already arraigned and only after
the Court has issued its ruling in Inocentes in July 2016. De
Guzman had ample opportunity to raise his right to speedy
disposition of cases as early as May 2012 when the
Sandiganbayan issued its resolution finding probable cause to
indict the accused in the case below. However, despite the
numerous pleadings filed by De Guzman, he failed to invoke
his right to speedy disposition of cases.
Unlike Inocentes who raised his right to speedy disposition of
cases at the earliest opportunity, i.e., a couple of months after
the Sandiganbayan's finding, of probable cause, in his
Omnibus Motion, which is essentially a motion to quash, De
Guzman invoked his right five years after. His silence for five
years amounts to a waiver of his right to speedy disposition of
the charges against him. He was insensitive to the implications
and contingencies of the projected criminal prosecution posed
against him by not taking any step whatsoever to accelerate
the disposition of the matter, which inaction conduces to the
perception that the supervening delay seems to have been
without his objection and, hence, impliedly with his
acquiescence.[22]
While this Court recognizes the right to speedy disposition
quite distinctly from the right to a speedy trial, and although
this Court has always zealously espoused protection from
oppressive and vexatious delays not attributable to the party
involved, at the same time, we hold that a party's individual
rights should not work against and preclude the people's
equally important right to public justice. The delay in the
disposition of the case prejudiced not just the accused, but the
people as well.[23] Since De Guzman has completely failed to
assert his right seasonably, it is only proper and equitable to
give the parties, the accused and the people, fair opportunity to
obtain, and for the court to dispense, substantial justice.
Moreover, the motion to dismiss filed by De Guzman with the
Sandiganbayan is essentially a motion to quash the
Information filed by the Ombudsman. It should be noted that a
violation of the right to speedy disposition  of cases  ousts  the 
prosecution   of its  authority to  file  an Information,[24] which
is a ground for the quashal of an Information under Section
3(d) of Rule 117 of the Rules of Court. A motion to quash the
Information may be filed at any time before the accused enters
his plea.
In this case, De Guzman has long entered his plea and is
already participating in the proceedings for the presentation of
the prosecution's evidence when he filed his motion to
dismiss. Accordingly, De Guzman's motion to quash (in the
guise of a motion to dismiss) is filed beyond the reglementary
period.
WHEREFORE, in view of the foregoing disquisitions, the
petition for certiorari is hereby DENIED. The Resolutions
dated March 20, 2017 and May 22, 2017 issued by the
Sandiganbayan Seventh Division in SB-12-CRM-0127 to
0128 are AFFIRMED." (Caguioa, J., on leave.)

[ G.R. No. 193866, September 14, 2017 ]
SPOUSES ERNESTO M. MORAGA AND ELSIE C.
MORAGA V. PEOPLE OF THE PHILIPPINES
Sirs/Mesdames:
Please take notice that the Court, First Division, issued a
Resolution dated September 14,2017 which reads as follows:
"G.R. No. 193866 (Spouses Ernesto M. Moraga and Elsie C.
Moraga v. People of the Philippines).-This is a petition for
review on certiorari[1] assailing the Decision[2] dated
September 17, 2010 of the Court of Appeals (CA) in CA-G.R.
CR No. 27728 which affirmed with modification the
Decision[3] dated August 6, 2003 of Branch 79 of the Regional
Trial Court (RTC), Malolos, Bulacan in Criminal Case No.
748-M-97. The RTC found petitioners guilty of the crime of
estafa under Article 315, paragraph l(b) of the Revised Penal
Code (RPC).
Petitioners, spouses Ernesto (Ernesto) and Elsie (Elsie)
Moraga [collectively, Spouses Moraga], met private
complainant Marilou G. Camba (Marilou) through the Baptist
Church in Meycauayan, Bulacan, of which they are all
members.[4]
Between August to October 1996, Ernesto and Marilou
entered into several transactions over several pieces of jewelry
to be sold by Ernesto for Marilou on a consignment basis.
Upon receipt of the jewelry, Ernesto would sign for the same
and try to sell the jewelry within two weeks. If he is able to
sell them for a price higher than what was indicated in the
receipt, he is entitled to receive the profits. Any unsold
jewelry, however, must be returned to Marilou at the end of
the two-week period. Thus, on August 12, 21 and September
2, 1996, the parties transacted over jewelry worth
approximately P148,050[5]
Nevertheless, on October 2, 1996, and without turning over
any proceeds or unsold jewelry, Spouses Moraga went to
Marilou's house to ask for more pieces of jewelry to sell.
When Marilou demanded that they first remit the proceeds or
return all the unsold jewelry subject of their previous
transactions, Elsie issued six checks amounting to P214,750.
Thereafter, Marilou agreed to give them additional pieces of
jewelry on the condition that Spouses Moraga either sell them
and remit the proceeds or return all unsold jewelry within one
week from receipt.[6]
On October 23, 1996, Elsie paid for one set of jewelry and
returned another set. Four sets, however, still remained in her
possession. When Marilou tried to deposit the checks issued
by Elsie, these were dishonored due to the closure of the
account. Marilou thereafter demanded payment from the
spouses.[7] When the latter failed to pay despite formal
demand, Marilou filed suit with the Office of the Prosecutor. [8]
In her complaint-affidavit,[9] Marilou alleged that she incurred
the following damages due to Spouses Moraga's failure to
return the jewelry or turn over the proceeds of their sale:
Date of transaction Amount of Damage
1. August 12, 1996 P73,900.00
2. August 21, 1996 35,650.00
3. September 2, 1996 16,500.00
4. October 2, 1996 50,000.00
Total P17[6],050.00[10]
In addition, Marilou claims to have paid P3 0,000 as
acceptance fee and P1,000 for every court appearance for the
services of her counsel.[11] She also testified that P170,000 out
of the initial P214,750 debt remained unpaid. [12]
In an Information dated May 14, 1997, Spouses Moraga were
charged with estafa by the Assistant Provincial Prosecutor of
Malolos, Bulacan.[13] The Information states:
That on or about the 12th day of August up to the 2 nd day of
October, 1996, in the municipality of Meycauayan, province
of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping each other, by
means of false pretenses and fraudulent manifestations,
received in trust from Marilou G. Camba assorted pieces of
jewelry valued at P214,750.00 for the purpose of selling the
same on commission basis, with the obligation of turning over
the proceeds of the same or returning the said pieces of
jewelry, if not sold, but the said accused, once in possession of
the said pieces of jewelry and in[]spite of repeated demands to
return the same or turn over the proceeds of the sale thereof,
did then and there wilfully, unlawfully and feloniously, with
intent of gain and grave abuse of confidence and with deceit,
misappropriate, misapply and convert to their own personal
use and benefit the said pieces of jewelry valued at
P214,750.00, belonging to the said Marilou G. Camba, to the
damage and prejudice of the said Marilou G. Camba in the
said amount of P214,750.00.
Contrary to law.[14]
Ernesto and Elsie were arraigned on December 1, 1997 [15] and
September 16, 1999,[16] respectively. Both pleaded not guilty
to the crime charged.[17] Marilou testified for the prosecution
while the spouses appeared as witnesses for the defense. [18]
In his defense, Ernesto claimed that, save for two pieces of
jewelry worth P41,000, he paid for all the pieces of jewelry he
received on August 2 and 21, 1996. [19] He admitted signing the
receipts prepared solely by Marilou but qualified that they
agreed that the jewelry will be paid in "4 gives." [20] Ernesto
averred that only three pieces of jewelry remain unpaid,
valued at P20,000, P22,000, and P7,000, respectively, for a
total of P49,000.[21] He claims that he refused to pay for the
aforesaid jewelry because Marilou refused to issue the
corresponding receipts.[22]
Elsie, on the other hand, admitted issuing checks on
September 12, 1996 to settle Ernesto's liability to Marilou.
Although these checks were dishonored, Elsie claims she was
still able to pay Marilou the amounts covered by these checks,
only that the receipts evidencing her payment were lost. She
also admitted taking pieces of jewelry worth P66,700 from
Marilou on October 2, 1996 but that she only has a remaining
unpaid balance of P50,000."[23]
In its Decision[24] dated August 6, 2003, the RTC found
Spouses Moraga guilty of the crime charged. The dispositive
portion reads:
RESPONSIVE OF ALL THE FOREGOING, the Court
hereby renders judgment finding both accused Sps. Ernesto
Moraga and Elsie Moraga of #64 Sampaguia St., Michael
Subd. Meycauayan, Bulacan GUILTY beyond reasonable
doubt of the Crime of ESTAFA, defined and penalized under
the provisions of Article 315, paragraph l(b) of the Revised
Penal Code, sentencing both accused as follows:
(1. To suffer an indeterminate sentence of imprisonment of six
) (6) months and one (1) day of [Prision Correctional] as
minimum to four (4) years, two (2) months and one (1) day
of [Prision Correctional] as maximum. However, as
provided for under the Revised Penal Code, the accused
shall further suffer the penalty of imprisonment of sixteen
(16) years because the law provides for additional one (1)
year of imprisonment for every ten thousand pesos
(P10,000.00) in excess of twenty two thousand pesos
(P22,000.00) not to exceed twenty (20) years. So
P191,050.00 less P22,000.00 equals P169,000.00 divided
by P10,000.00 equals P16,905 or sixteen (16) years.
 
(2. To indemnify the complainant Marilou G. Camba jointly
) the sum of P191,050.00 and;
 
(3.
To pay the costs.
) I
SO ORDERED.[25] (Emphasis in the original.)
The RTC found that: (1) Ernesto, per his admission, received
from Marilou several pieces of jewelry to sell on consignment
basis; (2) only one set worth P22,000 was returned to Marilou;
(3) On October 2, 1996, Spouses Moraga convinced Marilou
to give them additional pieces of jewelry by issuing checks as
assurances of payment; (4) the checks issued to Marilou were
dishonored; (5) partial payment is not a defense to the
consummated crime of estafa; and (6) novation is not a ground
for extinguishing criminal liability.[26]
Spouses Moraga appealed the RTC's Decision before the CA.
In its Decision[27] dated September 17, 2010, the CA denied
the appeal and affirmed with modification the ruling of the
RTC. The dispositive portion of the CA's Decision reads:
WHEREFORE, the appeal is DENIED and the Decision
dated August 6, 2003 of the RTC, Branch 79, Malolos,
Bulacan in Criminal Case No. 748-M-97 is AFFIRMED with
modification in that accused-appellant Spouses Moraga are
hereby sentenced to suffer an indeterminate penalty of two (2)
years four (4) months and one (1) day to four (4) years and
two (2) months of prision correccional, as minimum, to
fifteen (15) years of reclusion temporal, as maximum and pay
private complainant the amount of P175,050.00
SO ORDERED.[28] (Emphasis in the original.)
The CA held that conspiracy was established in this case since
Elsie not only accompanied Ernesto when he first obtained
jewelry from Marilou, she herself later on asked for additional
pieces of jewelry from Marilou. Further, Elsie issued checks to
pay for the jewelry previously obtained by Ernesto. [29]
However, the CA agreed that Spouses Moraga should have
been charged with four separate crimes instead of one crime in
a single information. Their acts were neither continuous nor a
result of a single criminal intent or impulse, hence, it cannot
qualify as a continuous crime. [30] Notwithstanding such error,
the CA held that Spouses Moraga can no longer be convicted
of four separate crimes of estafa because they were only
charged with one crime in the Information. In any case,
Spouses Moraga are barred from raising the defect in the
Information as an issue since they only raised it in their appeal
to the CA. The CA opined that Spouses Moraga's failure to
file a motion for bill of particulars or a motion to quash before
their arraignment on the ground that they were charged with
more than one offense is a waiver of said ground. [31]
Based on the evidence presented, the CA ruled that Spouses
Moraga were correctly convicted of estafa under paragraph
l(b) of Article 315, instead of paragraph 2(d).[32] It, however,
lowered the total amount of damages in concurrence with the
Solicitor General, who averred that the amount of damages is
only P175,050 as opposed to the P191,050 imposed by the
RTC.[33]
Dissatisfied with the ruling of the CA, Spouses Moraga now
assail their conviction before us.
The issues presented are:
I. Whether the case should have been
dismissed because of the defective
Information; and
II. . Whether conspiracy between Spouses
Moraga was proven.
We deny the petition.
Spouses Moraga do not contest the ruling of the CA that four
separate informations should have been filed instead of one.
Indeed, Spouses Moraga's receipt of several pieces of jewelry
on separate dates constitute distinct, not continuing, crimes. A
continuing crime is a single crime committed through a series
of acts arising from one criminal intent or resolution.[34] As
aptly pointed out by the CA, each transaction entered into by
Spouses Moraga constitutes a crime in itself. Our ruling
in Gamboa v. Court of Appeals[35] is apropos:
The abstractions were not made at the same time and on
the same occasion, but on variable dates[.] Each day of
conversion constitutes a single act with an independent
existence and criminal intent of its own. All the conversions
are not the product of a consolidated or united criminal
resolution, because each conversion is a complete act by
itself. Specifically, the abstractions and the accompanying
deposits thereof in the personal accounts of private respondent
cannot be similarly viewed as "continuous crime". In the
above formulation of Cuello Calor, We cannot consider a
defalcation on a certain day as merely constitutive of partial
execution of estafa under Article 315, para. 1-b of the Revised
Penal Code. As earlier pointed out, an individual abstraction
or misappropriation results in a complete
execution or consummation of the delictual act of defalcation .
Private respondent cannot be held to have
entertained continuously the same criminal intent in making
the first abstraction on October 2, 1972 for the subsequent
abstractions on the following days and months until December
30, 1972, for the simple reason that he was not possessed of
any fore-knowledge of any deposit by any customer on any
day or occasion and which would pass on to his possession
and control. At most, his intent to misappropriate may arise
only when he comes in possession of the deposits on each
business day but not in futuro since petitioner company
operates only on a day-to-day transaction. As a result, there
could be as many acts of misappropriation as there are times
the private respondent abstracted and/or diverted the deposits
to his own personal use and benefit. Thus, it may be said that
the City Fiscal had acted properly when he filed only one
information for every single day of abstraction and bank
deposit made by private respondent. The similarity of pattern
resorted to by private respondent in making the diversions
does not affect the susceptibility of the acts committed to
divisible crimes.[36] (Italics in the original, underscoring
supplied. Citation omitted.)
The CA duly observed that Marilou, in a letter [37] dated
November 15, 1996, already made a demand upon Ernesto to
return the pieces of jewelry consigned to him under the first
transaction or turn over the proceeds of its sale. [38] Ernesto
failed to comply with the demand. Hence, all the elements of
the crime of estafa under paragraph l(b), Article 315[39] were
present even as to the first transaction alone. Since there are
four separate transactions involved, they should not have been
covered by one information. Four informations should have
been filed instead.
Under Section 3(f), Rule 117 of the Rules of Court, an accused
may move to quash the information when "more than one
offense is charged except when a single punishment for
various offenses is prescribed by law."
Spouses Moraga claim that the prosecution has the burden to
correct the information and that its failure to do so is ground
for the dismissal of the criminal charges against them.
We disagree.
First. There is nothing in the rules which provides that
charging more than one offense in a single information is a
ground for the outright dismissal of the criminal charge. [40] In
fact, absent any timely objection, the rules allow for a
conviction for as many offenses as are charged (in a single
complaint or information) and proved. Section 3, Rule 120
provides:
When two or more offenses are charged in a single complaint
or information but the accused fails to object to it before trial,
the court may convict him of as many offenses as are charged
and proved, and impose on him the penalty for each offense,
setting out separately the findings of fact and law in each
offense.
Second. Section 9 of Rule 117 clearly states that, save for
specific exceptions,[41] failure of the accused to assert any
ground for a motion to quash before he pleads to the complaint
or information shall be deemed a waiver of said objection.
Spouses Moraga do not appear to allege that any of the
exceptions under Section 9, Rule 117 apply here; their failure
to raise an objection under Section 3(f) of Rule 117 prior to
trial was thus correctly deemed a waiver of the objection under
such ground.
Third. Even assuming that Spouses Moraga were able to
timely raise such an objection, this would not have
automatically resulted to the dismissal of the criminal charges
against them. Sections 5 and 6 of Rule 117 provide:
Sec. 5. Effect of sustaining the motion to quash. - If the motion
to quash is sustained, the court may order that another
complaint or information be filed except as provided in
Section 6 of this rule. If the order is made, the accused, if in
custody, shall not be discharged unless admitted to bail. If no
order is made or if having been made, no new information is
filed within the time specified in the order or within such
further time as the court may allow for good cause, the
accused, if in custody, shall be discharged unless he is also in
custody for another charge.
Sec. 6. Order sustaining the motion to quash not a bar to
another prosecution; exception. - An order sustaining the
motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds
specified in Section 3(g) and (i) of this Rule.
II
The guilt of Ernesto for the crime of estafa under paragraph
1(b), Article 315 was established in this case since all the
elements thereof are present. [42] First, he received jewelry from
Marilou for the purpose of selling it. Ernesto must turn over
the proceeds of their sale to Marilou; otherwise, he must return
the jewelry. Second, he failed to turn over either the proceeds
of the sale or the unsold pieces of jewelry to Marilou. Third,
Marilou suffered damages as a result thereof. Fourth, Marilou
made a demand upon Ernesto to return the jewelry or turn over
the proceeds of its sale, but such demand went unheeded.
Spouses Moraga, however, argue that Elsie's guilt for the
crime charged has not been proven. They assail the finding
that Elsie conspired with Ernesto to commit the crime
of estafa.
The question of whether conspiracy was proven is
undoubtedly a question of fact. Time and again, we have held
that save for certain exceptions,[43] a petition for review
on certiorari should only raise questions of law. [44] None of
these exceptions were alleged or shown to exist by Spouses
Moraga. Thus, we defer to the factual findings of the RTC, as
affirmed by the CA, given that they were in a better position to
observe and determine matters of credibility of the witnesses,
having heard them and observed their deportment during trial.
[45]
In any case, we have gone over the records of the case and
find no cogent reason to set aside the findings of the CA on
the issue of conspiracy. Although the defense portrays Elsie as
a wife who merely helped her husband settle his debts, her
own testimony belies their claim of her lack of involvement in
the transaction with Marilou:
q- Why did you give [Marilou] those checks?
   
a- Because when I first got jewelries from her sir, I issued a
checks (sic) for payment to the jewelries that I got on
September 12, 1996.
   
q- Can you clarify that, did I get it right that you get (sic)
jewelries on Sept. 12, 1996?
a- That was the balance of Mr. Ernesto Moraga and she
required me to issue check for that balance. [46] (Emphasis
supplied.)
In proving conspiracy, the evidence must show a common
design or purpose to commit the crime among the co-
principals.47 In addition, it must be shown that each of the
accused performed an overt act in pursuance or furtherance of
the conspiracy. Here, Elsie admitted that not only did she pay
for the pieces of jewelry, she herself obtained them. Thus,
Spouses Moraga's claim that Elsie simply helped Ernesto is
erroneous. Elsie herself has shown her active participation in
the crime charged. In fact, she was as vital to the success of
their ploy as Ernesto. Without her issuance of the checks,
Marilou would not have given Spouses Moraga additional WHEREFORE, the petition is DENIED. The September 17,
pieces of jewelry or desisted from demanding the return of the 2010 Decision of the Court of Appeals in CA-G.R. CR No.
pieces of jewelry previously obtained. Clearly then, we cannot 27728 is AFFIRMED with the MODIFICATION that
put the blame on Ernesto alone. petitioners-spouses Ernesto and Elsie Moraga are sentenced to
a penalty of imprisonment of two years, four months and one
III day of prision correccional as minimum to 20 years
of reclusion temporal as maximum. They are also ordered to
The CA correctly modified the amount of damages to be paid pay private complainant Marilou G. Camba the amount of
by Spouses Moraga. The total amount, however, still needs P176,050.
further correction. While the CA held that the amount for the
August 12 transaction is what was indicated in the receipt, SO ORDERED."
which is P73,900,[49] it seems that it still used P72,900, one of
the figures given by Marilou in her testimony, [50] in computing
the total amount of damages. Thus, the CA held that the total
amount of damages is P175,050. The CA should have used the
amount of P73,900 instead, which should then result in the
correct sum of damages of P176,050.[51] Consequently, a
modification of the amount of damages that Spouses Moraga
should pay is in order.

The term of imprisonment imposed should likewise be

modified. The CA imposed an indeterminate penalty of two
years, four months and one day to four years and two months
of prision correccional as minimum to 15 years of reclusion
temporal as maximum. As held in People v. Temporada:[52]
The prescribed penalty for estafa under Article 315, par. 2(d)
of the RPC, when the amount defrauded exceeds P22,000.00,
is prision correccional maximum to prision mayor minimum.
The minimum term is taken from the penalty next lower or
anywhere within prision correccional minimum and medium
(i.e., from 6 months and 1 day to 4 years and 2 months).
Consequently, the RTC correctly fixed the minimum term for
the five estafa cases at 4 years and 2 months of prision
correccional since this is within the range of prision
correccional minimum and medium.

On the other hand, the maximum term is taken from the

prescribed penalty of prision correccional maximum to
prision mayor minimum in its maximum period, adding 1 year
of imprisonment for every P10,000.00 in excess of
P22,000.00, provided that the total penalty shall not exceed 20
years. However, the maximum period of the prescribed
penalty of prision correccional maximum to prision mayor
minimum is not prision mayor minimum as apparently
assumed by the RTC. To compute the maximum period of the
prescribed penalty, prision correccional maximum to prision
mayor minimum should be divided into three equal portions of
time each of which portion shall be deemed to form one period
in accordance with Article 65 of the RPC. Following this
procedure, the maximum period of prision
correccional maximum to prision mayor minimum is from 6
years, 8 months and 21 days to 8 years. The incremental
penalty, when proper, shall thus be added to anywhere from 6
years, 8 months and 21 days to 8 years, at the discretion of the
court.[53] (Italics in the original, citations omitted.)
Since it is within the minimum term imposable for estafa in
accordance with Temporada, the CA correctly imposed the
minimum term of imprisonment at two years, four months and
one day to four years and two months of prision correccional.

With respect to the maximum term of imprisonment, an

additional year of imprisonment shall be imposed for every
P10,000 in excess of P22,000. However, the maximum term of
imprisonment shall in no case exceed 20
years. Temporada instructs that the incremental penalty is
computed by deducting P22,000 from the amount defrauded.
The difference shall then be divided by P10,000.[54] Here, the
amount involved is P176,050. The difference between said
amount and P22,000 is P154,050. The difference divided by
P10,000 results in an additional penalty of 15 years of
imprisonment. After adding that to the prescribed maximum
period, the maximum term of imprisonment imposed should
be increased to 20 years.
 Please take notice that the Court, Third Division, issued a
Resolution dated January 29, 2020, which reads as follows:

"G.R. No. 237211 (People of the Philippines, Plaintiff-

Appellee, v. Albit Humiding, Accused-Appellant). - Assailed
in this appeal[1] is the Decision[2] dated 31 August 2017 of the
Court of Appeals (CA) in CA-G.R. CR-HC No. 08471, which
affirmed the Decision[3] dated 02 May 2016 of Branch 14,
Regional Trial Court (RTC) of Lagawe, Ifugao, in Crim. Case
No. 2043, and found accused-appellant Albit
Humiding[4] (accused-appellant) guilty beyond reasonable
doubt for the crime of murder under Article 248 of the
Revised Penal Code (RPC) committed against the victim, John
Dulladul (John).

Antecedents

In an Information dated 27 February 2012, accused-appellant

was charged with murder, the accusatory portion of which
reads:

That on or about the afternoon of February 23, 2012 at

Mompolia, Hingyon, Ifugao, and within the juridiction of this
Honorable Court, the above-named accused, by means of
treachery and with intent to kill, DID then and there willfully,
unlawfully, and feloniously hack one John Dulladul on
different parts of his upper body with the use of an Ifugao
bolo, resulting in the victim's instantaneous death.

CONTRARY TO LAW, and to the damage and prejudice of

the victim's heirs.[5]

When arraigned, accused-appellant pleaded not guilty.[6] After

pre-trial,[7] trial on the merits ensued.

Version of the Prosecution

On 23 February 2012, Lopez Indopia (Lopez) called on his

neighbors, Pilando Payyudon (Pilando), Manuel Pugong
(Manuel), Lopez Lunag (Lunag), John Duladul (John) and
accused-appellant, for a numpadang-a or bayanihan. Lopez
solicited his neighbors' help in hauling lumber from the forest
to his house at Luhadan Brgy. Mompolia, Hingyon, Ifugao. [8]

Lopez prepared food and drinks for the occasion. [9] After

having some food and drinks, a few of the neighbors left
Lopez, John and accused-appellant who continued conversing
with each other. During this time, John asked for tobacco from
Lopez, who stood up and went inside his house to get some. [10]

On the way to Lopez' house, accused-appellant took

a bolo hanging from the wall of Berlinda Pugong's (Berlinda)
house. As Lopez was about to give John the tobacco, accused-
appellant struck John with the bolo from behind without
warning, causing the latter to fall. [11] Accused-appellant hacked
the victim again while the latter was lying on the ground.
[12]
 Lopez asked accused-appellant why he attacked John, but
__________ with nary a word, the latter turned toward Lopez and
attempted to hack him. Fearing for his life, Lopez ran away.
[13]
[ G.R. No. 237211, January 29, 2020 ]  Meanwhile, John succumbed to multiple hack wounds on
the upper part of his body.[14]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-
APPELLEE, V. ALBIT HUMIDING, ACCUSED- Upon report of the incident, police officers, including SPO1
APPELLANT Edward Nanglegan (SPO1 Nanglegan), responded to the crime
scene. They interviewed witnesses who confirmed that
accused-appellant killed John.[15]
Sirs and Mesdames:
While searching for accused-appellant, police officers heard a
loud voice some 150 meters away. [16] They tracked the voice
from a forested area, where they found accused-appellant
lying down. SPO1 Nanglegan recognized accused-appellant
and arrested him for the killing of John.[17]
Version of the Defense
The defense offered the lone testimony of accused-appellant.
While admitting that he participated in the bayanihan,
[18]
 accused-appellant claimed that after their drinking session
at noon, he went to his grandfather's house, some 1.5
kilometers from Lopez's house, to sleep off his drowsiness.
[19]
 He was thus surprised when the police officers came to his
grandfather's house later that day to arrest him. He voluntarily
went with them to the police station.[20]
Ruling of the RTC
On 02 May 2016, RTC[21] found accused-appellant guilty
beyond reasonable doubt of the crime of murder, and
sentenced him to suffer the penalty of reclusion perpetua.
Also, the RTC ordered accused-appellant to pay the heirs of
John the amounts of: 1) Php75,000.00 as civil indemnity; 2)
Php75,000.00 as moral damages; and 3) Php30,000.00 as
exemplary damages.
The RTC found the prosecution's evidence sufficient to prove
that John was killed by accused-appellant. It also concluded
that John's killing was attended with treachery since he was
unsuspectingly attacked by accused-appellant from the back,
depriving him of any chance to defend himself. Finally, it
disregarded accused-appellant's denial and alibi since he was
positively identified by both Lopez and Berlinda as John's
killer.
Ruling of the CA
The CA agreed with the RTC's findings and ruled that
treachery was sufficiently proven based on the swiftness of
accused-appellant's attack, depriving John of any opportunity
to defend himself. John had no idea that accused-appellant
would hack him as they were part of the bayanihan, and they
were even drinking with each other prior to the attack. Neither
did it appear that John provoked accused-appellant or had an
altercation with the latter.[22]
The CA dismissed accused-appellant's objection to the
sufficiency of the information. It concluded that the
allegations in the information against accused-appellant were
sufficient to apprise him of the nature of the charge against
him and enable him to formulate his defense of denial. The
appellate court also ruled that accused-appellant's objection to
the information was raised late in the proceedings. It opined
that accused-appellant should have carried out his objection
through a motion to quash before arraignment. [23]
Thus, the CA affirmed the RTC's conviction with
modifications in that: 1) accused-appellant is not eligible for
parole; 2) the award of exemplary damages is increased from
Php30,000.00 to Php75,000.00; 3) temperate damages in the
amount of Php25,000.00 is likewise awarded; and 4) all the
damages awarded shall earn legal interest at the rate of six
percent (6%) per annum from the finality of the Decision until
fully paid.[24]
Hence, the present appeal.
Ruling of the Court
The appeal lacks merit.
The determination of the guilt of an accused hinges on how a
court appreciates evidentiary matters in relation to the
requisites of an offense. It is a fundamentally factual issue.
This Court, however, is not a trier of facts. This Court only
undertakes a factual calibration of the case in the following
exceptional instances: (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is
grave abuse of discretion; (3) when the findings are grounded
entirely on speculations, surmises or conjectures; (4) when the
judgment of the Court of Appeals is based on misapprehension
of facts; (5) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee; (6) when the
findings of fact are conclusions without citation of specific
evidence on which they are based; (7) when the Court of
Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered,
would justify a different conclusion; and (8) when the findings
of fact of the Court of Appeals are premised on the absence of
evidence and are contradicted by the evidence on record.
[25]
 None of these instances was shown to exist in this case.
There is no indication that the trial court overlooked,
misunderstood or misapplied the surrounding facts and
circumstances of the case. Its findings were likewise affirmed
by the CA. Hence, this Court defers to the RTC in this respect,
especially considering that it was in the best position to assess
and determine the credibility of the witnesses presented by
both parties.[26]
At the onset, this Court sees no merit in accused-appellant's
argument questioning the sufficiency of the allegations in the
information. In the recent case of People v. Solar,[27] this Court
pronounced that the Information must specify the ultimate
facts related to the qualifying or aggravating circumstance
alleged therein. Otherwise, the Information may be subject to
a motion to quash, or a motion for bill of particulars. Hence,
mere allegation of the attendant qualifying circumstance of
"treachery," without stating the ultimate facts, or without
referencing the pertinent portions of the resolution finding
probable cause against the acccused, and attaching the same to
the Information, as in this case, is no longer sufficient.
This Court likewise ruled in Solar that insofar as judgments or
decisions which are pending appeal, the same shall be judged
depending on whether the accused waived the right to question
the defective statement of aggravating or qualifying
circumstance in the Information.
Under Section 9 of Rule 116 of the Rules of Court, an accused
may, before arraignment, move for a bill of particulars to
properly plead and prepare for trial.[28] Likewise, Rule 117
thereof allows an accused to file a motion to quash a patently
insufficient or defective information.[29] In both instances, Our
procedural rules require the accused to avail of these remedies
prior to arraignment. Hence, in order to successfully object to
the Information, the objection must not only be meritorious,
but must also be timely exercised.
In this case, this Court notes that accused-appellant belatedly
raised his objection to the sufficiency of the allegations in the
Information. Not only did accused-appellant fail to move for a
bill of particulars or quash the information before his
arraignment, he also participated in the trial and only raised
his objection to the Information on appeal. Certainly, this
Court cannot accord merit to accused-appellant's plea without
unduly prejudicing the State, which, on account of accused-
appellant's failure, was also deprived of the opportunity to
amend the Information[30] or submit a bill of particulars. [31]
We now discuss the propriety of accused-appellant's
conviction. After reviewing the records, this Court is
convinced that accused-appellant's guilt has been established
beyond reasonable doubt. The testimonies of Lopez and
Berlinda clearly narrated how accused-appellant suddenly
attacked John with a bolo until the latter succumbed to his
death. Accused-appellant has not proferred any reason for
Lopez and Berlinda to falsely testify against him. [32] On this
note, this Court likewise agrees with the RTC's observation
that for a small and tight-knit community, it is against human
nature for neighbors to falsely accuse a fellow resident of
killing someone therefrom.[33]
Accused-appellant's alibi and denial that he immediately left
after the drinking session with Lopez and John and that he was
in his grandfather's house when the killing happened is
worthless in the face of positive identification. [34] Alibi and
denial are outweighed by positive identification that is
categorical, consistent and untainted by any ill motive on the
part of the eyewitness testifying on the matter. Alibi and
denial, if not substantiated by clear and convincing evidence,
are negative and self-serving evidence undeserving of weight
in law.[35] In this case, the RTC and CA did not err in
disregarding accused-appellant's denial since he failed to
present any other evidence to corroborate the same.
Likewise, even if this Court assumes that accused-appellant
was indeed in his grandfather's house after the drinking
session with John and the other participants in the bayanihan,
the defense did not present convincing evidence that it was
physically impossible for accused-appellant to have been
present at the time of the commission of the crime. For a
defense of alibi to prosper, accused-appellant must prove not
only that he was somewhere else when the crime was
committed but he must also satisfactorily establish that it was
physically impossible for him to be at the crime scene at the
time of its commission.[36] Physical impossibility refers to
distance and the facility of access between the crime scene and
the location of the accused when the crime was committed. It
must be demonstrated that he was so far away and could not
have been physically present at the crime scene and its
immediate vicinity when the crime was committed.[37]
eyewitnesses establishes, with moral certainty, that accused-
appellant treacherously took John's life. Hence, his conviction
for murder must stand.
As to the penalty, the CA included in the dispositive portion of
its decision, the phrase, "appellant is NOT ELIGIBLE for
parole."[41] In accordance with A.M. No. 15-08-02-SC,[42] the
phrase "without eligibility for parole" need not be used to
qualify the penalty imposed on accused-appellant if there is no
aggravating circumstance that would warrant the imposition of
the death penalty. It is already understood that convicted
persons penalized with an indivisible penalty are not eligible
for parole. Since no such modifying circumstance, other than
treachery, was established in this case, the phrase "appellant is
NOT ELIGIBLE for parole" should be deleted.
Furthermore, the CA's award of temperate damages in the
amount of Php 25,000.00 should be increased to Php
50,000.00. In People v. Jugueta,[43] this Court fixed the amount
of Php 50,000.00 as temperate damages in homicide or murder
cases when no evidence of burial and funeral expenses is
presented in the trial court.
WHEREFORE, the appeal is hereby DISMISSED.
Accordingly, the Decision dated 31 August 2017 of the Court
of Appeals in CA-G.R. CR-HC No. 08471, finding accused-
appellant Albit Humiding GUILTY beyond reasonable doubt
of Murder under Article 248 of the Revised Penal Code,
is AFFIRMED with MODIFICATION. Accused-appellant
is sentenced to suffer reclusion perpetua, and
is ORDERED to pay the heirs of John Dulladul the amounts
of Php 75,000.00 as civil indemnity, Php 75,000.00 as moral
damages, Php 75,000.00 as exemplary damages and Php
50,000.00 as temperate damages. Legal interest of six percent
(6%) per annum is imposed on all damages awarded from the
date of finality of this Resolution until fully paid. [44]
SO ORDERED."

In the past, this Court has declared that the distances of two
(2), three (3), or even five (5) kilometers were not too far to
preclude the possibility that the accused was present at
the locus criminis. Accused-appellant himself admitted that his
grandfather's house is only 1.5 kilometers away from Lopez's
house.[38] In the absence of any other evidence supporting
accused-appellant's alibi, this Court cannot deem it physically
impossible for accused-appellant to have killed John before
staying at his grandfather's house.

With respect to the qualifying circumstance of treachery, this

Court shares the RTC and CA's view. Berlinda saw accused-
appellant get the bolo from her house and hack John from the
back, causing him to fall to the ground. Lopez was also
surprised when he witnessed accused-appellant suddenly strike
John with a bolo. From these circumstances, it can be deduced
that John had no clue that he would be attacked by accused-
appellant. Jurisprudence posits that a swift and unexpected
attack on an unarmed victim that insures its execution without
risk to the assailant arising from the defense of his victim is an
indication that treachery is present.[39] The essence of treachery
is the sudden and unexpected attack by the aggressor on the
unsuspecting victim, depriving the latter of any real chance to
defend himself, thereby ensuring its commission without risk
to the aggressor and without the slightest provocation on the
part of the victim.[40] To this Court, the narration of the two (2)
 Please take notice that the Court, Third Division, issued a
Resolution dated November 20, 2019, which reads as follows:

“G.R. No. 237203 (People of the Philippines v. Gerardo dela

Peña y Valencia) – This appeal seeks to reverse and set aside
the Decision[1] dated 26 September 2017 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 06835, which affirmed
with modification the Judgment[2] dated 12 February 2014 of
Branch 38, Regional Trial Court (RTC) of Daet, Camarines
Norte, finding Gerardo V. Dela Peña (accused-appellant)
guilty of the crime of murder, defined and penalized under
Article 248 of the Revised Penal Code (RPC).

Antecedents

Accused-appellant, along with his co-accused, Armenio Dela

Peña (Armenio), and five (5) unnamed suspects, were charged
with murder under an Information[3] dated 03 August 2001, to
wit:

That on or about 11:00 in the evening of April 29, 2001 at

Barangay Manlucugan, municipality of Vinzons, province of
Camarines Norte, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with intent to
kill, with treachery and evident premeditation and while armed
with a Cal. 45 pistol, did, then and there wilfully, unlawfully
and feloniously shoot one Melchor [dela] Peña y Jordas on his
left face and neck which caused his instantaneous death, to the
damage of the heirs of the victim.

CONTRARY TO LAW.

It was only in 2013 when accused-appellant was arrested. On

arraignment, he entered a plea of not guilty, [4] and trial on the
merits ensued.

Version of the Prosecution

Prosecution witness Pedro Dela Peña (Pedro) testified that on

21 April 2001, he and his brothers, Melchor, Alex, and Robert,
all surnamed Peña, went to Barangay Manlucugan, Vinzons,
Camarines Norte, to celebrate the town fiesta. At around 11:00
pm, while watching the party from outside the dance hall with
his barrio mates, he saw Melchor standing near a well-lit
pavement about three (3) meters away. Their uncle, accused-
appellant in this case, suddenly appeared on Melchor’s right
side, and touched Melchor’s shoulder. Accused-appellant then
moved to the left, took out his .45 caliber pistol, and shot
Melchor on his left cheek. When Melchor fell to the ground,
Armenio, now deceased, shot him on the nape using a .45
caliber pistol.[5] Accused-appellant and Armenio were
accompanied by five (5) unidentified men as their back-up. [6]

Pedro’s testimony was corroborated by Alex, who also

witnessed the shooting, as he was standing five (5) meters
away from the incident. He testified having clearly seen the
shooting because of the light coming from the electric post. [7]

Pedro and Alex alleged that Gerardo and Armenio were

[ G.R. No. 237203, November 20, 2019 ] members of the New People’s Army, who suspected Melchor
of being an intelligence asset of the military, which prompted
PEOPLE OF THE PHILIPPINES V. GERARDO DELA them to shoot the latter. [8]
PEÑA Y VALENCIA
Based on the death certificate, Melchor’s cause of death was
hemmorhagic shock due to gunshot wound.[9]
Sirs and Mesdames:
Version of the Defense

Emilio Abejoro, then Chief Tanod for Barangay Manlucugan,

was assigned to secure the dance celebration. He testified that
on the date and time of the incident, he was at the gate of the
dance hall when he heard the gunshot. A commotion ensued
and people ran away. He did not see Pedro among those
present at the dance hall, and only saw him thirty (30) minutes
after the incident.[10]
Ruling of the RTC
In a Judgment[11]  dated 12 February 2014, the RTC found
accused-appellant guilty of the crime of murder, viz:
WHEREFORE,, the prosecution having proven beyond
reasonable doubt the guilt of the accused Gerardo [dela] Peña
y Valencia of the crime of Murder, he is hereby sentenced to
reclusion perpetua. Likewise, he is adjudged to pay the heirs
of the victim the following damages:
 
xxx
SO ORDERED.[12]
Ruling of the CA
By a Decision[13] promulgated on 26 September 2017, the CA
denied the appeal and affirmed with modification[14] the ruling
of the RTC. The CA held that the prosecution succeeded in
proving Gerardo's guilt beyond reasonable doubt. It affirmed
the penalty imposed but modified the amount of damages
awarded as follows: civil indemnity, moral, and exemplary
damages in the amount of PhP75,000.00 each, temperate
damages[15] in the amount of Php50,000.00. All awards are
subject to six percent (6%) interest per annum from date of
finality of judgment until fully paid to conform with recent
jurisprudence.[16]
Issue
The sole issue in this case is whether or not the CA erred in
affirming accused-appellant's conviction for murder under
Article 248 of the RPC.
Ruling of the Court
The appeal lacks merit.
To sustain a conviction for murder, as defined and penalized
under Article 248 of the RPC,[17] the prosecution must
establish the following elements: (1) that a person was killed;
(2) that the accused killed him or her; (3) that the killing was
attended by any of the qualifying circumstances mentioned in
Article 248 of the RPC; and (4) that the killing is not parricide
or infanticide.[18]
At the outset, it is important to note that the findings of the
trial courts are given the highest degree of respect, [19] and this
rule becomes even more compelling when the factual findings
carry the full concurrence of the CA,[20] as in the instant case.
Such findings are final and conclusive on appeal, unless there
is a demonstrable error in appreciation, or a misapprehension
of the facts as to materially affect the disposition of the case.
[21]
Accused-appellant, however, failed to substantiate any
circumstance to warrant a review of the findings of the RTC
and the CA.
The CA correctly held that accused-appellant committed the
crime of murder. The testimonies of the prosecution witnesses,
Pedro and Alex, were detailed, consistent, candid and
straightforward in stating that they saw how Melchor was shot
by accused-appellant. On the other hand, accused-appellant's
bare allegation that their testimonies were too incredible to be
believed deserves no credit. Again, it is well-settled that the
trial court's factual findings on the credibility of witnesses and
their testimonies are accorded high respect, if not conclusive
effect, due to the unique opportunity afforded to these courts
to observe the witnesses in court and perceive their demeanor,
conduct, and attitude.[22]
Contrary to accused-appellant's allegation, both witnesses
were able to positively identify him as the person who shot
Melchor on his left cheek. In light of the witnesses' positive
identification of the accused-appellant, the latter's
uncorroborated defense of alibi and denial must fail. It is
puzzling that accused-appellant himself did not even take the
stand to deny the positive assertions of Pedro and Alex or to
substantiate his defenses. [23] True, accused-appellant had the
right to opt out of testifying on his own behalf. However, this
leaves the Court with no choice but to disregard his already
inherently weak defenses. It has been held time and again that
the defense of alibi is the weakest of all defenses, for it is easy
to contrive and difficult to disprove.[24] Likewise, a denial is
inherently weak and crumbles in the light of positive
declarations of eyewitnesses who testified on affirmative
matters that the accused-appellant was at the scene of the
crime, and was the perpetrator thereof.[25]
It is also worth mentioning that the accused-appellant evaded
arrest for more than ten (10) years. Flight is an indication of
guilt. Jurisprudence tells us that the flight of an accused, in the
absence of a credible explanation, would be a circumstance
from which an inference of guilt may be established. A truly
innocent person would normally grasp the first available
opportunity to defend himself and assert his innocence. [26]
Accused-appellant points out to the testimonies of Pedro and
Alex that Melchor was shot twice, once by accused-appellant
on the cheek, and once by Armenio on the nape. To accused-
appellant, this is inconsistent with the findings on the post-
mortem report and the certificate of death.[27] We disagree. It is
settled that a certificate of death merely establishes the fact of
death and its immediate, antecedent and underlying causes,
and is not meant to detail every injury sustained by the
deceased.[28]
Verily, the Court is convinced that the prosecution was able to
establish the fact of the shooting, and the identity of the
accused-appellant as the perpetrator thereof.
Anent the qualifying circumstances of evident premeditation
and treachery, it is settled that in criminal cases, the State must
specifically allege in the information the details of the crime,
as well as the details of any circumstance aggravating the
accused's liability for the crime. It is no longer sufficient to
merely allege that the crime is qualified by "treachery" or
"evident premeditation". The information must also contain
supporting factual averments constituting the alleged attendant
circumstances in the crime committed.[29]
However, it also bears stressing that the procedural remedies
available to the accused who believes that the Information is
vague or defective must be availed of prior to arraignment.
Section 9, Rule 116 of the Rules of Court (Rules) provides that
the accused may, before arraignment, move for a bill of
particulars to enable him to properly plead and prepare for
trial.[30] Meanwhile, Rule 117 of the Rules allows an accused
to file a motion to quash a patently insufficient or defective
information prior to arraignment.[31] To successfully avail of SALABAS, RESPONDENTS.
either remedy, the objection must not only be meritorious, but
it must also be timely exercised. [32] Here, accused-appellant [G.R. NO. 182090]
did not raise his objection to the sufficiency of the allegations
in the Information, thus, he is deemed to have waived the ELIZABETH N. OROLA VDA. DE SALABAS,
same. PETITIONER, VS. HON. EDUARDO R. ERMITA, HON.
MANUEL B. GAITE, P/INSP. CLARENCE DONGAIL,
P/INSP. JONATHAN LORILLA,[1] PO3 ALLEN
The Court is not convinced that evident premeditation was
WINSTON HULLEZA AND PO2 BERNARDO CIMATU,
established because the prosecution's evidence was limited to RESPONDENTS.
what transpired during the shooting. There was no evidence
adduced to show that the accused-appellant had decided to kill RESOLUTION
Melchor, that he had previously planned and prepared how to
commit the crime, and that sufficient time had lapsed between
the decision to commit the crime and the actual commission LEONARDO-DE CASTRO, J.:
thereof. Absent a clear and positive proof of the overt act of
planning, evident premeditation cannot be appreciated to The consolidated petitions in the case at bar stem from the
qualify the offense.[33] October 2, 2006 Resolution[2] of Secretary of Justice Raul
Gonzalez, ordering the Provincial Prosecutor of Negros
As regards the qualifying circumstance of treachery, it is Oriental to file an amended Information for Kidnapping and
settled that the same must be proven by clear and convincing Murder against the following persons:
evidence. There is treachery when the offender commits any
of the crimes against persons, employing means and methods 1. P/Insp. Clarence Dongail;
or forms in the execution thereof which tend to directly and 2. Manolo G. Escalante;
specially ensure its execution, without risk to himself arising 3. Ronnie Herrera;
from the defense which the offended party might make. [34] 4. SPO2 Freddie Natividad;
5. SPO4 Jimmy Fortaleza;
6. July ("Kirhat" Dela Rosa) Flores;
In the instant case, the prosecution was able to establish that
7. Carlo "Caloy" De Los Santos;
the killing of Melchor was attended with the qualifying
8. PO1 Bernardo Cimatu;
circumstance of treachery. The testimonies of the witnesses of 9. PO2 Allen Winston Hulleza;
the prosecution established that the victim was merely 10. Insp. Jonathan Laurella;
standing, observing the dance party, and enjoying 11. Lorraine "Lulu" Abay;
the fiesta celebration, when the accused-appellant suddenly 12. Manerto Cañete;
approached him unprovoked, without warning and swiftly and 13. Elma Cañete
deliberately shot him, giving him no chance to defend himself, 14. Elson Cañete; and
retaliate, or escape. The essence of treachery is the sudden and 15. Jude Montilla[3]
unexpected attack by an aggressor on the unsuspecting victim,
depriving him of any chance to defend himself and thereby
ensuring its commission without risk to the aggressor. [35] This From this Resolution, Jimmy Fortaleza and Freddie
is clearly present in the instant case. Natividad filed a Petition for Certiorari with the Court of
Appeals, while Clarence Dongail, Jonathan Lorilla, Allen
Indeed, the CA correctly appreciated the aggravating Winston Hulleza, and Bernardo Cimatu appealed to the
circumstance of treachery. Hence, the CA did not commit any Office of the President. When the Court of Appeals
dismissed[4] the Petition for Certiorari, Fortaleza and
reversible error in affirming the findings of the RTC that
Natividad filed a Petition for Review with this Court, which
accused-appellant is guilty of the crime of murder beyond
was docketed as G.R. No. 179287. The Office of the
reasonable doubt. President, on the other hand, set aside the October 2, 2006
Resolution of the Department of Justice. To assail this
WHEREFORE, premises considered, the appeal is Decision[5] dated September 19, 2007 and the subsequent
hereby DISMISSED. Accordingly, the Decision dated 26 Resolution[6] dated January 9, 2008 denying her Motion for
September 2017 of the Court of Appeals in CA-G.R. CR-HC Reconsideration, complainant Elizabeth Orola-Salabas filed a
No. 06835, finding accused-appellant Gerardo V. Dela Peña Petition for Certiorari with this Court which was docketed as
guilty of the crime of Murder under Article 248 of the Revised G.R. No. 182090.
Penal Code, is AFFIRMED in toto.
The procedural antecedents of the case are as follows:
SO ORDERED." (Leonen, J., on official business.)
Maximo Lomoljo, Jr., Ricardo Suganob, and Eleuterio Salabas
were allegedly kidnapped in Bacolod City on August 31,
2003. A few days later, their dead bodies were found in
different places in Negros Oriental. Several criminal
complaints were filed in relation to this incident. The first was
filed against Police Inspector (P/Insp.) Clarence
Dongail alias Dodong and fifteen other John Does before the
Bacolod City Prosecution Office. Investigating Prosecutor
Rosanna V. Saril-Toledano issued a Resolution dated October
24, 2003 dismissing the complaint for lack of probable cause.
[ G.R. No. 179287, February 01, 2016 ]
On October 16, 2003, Elizabeth Orola-Salabas, wife of
Eleuterio, filed an Amended Criminal Complaint
PCI JIMMY M. FORTALEZA AND SPO2 FREDDIE A. against P/Insp. Dongail, Manolo Escalante and fifteen other
NATIVIDAD, PETITIONERS, VS. HON. RAUL M. John Does for Kidnapping with Murder before the Municipal
GONZALEZ IN HIS CAPACITY AS THE SECRETARY Trial Court (MTC) of Guihulngan, Negros Oriental. The
OF JUSTICE AND ELIZABETH N. OROLA VDA. DE complaint was docketed as Criminal Case No. 10-03-437.
However, on January 13, 2004, the MTC issued a
Resolution[7] dismissing the Amended Criminal Complaint for
lack of factual and legal merit.
On March 1, 2004, Orola-Salabas filed another Amended
Affidavit Complaint for Kidnapping with Murder before the
Negros Oriental Provincial Prosecution Office against P/Insp.
Dongail, Ramonito Estanislao, Manolo Escalante, Ronnie
Herrera, Senior Police Officer (SPO) 2 Freddie Natividad,
PCI Jimmy Fortaleza, Police Officer (PO) 1 Bernardo
Cimatu, PO2 Allen Winston Hulleza, Insp. Jonathan
Lorilla, SPO1 Agustilo Hulleza, Jr., Lorraine Abay, July
Flores, Carlo de los Santos, Mamerto Canete, Elma Cañete,
Bruno Canete, Elson Canete and Warlito Canete. The
Complaint was docketed as I.S. Case No. 2004-78. On August
9, 2004, Asst. Provincial Prosecutor Joseph A. Elmaco issued
a Resolution finding probable cause against P/Insp.
Dongail and Ramonito Estanislao and "15 other 'John Does'
for the death of victim Eleuterio Salabas." The case against
respondents Manolo Escalante, Ronnie Herrera, SPO2 Freddie
Natividad, SPO4 Jimmy Fortaleza, PO1 Bernard Cimatu,
PO2 Allen Winston Hulleza, Inspector Jonathan Lorilla,
SPO1 Agustilo (SOLA) Hulleza, Jr., Lorraine 'Lulu' Abay,
July 'Kirhat' Flores, Carlos de los Santos, Mamerto Canete,
Elma Canete, Bruno Canete, Elson Canete, and Warlito
Canete were dismissed for insufficiency of evidence.
P/Insp. Dongail filed a Motion for Reconsideration.
On October 1, 2004, Asst. Provincial Prosecutor Elmaco
issued an Order discharging P/Insp. Dongail from the
criminal complaint. An Information for Kidnapping with
Murder was thereafter filed against Ramonito Estanislao and
fifteen John Does before the Regional Trial Court of
Guihulngan, Negros Oriental. The case was assigned to
Branch 64 and docketed as Crim. Case No. 04-094-G.
On December 2, 2004, Orola-Salabas filed an Urgent Motion
for Reinvestigation, praying for the inclusion in the
Information of P/Insp. Dongail, Manolo Escalante, Ronnie
Herrera, SPO2 Freddie Natividad, PCI Jimmy
Fortaleza, PO1 Bernardo Cimatu, PO2 Allen Winston
Hulleza, Insp. Jonathan Lorilla, SPO1 Agustilo Hulleza, Jr.,
Lorraine Abay, July Flores, Carlo de los Santos, Mamerto
Cañete, Elma Canete, Bruno Cañete, Elson Cañete, and
Warlito Cañete. The RTC issued an Order directing Asst.
Provincial Prosecutor Macarieto I. Trayvilla to conduct the
reinvestigation.
On December 13, 2004, the Department of Justice sent a letter
directing the Negros Oriental Provincial Prosecution Office to
forward the records of I.S. Case No. 2004-78 to the DOJ for
automatic review.
On December 28, 2004, the Negros Oriental Provincial
Prosecution Office, without conducting a reinvestigation,
issued a Resolution affirming in toto the August 9, 2004 and
October 1, 2004 Resolutions of Asst. Provincial Prosecutor
Joseph A. Elmaco.
On January 24, 2005, Orola-Salabas filed an Urgent Motion to
Compel Prosecutor Macareto I. Trayvilla to Conduct
Reinvestigation. On January 27, 2005, the RTC issued an
Order granting said Motion. Upon the failure of Prosecutor
Trayvilla to conduct the reinvestigation, Orola-Salabas filed an
Urgent Motion Directing Prosecutor Trayvilla to Explain Why
He Should Not Be Cited For Contempt.
On October 2, 2006, Justice Secretary Raul Gonzalez issued
the aforementioned Resolution modifying the August 9,
2004 resolution of the Negros Oriental Provincial Prosecution
Office (which found probable cause against P/Insp.
Dongail and Estanislao only and dismissed the case against
the other respondents). The dispositive portion of the
Resolution of the Secretary of Justice states:
WHEREFORE, premises considered, the assailed resolution is
hereby MODIFIED. The Provincial Prosecutor of Negros
Oriental is hereby ordered to file an amended Information for
Kidnapping with Murder against the following respondents:
P/INSP. CLARENCE DONGAIL, MANOLO G.
ESCALANTE, RONNIE HERRERA, SPO2 FREDDIE
NATIVIDAD, SPO4 JIMMY FORTALEZA, JULY ("Kirhat"
dela Rosa) FLORES, CARLO "Caloy" DE LOS SANTOS,
PO1 BERNARDO CIMATU, PO2 ALLEN WINSTON
HULLEZA, INSP. JONATHAN [LORILLA], LORRAINE
"LULU" ABAY, MANERTO, ELMA, ELSON ALL
SURNAME(D) CANETE, and JUDE MONTILLA and report
the action taken within ten (10) days from receipt hereof.[8]
PCI Jimmy Fortaleza and SPO2 Freddie Natividad filed a
Petition for Certiorari under Rule 65 with the Court of Appeals
challenging the October 2, 2006 Resolution of the Secretary of
Justice on the following grounds: (1) the Secretary of Justice
erred in entertaining the case despite the fact that complainant
Orola-Salabas did not file a Petition for Review; (2)
the August 9, 2004 resolution of the Negros Oriental
Provincial Prosecution Office had already become final; and
(3) PCI Jimmy Fortaleza and SPO2 Freddie Natividad were
not informed of the alleged Petition for Review. The Petition
was docketed as CA-G.R. CEB-SP No. 02203.
In the meantime, PS/Insp. Clarence Dongail, P/Insp.
Jonathan Laurella, PO3 Allen Winston Hulleza and PO2
Bernardo Cimatu appealed the same October 2, 2006
Resolution of the Secretary of Justice before the Office of the
President. The appeal was docketed as O.P. Case No. 06-J-
380.
On August 16, 2007, the Court of Appeals rendered its
Decision dismissing the Petition for Certiorari for lack of
merit. The appellate court held that the Secretary of Justice has
the power of supervision and control over prosecutors and
therefore can motu proprio take cognizance of a case pending
before or resolved by the Provincial Prosecution Office. The
Court of Appeals also noted that the power of supervision and
control over prosecutors applies not only in the conduct of the
preliminary investigation, but also in the conduct of the
reinvestigation. Pursuant to the Order of the RTC ordering
reinvestigation, it is clear that the reinvestigation stage has not
been terminated, and the power of control of the Secretary of
Justice, allowing it to act on the reinvestigation motu proprio,
continues to apply. Finally, since the case involves the
exercise of the Secretary of Justice's power of control and does
not involve a Petition for Review, the requirement of
furnishing copies of said Petition for Review to the
respondents do not apply in the case at bar.
PCI Jimmy Fortaleza and SPO2 Freddie Natividad filed with
this Court a Petition for Review under Rule 45 challenging the
August 16, 2007 Decision of the Court of Appeals. The
Petition was docketed as G.R. No 179287.
On September 19, 2007, the Office of the President, through
Executive Secretary Eduardo Ermita, rendered its Decision in
O.P. Case No. 06-J-380 setting aside the October 2, 2006
Resolution of the Secretary of Justice. The pertinent portions
of the Decision read:
Even if the DOJ has the power of control and supervision over
its provincial prosecutor and any decision rendered by the
latter may be reviewed by the former, there is yet no new
decision in this case to be reviewed. The second investigation
has yet to be commenced by the provincial prosecutor when
the DOJ ordered the transmittal of the case for its automatic
review. At the outset, DOJ's Resolution of 02 October 2006
was in defiance of the order of the court which had already
acquired jurisdiction over the case. Besides, the DOJ should
have exercised its automatic power of review after the October
1, 2004 Resolution of the Provincial Prosecutor of Negros
Oriental and not after the proper Information was filed with
court and the latter has properly acquired its jurisdiction over
the case.
x x x x
WHEREFORE, premises considered, the 02 October 2006
Resolution of the Department of Justice is hereby set aside.
The Provincial Prosecutor of Negros Oriental is hereby
directed to comply with the January 27, 2005 Order of the
Regional Trial Court of Guihulnean, Negros Oriental and to
immediately proceed with the reinvestigation of the case.[9]
On January 9, 2008, the Office of the President, through
Deputy Executive Secretary Manuel B. Gaite, denied Orola-
Salabas's Motion for Reconsideration.[10]
On March 31, 2008, Orola-Salabas filed with this Court a
Petition for Certiorari assailing the Decision dated September
19, 2007 and Resolution dated January 9, 2007 of the Office
of the President. The Petition was docketed as G.R. No.
182090.
On April 30, 2008, this Court issued a Resolution" in G.R.
No. 179287 denying the Petition for Review for failure of
petitioners to sufficiently show that the Court of Appeals
committed any reversible error in the challenged decision as to
warrant the exercise of this Court's appellate jurisdiction.
On June 2, 2008, this Court resolved to consolidate G.R.
No. 179287 with G.R. No. 182090.[12]
PCI Jimmy Fortaleza and SPO2 Freddie Natividad did not
file a Motion for Reconsideration of this Court's April 30,
2008 Resolution denying the Petition in G.R. No. 179287.
Consequently, said Resolution of this Court has become final
and executory. We shall therefore proceed to rule on the
Petition in G.R. No. 182090.
In her Petition for Certiorari, Orola-Salabas assail the
September 19, 2007 Decision and January 9, 2008 Resolution
of the Office of the President on the following grounds:
I
PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN PROCEEDING WITH THE APPEAL
AFTER THE REGIONAL TRIAL COURT HA[D]
ACQUIRED JURISDICTION OVER THE CASE, AN ACT
WHICH [WA]S CLEARLY AND UNMISTAKABLY
OUTSIDE THEIR POWERS AS IT CONSTITUTE AN
ENCROACHMENT UPON JUDICIAL POWER.
II
PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE
OF DISCRETION IN DISREGARDING THE DECISION OF
THE COURT OF APPEALS UPHOLDING THE POWER
AND AUTHORITY OF THE SECRETARY OF JUSTICE IN
ISSUING HIS RESOLUTION INDICTING PRIVATE
RESPONDENTS OF THE CRIME CHARGED.[13]
Orola-Salabas assert the settled doctrine in the leading case
of Crespo v. Mogulu[14] that:
The rule therefore in this jurisdiction is that once a complaint
or information is filed in Court any disposition of the case as
its dismissal or the conviction or acquittal of the accused rests
in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal
cases even while the case is already in Court he cannot impose
his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination
of the case is within its exclusive jurisdiction and competence.
A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the
arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.
Thus, according to Orola-Salabas, when the Informations were
filed by the Provincial Prosecutor of Negros Oriental in the
RTC of Guihulngan City, Negros Oriental, Branch 64, in
compliance with the October 2, 2006 Resolution of the
Secretary of Justice, the RTC acquired jurisdiction over the
case to the exclusion of all other courts or agencies.
We disagree with petitioner on this point. In People v.
Espinosa,[15] we stressed that the court does not lose control of
the proceedings by reason of a reinvestigation or review
conducted by either the DOJ or the Office of the President. On
the contrary, the court, in the exercise of its discretion, may
grant or deny a motion to dismiss based on such
reinvestigation or review:
Under Section 11(c) of Rule 116 of the Rules of Court, the
arraignment shall be suspended for a period not exceeding 60
days when a reinvestigation or review is being conducted at
either the Department of Justice or the Office of the President.
However, we should stress that the court does not lose control
of the proceedings by reason of such review. Once it had
assumed jurisdiction, it is not handcuffed by any resolution of
the reviewing prosecuting authority. Neither is it deprived of
its jurisdiction by such resolution. The principles established
in Crespo v. Mogul still stands, as follows:
Whether the accused had been arraigned or not and whether it
was due to a reinvestigation by the fiscal or a review by the
Secretary of Justice whereby a motion to dismiss was
submitted to the Court, the Court in the exercise of its
discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the
case.[16]
In her second Assignment of Error, Orola-Salabas claims that
the Office of the President, through Executive Secretary
Ermita and Deputy Executive Secretary Gaite, acted in grave
abuse of discretion in issuing the assailed September 19, 2007
Decision and January 9, 2008 Resolution as it disregarded the
August 16, 2007 Decision of the Court of Appeals which,
incidentally, has been affirmed by this Court in its final and
executory April 30, 2008 Resolution in G.R. No. 179287.
The second assignment of error in effect argues that the
determination by the Court of Appeals on the question of the
validity of the Secretary of Justice Resolution should be
considered the law of the case and should remain established
in all other steps of the prosecution process. The doctrine of
the law of the case is well settled in jurisprudence:
Law of the case has been defined as the opinion delivered on a
former appeal, and means, more specifically, that whatever is
once irrevocably established as the controlling legal rule of
decision between the same parties in the same case continues
to be the law of the case, whether correct on general principles
or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court.
The concept of law of the case is well explained in Mangold v.
Bacon, an American case, thusly:
The general rule, nakedly and boldly put, is that legal
conclusions announced on a first appeal, whether on the
general law or the law as applied to the concrete facts, not
only prescribe the duty and limit the power of the trial court to
strict obedience and conformity thereto, but they become
and remain the law of the case in all other steps below or
above on subsequent appeal. The rule is grounded on
convenience, experience, and reason. Without the rule there
would be no end to criticism, reagitation, reexamination, and
reformulation. In short, there would be endless litigation. It
would be intolerable if parties litigants were allowed to
speculate on changes in the personnel of a court, or on the
chance of our rewriting propositions once gravely ruled on
solemn argument and handed down as the law of a given case.
An itch to reopen questions foreclosed on a first appeal would
result in the foolishness of the inquisitive youth who pulled up
his corn to see how it grew. Courts are allowed, if they so
choose, to act like ordinary sensible persons. The
administration of justice is a practical affair. The rule is a
practical and a good one of frequent and beneficial use.[17]
The doctrine of the law of the case applies even if the prior
resort to the appellate court is in a certiorari proceeding, [18] as
in the case at bar. If this doctrine were to be applied, the
previous opinion by the Court of Appeals-that the October 2,
2006 Resolution of the Secretary of Justice was valid should
govern on subsequent appeal.
However, the doctrine of the law of the case requires that the
appeal be that of the same parties, and that the pronouncement
by the appellate court be with full opportunity to be heard
accorded to said parties:
The doctrine of law of the case simply means, therefore, that
when an appellate court has once declared the law in a case, its
declaration continues to be the law of that case even on a
subsequent appeal, notwithstanding that the rule thus laid
down may have been reversed in other cases. For practical
considerations, indeed, once the appellate court has issued a
pronouncement on a point that was presented to it with full
opportunity to be heard having been accorded to the parties,
the pronouncement should be regarded as the law of the case
and should not be reopened on remand of the case to
determine other issues of the case, like damages. But the law
of the case, as the name implies, concerns only legal questions
or issues thereby adjudicated in the former appeal.[19]
G.R. No. 179287 and G.R. No. 182090 do not, however,
involve the same parties. Of the fifteen persons required by the
October 2, 2006 Resolution of the Secretary of Justice to be
included in the Information for Kidnapping and Murder,
only Jimmy Fortaleza and Freddie Natividad filed a Petition
for Certiorari with the Court of Appeals, were heard thereon,
and whose arguments were considered in the Resolution dated
April 30, 2008 in G.R. No. 179287. Clarence Dongail,
Jonathan Lorilla, Allen Winston Hulleza and Bernardo
Cimatu, on the other hand, appealed to the Office of the
President, and are the parties in G.R. No. 182090, to the
exclusion of Jimmy Fortaleza and Freddie Natividad and the
other respondents. The doctrine of the law of the case does
not, therefore, apply here in G.R No. 182090.
Corollary thereto, however, the Office of the President cannot
order the reinvestigation of the charges with respect to Jimmy
Fortaleza, Freddie Natividad, and the nine other accused who
did not participate in the appeal before the Office of the
President, namely: Jimmy Fortaleza, Freddie Natividad,
Manolo G. Escalante, Ronnie Herrera, July ("Kirhat" Dela
Rosa) Flores, Carlo "Caloy" De Los Santos, Lorraine "Lulu"
Abay, Manerto Canete, Elma Canete, Elson Canete, and Jude
Montilla. Due process prevents the grant of additional awards
to parties who did not appeal [20] or who resorted to other
remedies and such additional award constitutes grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of the Office of the President.
On a more substantive point, we cannot adhere to the position
of the Office of the President that the entire case should be
remanded to the Provincial Prosecutor of Negros Oriental on
the ground that the Secretary of Justice may not exercise its
power to review where there was allegedly no new resolution
rendered by the local prosecutor. As can be gleaned from the
records, the Secretary of Justice conducted an automatic
review of the Provincial Prosecutor's affirmance of former
resolutions issued by previous investigating prosecutors
without conducting an actual reinvestigation of the case.
It is established in jurisprudence that the Secretary of Justice
has the statutory power of control and supervision over
prosecutors. In the recent case of Department of Justice v.
Alaon,[21] we reiterated that:
There is no quarrel about the- Secretary of Justice's power of
review over the actions of his subordinates, specifically public
prosecutors. This power of review is encompassed in the
Secretary of Justice's authority of supervision and control over
the bureaus, offices, and agencies under him, subject only to
specified guidelines.
Chapter 7, section 38, paragraph 1 of Executive Order No. 292
or The Administrative Code of 1987, defines the
administrative relationship that is supervision and control:
SECTION 38. Definition of Administrative Relationships. —
Unless otherwise expressly stated in the Code or in other laws
defining the special relationships of particular agencies,
administrative relationships shall be categorized and defined
as follows:
(1) Supervision and Control. — Supervision and control shall
include authority to act directly whenever a specific function
is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of
acts; review, approve, reverse or modify acts and decisions
of subordinate officials or units; determine priorities in the
execution of plans and programs; and prescribe standards,
guidelines, plans and programs. Unless a different meaning is
explicitly provided in the specific law governing the
relationship of particular agencies, the word "control" shall
encompass supervision and control as defined in this
paragraph.
In Noblejas v. Judge Salas, we defined control as the power
(of the department head) to alter, modify or nullify or set aside
what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of
the latter. The power of control implies the right of the
President (and, naturally, of his alter ego) to interfere in the
exercise of such discretion as may be vested by law in the
officers of the national government, as well as to act in lieu of
such officers. (Citations omitted.)
Moreover, Section 4, Rule 112 of the Rules of Court
recognizes the Secretary of Justice's power to review the
actions of the investigating prosecutor, even motu proprio, to
wit:
SECTION 4. Resolution of Investigating Prosecutor and its
Review. — If the investigating prosecutor finds cause to hold
the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof; that
the accused was informed of the complaint and of the evidence
submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases
of offenses cognizable by the Sandiganbayan in the exercise
of its original jurisdiction. They shall act on the resolution
within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal
of the complaint but his recommendation is disapproved by
the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information
against the respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor,
he shall direct the prosecutor concerned either to file the
corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The
same rule shall apply in preliminary investigations conducted
by the officers of the Office of the Ombudsman. (Emphasis
supplied.)
Verily, the Secretary of Justice was empowered to review the
actions of the Provincial Fiscal during the preliminary
investigation or the reinvestigation. We note by analogy,
however, that in Department of Justice v. Alaon, the Court
declared that respondents should be given due notice of the
review proceedings before the Secretary of Justice and be
afforded adequate opportunity to be heard therein.
In the case at bar, we find that there is nothing on record to
show that respondents were given notice and an opportunity to
be heard before the Secretary of Justice. For this reason, we
remand the case to the Secretary of Justice with respect to
respondents Dongail, Lorilla, Hulleza, and Cimatu for further
proceedings, with the caveat that any resolution of the
Secretary of Justice on the matter shall be subject to the
approval of the trial court.
WHEREFORE, the Decision of the Office of the President
dated September 19, 2007 and its Resolution dated January 9,
2008 are hereby SET ASIDE. The case is REMANDED to
the Secretary of Justice for further proceedings with respect to
respondents Clarence Dongail, Jonathan Lorilla, Allen
Winston Hulleza and Bernardo Cimatu.
No pronouncement as to costs.
SO ORDERED.
[ A.M. No. RTJ-14-2399 [Formerly A.M. OCA IPI No. 13-
4013-RTJ], November 19, 2014 ]
GASPAR BANDOY, COMPLAINANT, VS. JUDGE
JOSE S. JACINTO, JR., PRESIDING JUDGE, BRANCH
45, AND ACTING PRESIDING JUDGE, BRANCH 46,
BOTH AT REGIONAL TRIAL COURT, SAN JOSE,
OCCIDENTAL MINDORO, RESPONDENT.
DECISION
MENDOZA, J.:
For review before the Court is this administrative case against
respondent Judge Jose S. Jacinto, Jr. (Judge Jacinto, Jr.) of the
Regional Trial Court (RTC), Branches 45[1] and 46,[2] San Jose,
Occidental Mindoro, filed by Gaspar Bandoy (Bandoy) for
Grave Abuse of Authority in relation to Criminal Case No. 2-
1928,[3] entitled “People of the Philippines v. Gaspar Bandoy,
Peter Alfaro and Randolph Ignacio” and Criminal Case No.
Z-1910, entitled “People of the Philippines vs. Romulo De
Jesus, Jr.”
Complainant Bandoy alleged, in his verified complaint, [4] that
he was one of the accused in Criminal Case No. 2-1928, for
Serious Illegal Detention filed by Romulo De Jesus, Jr. (De
Jesus, Jr.), which was raffled to Branch 44 of the RTC,
Mamburao, Occidental Mindoro (RTC-Br. 44), with Judge
Jacinto, Jr. as the Assisting Presiding Judge.  Bandoy claimed
that the case was initiated by De Jesus, Jr. to get back at him
for being instrumental in the filing of an earlier criminal
complaint against him for Violation of Article XXII, Section
261, paragraph 7, number 14 of the Omnibus Election
Code (Ballot Switching).  The said case was likewise raffled to
RTC-Br. 44.
Bandoy also averred that he was an election watcher of former
Mayor Joel Panaligan during the 2007 local elections, while
De Jesus, Jr., a teacher of their municipality’s public
elementary school, was one of the chairpersons of the Board
of Election Inspectors; that they were both assigned in
Precinct 3-A of Mamburao, Occidental Mindoro; that De
Jesus, Jr. was rumored to be closely associated with the rival
mayoralty candidate, Voltaire Anthony C. Villarosa (Voltaire),
son of House representative Amelita C. Villarosa (Cong.
Villarosa) and Mayor Jose Tapales Villarosa (Mayor
Villarosa) of San Jose, Occidental Mindoro; that in the said
local elections, De Jesus, Jr. was caught in the act of ballot
switching, which was captured on video by a member of the
media, a certain Randy Bool; that by virtue of a search warrant
from the Commission of Elections (COMELEC), De Jesus, Jr.
was caught in possession of some ballots inside his backpack;
and that as a result of this incident, De Jesus, Jr. was
criminally charged with the offense of ballot switching. 
Accordingly, on August 17, 2007, a warrant of arrest was
issued against De Jesus, Jr.[5]
According to Bandoy, on August 20, 2007, De Jesus, Jr.
personally appeared before Provincial Prosecutor Levitico
Salcedo to file a criminal case for Serious Illegal Detention
against him, Peter Alfaro, Randolph Ignacio, and then Election
Supervisor, Atty. Judy Lorenzo (Atty. Lorenzo).  Apparently,
De Jesus, Jr. did this while there was a standing warrant of
arrest against him.  Worse, De Jesus, Jr. remained at-large
until he was able to post bail on March 7, 2008 before then
Las Pinas RTC Judge Raul B. Villanueva. [6]  Because
complainant Bandoy was charged with Serious Illegal
Detention, the provincial prosecutor recommended “no bail”
leaving them incarcerated for more than two years. [7]
Bandoy further claims that Judge Jacinto, Jr. committed grave
abuse of his authority by displaying manifest bias and
partiality in favor of De Jesus, Jr. when he granted several
postponements of De Jesus, Jr.’s arraignment, originally
scheduled on April 23, 2008, [8] but was reset for seven times
until De Jesus, Jr. entered a plea of not guilty supposedly
inside Judge Jacinto, Jr.’s chambers on July 6, 2011.[9]
Bandoy emphasized that many of the said resettings were
mostly due to De Jesus, Jr.’s non-appearance for failure to
locate him at his given address.  Despite these supposed
obvious court defiance, Judge Jacinto, Jr. remained lenient and
seemingly tolerated his continuous non-appearance in the
court’s subsequent scheduled hearings.  Another example of
Judge Jacinto, Jr.’s supposed unreasonable bias towards
Bandoy was his lack of interest to dispose of the case of
serious illegal detention despite De Jesus, Jr.’s obvious
dilatory tactics and unjustified absences when his appearance
was necessary.
Bandoy, along with his co-accused, moved for reconsideration
and filed a petition for review before the Department of
Justice (DOJ) to have the serious illegal detention case against
them dismissed.  Meanwhile, co-accused Atty. Lorenzo filed a
separate petition with the Court of Appeals (CA) and won the
case. The Court later affirmed the dismissal of the case against
her.  At first, the DOJ denied their petition.  Upon
reconsideration, however, the DOJ, under the helm of Justice
Secretary Leila De Lima, directed the Office of the Provincial
Prosecutor, Occidental Mindoro, to cause the withdrawal of
the case against Bandoy and his co-accused. [10]  Accordingly,
the Office of the Provincial Prosecutor filed its Motion to
Withdraw Information.
Judge Jacinto, Jr., in an order,[11] dated July 5, 2011, denied the
motion to withdraw information.  In the end, Bandoy was only
able to regain temporary freedom when Judge Jacinto, Jr.
finally resolved[12] to allow him to post a bail bond of
P100,000.00 each or a total of P300,000.00.[13]  Bandoy added
that Voltaire was a principal sponsor in the wedding of Judge
Jacinto, Jr.’s child.
Thereafter, Judge Jacinto, Jr. was assigned to another sala,
while Judge Wilfredo De Joya Mayor (Judge Mayor) became
the assisting presiding judge of Branch 44.  It was during this
time that the case for serious illegal detention was temporarily
dismissed, but upon reconsideration, Judge Mayor decided to
reinstate and continue the case against Bandoy.  Meanwhile,
the case of ballot switching against De Jesus, Jr. was
dismissed on October 25, 2012,[14] while their bail for the
serious illegal detention case was cancelled. [15]
According to complainant Bandoy, the compelling force that
made him initiate this present administrative case was because
Judge Jacinto, Jr. would take over Judge Mayor’s assignments
on account of the latter’s compulsory retirement from service
on December 1, 2012, which would include their pending
serious illegal detention case.  He claimed that Judge Jacinto,
Jr. ordered the police and the CIDG to re-arrest him and his
co-accused even though there was no warrant of arrest against
them.[16]  He begged the Court not to let Judge Jacinto, Jr.
handle their case of serious illegal detention for fear that they
would have to endure another bout of extreme bias and
partiality from him.
In his Comment,[17] Judge Jacinto, Jr. denied being an ally of
the Villarosa clan.[18]  He also denied having a hand in the
order to arrest Bandoy and his co-accused as the Chief of PNP
and the CIDG Chief, both of Mamburao, Occidental Mindoro,
merely consulted him on how to go about the order of
cancellation of bail that Judge Mayor issued.  He explained
“wala po akong alam sa Kautusan kaya binasa po sa akin ang
nilalaman nito sa cellphone at pagkatapos ay nagwika po
akong parang may kulang sa Kautusan at kapag nakansela
ang piyansa ay babalik sila sa selda dahil wala na po silang
piyansa (as a consequence thereof).”[19]  Judge Jacinto, Jr.
even refused to issue a warrant of arrest when he was asked
because he was not handling the case anymore. [20]
Bandoy, in his Reply,[21] brought to the attention of the Court
that Judge Jacinto, Jr., in order to thwart the enemies of his
supposed master, Mayor Villarosa, issued warrants of arrest
against ten individuals.[22]  He also divulged that the audit team
from the Court was personally assisted by Judge Jacinto, Jr.
and given accommodations in “Aroma Center,” one of the
properties of Mayor Villarosa. [23]  Bandoy was thankful that
Judge Jacinto, Jr. did not deny the fact that the police officials
wanted to arrest them even without a warrant of arrest.
[24]
 Bandoy showed a timeline of events supposedly depicting
how De Jesus, Jr., through the tolerance and partiality of Judge
Jacinto, Jr., evaded arraignment on numerous occasions
effectively delaying the progress of the case for ballot
switching and even actually conducting the arraignment in his
chambers.[25]  He further reiterated his plea not to let Judge
Jacinto, Jr. preside over the affairs of Branch 44.
In his Rejoinder,[26] Judge Jacinto, Jr. stated that he was again
assigned as Assisting Presiding Judge of Branch 44.[27]  He
clarified that he indeed issued warrants of arrest against ten
individuals in connection with a serious illegal detention case
against them, but only after a finding of probable cause by the
public prosecutor handling it.  Judge Jacinto, Jr. reiterated that
he merely affirmed the finding of probable cause, which
justified the issuance of the warrants of arrest as the charge
was a non-bailable offense. [28]  He likewise denied seeking any
favor from Mayor Villarosa to accommodate the audit team in
their property, the Aroma Family Hotel.  He explained that the
audit team paid him a “courtesy call” where he assured the
team of his cooperation.[29]  He again restated that the police
officials merely coordinated with him as was customary
because he was the Executive Judge of the municipality.[30] 
Judge Jacinto, Jr. believes that Bandoy’s accusations against
him were designed to oust him as Presiding Judge of Branches
45 and 46 of San Jose and even as Assisting Presiding Judge
of Branch 44, Mamburao, both in the province of Occidental
Mindoro.[31]
In its Report,[32] dated June 03, 2014, the Office of the Court
Administrator (OCA) did not give credence to Bandoy’s
allegation that Judge Jacinto, Jr. issued an order for his arrest
without a warrant and to the insinuation that the Court’s audit
team was conveniently housed in Aroma Family Hotel of the
Villarosas for failure to present proof.[33]  The OCA observed,
however, that Judge Jacinto, Jr. never refuted the allegations
of leniency over the several resettings of the arraignment of
De Jesus, Jr. and that the arraignment was held in his
chambers.  As such, the OCA equated his silence to
admission.[34]  Thus, the OCA recommended that:
1. The administrative complaint against
Presiding Judge Jose S. Jacinto, Jr., Branch
45, Regional Trial Court, San Jose,
Occidental Mindoro, be RE-
DOCKETED as regular administrative
matter; and
2. Respondent Judge Jose Jacinto, Jr. be
found GUILTY of Bias and Partiality and
Gross Ignorance of the Law and Procedure
and, accordingly, be FINED in the amount
of Forty Thousand Pesos (P40,000.00) with
a STERN WARNING that a repetition of
the same or similar act shall be dealt with
more severely. [35]
The Court’s Ruling

The Court agrees with the recommendation of the OCA.
Rule 3.01, Canon 3 of the Code of Judicial Conduct mandates
that a judge shall be faithful to the law and maintain
professional competence. Indeed, competence and diligence
are prerequisites to the due performance of judicial office. [36]
Everyone, especially a judge, is presumed to know the law.  cast doubt upon their integrity and ultimately the judiciary in
One who accepts the exalted position of a judge owes the
public and the Court the duty to maintain professional
competence at all times.[37]
In this case, Judge Jacinto, Jr. was directly confronted with an
allegation that he arraigned De Jesus, Jr. inside his chambers.  repeatedly teaches that litigants are entitled to nothing less
He was given the opportunity to answer, but he chose not to
delve into it.  Ultimately, Judge Jacinto, Jr. did not squarely
face the issues being imputed against him, which was quite
irregular since it was his name and his capacity as a member
of the bench, that was being challenged.  As aptly observed by
the OCA, “the natural instinct of man impels him to resist an
unfounded claim or imputation and defend himself.  It is
against human nature to just remain reticent and say nothing in
the face of false accusations.” [38]  His silence introduces doubt
in the minds of the public, which is not acceptable.
Given the exacting standards required of magistrates in the
application of the law and procedure, the Court finds Judge
Jacinto, Jr. administratively guilty of gross ignorance of Rule
116 of the Revised Rules of Court, specifically Section 1(a)
thereof requiring arraignment of an accused to be made in
open court, to wit:
Section 1.  Arraignment and plea, how made. – (a) The
accused must be arraigned before the court where the
complaint or information was filed or assigned for trial.  The
arraignment shall be made in open court by the judge or clerk
by furnishing the accused with a copy of the complaint or
information, reading the same in the language or dialect
known to him, and asking him whether he pleads guilty or not
guilty.  The prosecution may call at the trial witnesses other
then those named in the complaint or information.
(Emphasis supplied)
The procedural steps laid down in Section 1(a) of Rule 116 are
not empty rituals that a judge can take nonchalantly.  Each
step constitutes an integral part of that crucial stage in criminal
litigation “where the issues are joined x x x and without which
the proceedings cannot advance further.” [39]
Thus, anything less than is required by Section 1(a) of Rule
116 constitutes gross ignorance of the law.[40]  There is gross
ignorance of the law when the error committed by the judge
was “gross or patent, deliberate or malicious.”[41] It may also
be committed when a judge ignores, contradicts or fails to
apply settled law and jurisprudence because of bad faith,
fraud, dishonesty or corruption. [42]  Gross ignorance of the law
or incompetence cannot be excused by a claim of good faith.
[43]
The Court has impressed upon judges that they owe it to the
public and the legal profession to know the very law that they
are supposed to apply in a given controversy. [44]  They are
called upon to exhibit more than just a cursory acquaintance
with statutes and procedural rules, to be conversant with the
basic law, and to maintain the desired professional
competence.[45]  When a judge displays an utter lack of
familiarity with the rules, he erodes the confidence of the
public in the courts.  A judge owes the public and the Court
the duty to be proficient in the law and is expected to keep
abreast of laws and prevailing jurisprudence. Ignorance of the
law by a judge can easily be the mainspring of injustice. [46]
Canon 2,[47] Rule 2.01[48] and Canon 3[49] of the Code of
Judicial Conduct likewise emphasize that judges, as officers of
the court, have the duty to see to it that justice is dispensed
with evenly and fairly.  Not only must they be honest and
impartial, but they must also appear to be honest and impartial
in the dispensation of justice.  Judges should make sure that
their acts are circumspect and do not arouse suspicion in the
minds of the public.  When they fail to do so, such acts may
general.[50]  As held in Joselito Rallos, et al., vs. Judge Ireneo
Lee Gako Jr., Branch 5 RTC, Cebu City:[51]
Well-known is the judicial norm that “judges should not only
be impartial but should also appear impartial.” Jurisprudence
than the cold neutrality of an impartial judge. The other
elements of due process, like notice and hearing, would
become meaningless if the ultimate decision is rendered by a
partial or biased judge. Judges must not only render just,
correct and impartial decisions, but must do so in a manner
free of any suspicion as to their fairness, impartiality and
integrity.
This reminder applies all the more sternly to municipal,
metropolitan and regional trial court judges like herein
respondent, because they are judicial front-liners who have
direct contact with the litigating parties. They are the
intermediaries between conflicting interests and the
embodiments of the people’s sense of justice. Thus, their
official conduct should be beyond reproach.
Here, the Court cannot fathom why the arraignment of De
Jesus, Jr. was postponed from 2007 to 2011 without
appropriate action coming from the court.  Judge Jacinto, Jr.
should have availed of known legal remedies to compel De
Jesus, Jr. to personally appear for his arraignment, but he did
not.  The appearance of leniency seemingly exhibited in favor
of De Jesus, Jr. gives an impression of bias and partiality that
should be addressed and corrected.
Consequently, under Section 8(9), Rule 140 of the Rules of
Court, as amended by A.M. No. 01-8-10-SC, gross ignorance
of the law or procedure is classified as a serious charge. 
Section 11(A) of the same Rule provides that the penalty to be
imposed if a respondent Judge is found guilty of a serious
charge is either a fine of more than P20,000.00 but not more
than P40,000.00, suspension from office without salary and
other benefits for more than three but not exceeding six
months, or dismissal from the service, forfeiture of all or part
of the benefits as the Court may determine, and
disqualification from reinstatement or appointment to any
public office, including government-owned or controlled
corporations.
The Court is aware of the other pending administrative cases
against Judge Jacinto, Jr., but they cannot be fully considered
in the imposition of the penalty in this case as they are still
under review and evaluation.  Thus, a fine of P40,000.00[52] is
deemed appropriate under the  circumstances.
WHEREFORE, the Court finds respondent Judge Jose S.
Jacinto, Jr. GUILTY of Gross Ignorance of the Law and
Procedure and of Bias and Partiality.  Accordingly, he
is FINED in the amount of Forty Thousand (P40,000.00)
Pesos with a STERN WARNING that a repetition of the
same or similar act shall be dealt with more severely.
SO ORDERED.
[ A.C. No. 8911, July 08, 2019 ]

IN RE: ATTY. ROMULO P. ATENCIA: REFERRAL BY

THE COURT OF APPEALS OF A LAWYER'S
UNETHICAL CONDUCT AS INDICATED IN ITS
DECISION DATED JANUARY 31, 2011 IN CA-G.R. CR-
HC NO. 03322 (PEOPLE OF THE PHILIPPINES V.
AURORA TATAC, ET AL.).

RESOLUTION

PERLAS-BERNABE, J.:

For the Court's resolution is an administrative

complaint[1] filed against respondent former Judge Romulo P.
Atencia (respondent) for violation of Rule 6.03 of the Code of
Professional Responsibility (CPR).

The Facts

On December 16, 2003, respondent, then Presiding Judge of

the Regional Trial Court of Virac, Catanduanes, Branch 43
(RTC), presided over the arraignment of accused Aurora Tatac
(Tatac), Maria Gaela (Gaela), and Maritess Cunanan
(Cunanan; collectively, accused) in Criminal Case Nos. 3265,
3266, and 3267 for transporting dangerous drugs, and
thereafter, ordered a joint trial of the cases upon his
determination that the cases involved a commonality of
evidence.[2]

On February 11, 2004, respondent tendered his resignation as

Presiding Judge of the RTC due to health reasons, which took
effect on April 30, 2004.[3]

On April 21, 2006, or almost two (2) years after he resigned,

respondent entered his appearance in the same criminal cases
as substitute counsel for accused Tatac, Gaela, and Cunanan.

After trial, the RTC convicted the accused, prompting Tatac

and Gaela to appeal to the CA with respondent as counsel. [4]

On appeal, the CA acquitted the accused [5] but noted that

respondent committed an ethical infraction because of his
acceptance of the cause of the accused, who had earlier
appeared before him when he was still a judge, viz.:

First, a word on the perceived unethical conduct of former

Judge Romulo Atencia who, after presiding over the initial
stages of the case, including the arraignment of the accused,
was later engaged as counsel for the same accused.

x x x x

x x x [H]is acceptance of the cause of the accused-

appellants, who had earlier appeared before him when he
was still a judge, seriously taints his stature as a lawyer. It
cannot be helped that his acceptance of the same case which
he presided over may not have been made with the most
pristine of intentions. While a lawyer should not reject, except
for valid reasons, the cause of the defenseless or the
oppressed, it is also true that he should avoid conflict of
interest. Moreover, former Judge Romulo Atencia's tenure as
judge of the same court may have been a significant factor for
the accused-appellants' decision to engage his services. A
lawyer should never allow himself to be perceived as able to
influence any public official, tribunal or legislative body.
xxxx
In this regard, the CA observed that the matter should be
referred6 to the Integrated Bar of the Philippines (IBP) for
further investigation pursuant to Section 1 of Rule 139-B of
the Rules of Court (Rules). [7]
Subsequently, the Commission on Bar Discipline of the IBP
referred the matter to the Office of the Bar Confidant (OBC)
for appropriate action.[8]
In a Memorandum[9] dated March 11, 2011, the OBC
recommended: (1) the docketing of the complaint; and (2) that
respondent be required to comment. [10] Pursuant to the OBC's
recommendation, the Court issued a Resolution [11] dated April
11, 2011, approving the formal docketing of the complaint
against respondent and requiring him to comment on his
alleged unethical conduct.[12]
In his Comment,[13] respondent refuted the charges against
him, claiming that there is no prohibition against a former
judge to accept as his client somebody who was an accused in
his sala when he was still judge.[14] Respondent also argued
that his participation was limited to the arraignment of the
accused and to the issuance of the order directing the joint trial
of the cases due to commonality of evidence. [15]
In a Resolution[16] dated November 28, 2011, the Court
referred the case to the IBP for investigation, report, and
recommendation.[17]
The IBP's Report and Recommendation
In a Report and Recommendation[18] dated June 10, 2013, the
IBP Investigating Commissioner found respondent
administratively liable for violating Rule 6.03 of the CPR, and
accordingly, recommended that he be meted the penalty of
suspension from the practice of law for one (1) year.
The Investigating Commissioner noted that as a former judge
of the court where the cases were then pending, respondent is
considered to have "intervened" when he accepted to be the
counsel for the accused. Indeed, as a judge, respondent had the
power to influence the proceedings, regardless of his limited
participation in the case as aforementioned. Thus, he is
prohibited from accepting any engagement from the accused
involving the same matter.[19]
In a Resolution[20] dated August 9, 2014, the IBP Board of
Governors adopted the aforesaid report and recommendation.
[21]
However, during the pendency of this case, or on July 6, 2017,
respondent unfortunately passed away.[22]
The Issue Before the Court
The issue for the Court's resolution is whether or not
respondent should be held administratively liable for violation
of Rule 6.03 of the CPR.
The Court's Ruling
Rule 6.03 of the CPR states:
Rule 6.03 – A lawyer shall not, after leaving government
service, accept engagement or employment in connection with
any matter in which he had intervened while in said service.
In Olazo v. Tinga,[23] the Court held that Rule 6.03
contemplates of a situation where a lawyer, formerly in the
government service, accepted engagement or employment in a
matter which, by virtue of his public office, had previously
exercised power to influence the outcome of the proceedings.
[24]
The rationale for the prohibition under Rule 6.03 is this:
private lawyers who, during their tenure in government
service, had possessed the power to influence the outcome of
the proceedings, are bound to enjoy an undue advantage over
other private lawyers because of their substantial access to
confidential information on the matter (including the
submissions of a counter-party), as well as to the government's
resources dedicated to process/resolve the same (including
contacts in the institution where the matter is pending). Thus,
to obviate the temptation of these government lawyers to
exploit the information, contacts, and influence garnered while
in the service when they leave for private practice, the
prohibition under Rule 6.03 was formulated.
In Presidential Commission on Good Government v.
Sandiganbayan (PCGG),[25] the Court took pains to trace the
roots of Rule 6.03 and discussed the so-called "revolving
door" concern, which was the original impetus behind the
prohibition under Rule 6.03:
In 1917, the Philippine Bar found that the oath and duties of a
lawyer were insufficient to attain the full measure of public
respect to which the legal profession was entitled. In that year,
the Philippine Bar Association adopted as its own, Canons 1 to
32 of the ABA Canons of Professional Ethics.
As early as 1924, some ABA members have questioned the
form and function of the canons. Among their concerns was
the "revolving door" or "the process by which lawyers and
others temporarily enter government service from private life
and then leave it for large fees in private practice, where
they can exploit information, contacts, and influence
garnered in government service." These concerns were
classified as "adverse-interest conflicts" and "congruent-
interest conflicts." "Adverse-interest conflicts" exist where
the matter in which the former government lawyer represents a
client in private practice is substantially related to a matter that
the lawyer dealt with while employed by the government and
the interests of the current and former are adverse. On the
other hand, "congruent-interest representation conflicts" are
unique to government lawyers and apply primarily to former
government lawyers, x x x To deal with problems peculiar to
former government lawyers, Canon 36 was minted which
disqualified them both for "adverse-interest conflicts" and
"congruent-interest representation conflicts." The rationale
for disqualification is rooted in a concern that the
government lawyer's largely discretionary actions would
be influenced by the temptation to take action on behalf of
the government client that later could be to the advantage
of parties who might later become private practice clients.
Canon 36 provides, viz.:
26. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any
matter upon the merits of which he has previously acted in a
judicial capacity.
A lawyer, having once held public office or having been in
the public employ should not, after his retirement, accept
employment in connection with any matter he has
investigated or passed upon while in such office or employ.
[26]
 (Emphases and underscoring supplied)
According to the PCGG case, Rule 6.03 of CPR retained the
general structure of paragraph 2, Canon 36 of the Canons of
Professional Ethics "but replaced the expansive phrase
"investigated and passed upon " with the word
"intervened."[27] Notably, the word "intervened" was held to
only include "an act of a person who has the power to
influence the subject proceedings." The intervention cannot be
insubstantial and insignificant. It does not "includ[e]
participation in a proceeding even if the intervention is
irrelevant or has no effect or little influence." [28]
In this case, it is undisputed that respondent not only presided
over the arraignment proceedings involving the accused but
also ordered the joint trial of Criminal Case Nos. 3265, 3266,
and 3267 upon his determination that the cases involved a
commonality of evidence. Accordingly, he performed acts that
influenced the outcome of the proceedings. To be sure, the
arraignment[29] is an essential stage of criminal prosecution
where discretionary matters (such as plea bargaining or a
motion to suspend arraignment [30]) may be raised, and without
which the criminal cases cannot proceed. Furthermore, by
conducting the arraignment of the accused, respondent had
necessarily examined the records forwarded by the prosecutor
and consequently, determined the existence of probable cause;
otherwise, the case would have already been dismissed. [31]
Meanwhile, in ordering the joint trial, respondent had to
examine the records of these cases in order to determine the
commonality of evidence. Case law states that joint trial is
permissible where the actions arise from the same act, event or
transaction, involve the same or like issues, and depend
largely or substantially on the same evidence, provided that
the court has jurisdiction over the cases to be consolidated and
that a joint trial will not give one party an undue advantage or
prejudice the substantial rights of any of the parties. [32] Given
respondent's directive for joint trial, the presentation of
evidence must now cover ail the charges against and the
defenses for all the accused, unlike before when they were to
be taken individually.
Thus, given the significance of these acts to the outcome of the
proceedings, respondent's acts fall within the ambit of the
prohibition under Rule 6.03. Hence, he should not have
accepted the engagement to be the private counsel of the
accused in the same criminal cases in which he had previously
intervened while in the government service.
However, due to respondent's supervening death, the Court
finds it apt to dismiss the instant administrative complaint. The
general rule is that "the Court is not ousted of its jurisdiction
over an administrative matter by the mere fact that the
respondent public official ceases to hold office during the
pendency of the respondent's case;[33] jurisdiction once
acquired, continues to exist until the final resolution of the
case." In Loyao, Jr. v. Caube,[34] it was explained that:
This jurisdiction that was ours at the time of the filing of the
administrative complaint was not lost by the mere fact that the
respondent public official had ceased in office during the
pendency of his case. The Court retains its jurisdiction either
to pronounce the respondent public official innocent of the
charges or declare him guilty thereof. A contrary rule would
be fraught with injustice and pregnant with dreadful and
dangerous implications... If innocent, respondent public
official merits vindication of his name and integrity as he
leaves the government which he has served well and
faithfully; if guilty, he deserves to receive the corresponding
censure and a penalty proper and imposable under the
situation.[35]
The above rule, however, is not without exceptions.
In Limliman v. Judge Ulat-Marrero,[36] the Court ruled that the
death of the respondent necessitates the dismissal of the
administrative case upon a consideration of any of the
following factors: first, the observance of respondent's right to
due process; second, the presence of exceptional
circumstances in the case on the grounds of equitable and
humanitarian reasons', and third, it may also depend on the
kind of penalty imposed.[37]
Here, the Court would have merely reprimanded respondent
for his ethical violation. However, since this penalty cannot
anymore be implemented because respondent had already
passed away, and further taking into account equitable and
humanitarian considerations, the Court finds it proper to
dismiss the administrative complaint against him.
WHEREFORE,  the administrative complaint against
respondent former Judge Romulo P. Atencia is
hereby DISMISSED.
SO ORDERED.
Carpio, (Chairperson), Caguioa, J. Reyes, Jr., and Lazaro-
Javier, JJ., concur.
____
G.R. No. 210731, February 13, 2019

SIMEON LAPI Y MAHIPUS, PETITIONER, v. PEOPLE

OF THE PHILIPPINES, RESPONDENT.

DECISION

LEONEN, J.:

The right to question the validity of an arrest may be waived if

the accused, assisted by counsel, fails to object to its validity
before arraignment.

This is a Petition for Review on Certiorari 1 assailing the April

29, 2013 Decision2 and December 10, 2013 Resolution3 of the
Court of Appeals in CA-G.R. CEB-CR No. 01564, which
upheld the Regional Trial Court September 15, 2010
Decision.4 The trial court found Simeon M. Lapi (Lapi) guilty
beyond reasonable doubt of having violated Article II, Section
15 of Republic Act No. 91655 and sentenced him to six (6)
months of rehabilitation at a government-approved facility.

In an Information dated April 20, 2006, Lapi, Allen Sacare

(Sacare), and Kenneth Lim (Lim) were charged with violation
of Article II, Section 15 of Republic Act No. 9165. The
Information read:

That on or about the 17th day of April, 2006, in the City of

Bacolod, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused conspiring, confederating
and acting in concert, not being authorized by law to smoke,
consume, administer to oneself, ingest or use a dangerous
drug, did, then and there willfully, unlawfully and feloniously
engage in ingesting and introducing to their bodies a
dangerous drug known as methylamphetamine hydrochloride
or shabu and after confirmatory test on the qualitative
examination of the urine sample on the three accused, they
were found positive to the test for Methylamphetamine, a
dangerous drug, per Chemistry Report Nos. DT-042-2006,
DT-043-2006 and DT-045-2006, respectively, in violation of
the aforementioned law.

Act contrary to law.6

On arraignment, Lapi, Sacare, and Lim pleaded not guilty to

the crime charged. At pre-trial, Sacare and Lim changed their
pleas to guilty, and were sentenced to rehabilitation for six (6)
months at a government-recognized center. Only Lapi was
subjected to trial on the merits. 7

According to the prosecution, at around 1:50 p.m. on April 17,

2006, operatives of the Bacolod City Anti-Illegal Drug Special
Operation Task Group conducted a stake-out operation in
Purok Sigay, Barangay 2, Bacolod City. During the operation,
Police Officer 2 Ronald Villeran (PO2 Villeran) heard noises
from one (1) of the houses. He "peeped through its
window"8 and saw Lapi, Sacare, and Lim "having a pot
session."9
PO2 Villeran tried to enter the house through the main door,
but the door was locked. He then tried to enter through the
kitchen door. Upon entry, he met someone trying to flee, but
PO2 Villeran restrained the person.10
Then, PO2 Villeran "peeked into the adjacent room" 11 and saw
that the pot session was ongoing. He entered the room and
introduced himself as a police officer. Lapi, Sacare, and Lim
tried to escape, but were caught b PO2 Villeran's team
members, who were waiting by the main door.12
Having been arrested and their paraphernalia seized, the men
were then brought to the City Anti-Illegal Drug Special
Operation Task Group Office, where a police blotter was filed.
They were later brought to the Philippine National Police
Crime Laboratory to undergo drug tests. 13
The initial laboratory report found that Lapi, Sacare, and Lim
tested positive for methylamphetamine hydrochloride (shabu),
while their companions, Noel Canlas and Carmelo
Limbaco,14 tested negative. Another test conducted yielded the
same results.15
In his defense, Lapi alleged that on April 17, 2006, he was in
Purok Sigay, Barangay 2, Bacolod City to deliver a mahjong
set to a certain Antonio Kadunggo. On his way home, two (2)
persons approached him and searched his pocket. They took
his money, handcuffed him, and boarded him on a tricycle
with four (4) other persons whom he did not know. 16
Lapi stated that upon reaching the Taculing Police
Headquarters, he and the others were subjected to a drug test.
They were then escorted to their detention cell without being
informed of the test results. Rolando Cordova, a barbecue
vendor in the area, corroborated Lapi's testimony. 17
In its September 15, 2010 Decision,18 the Regional Trial Court
found Lapi guilty. It ruled that the warrantless arrest against
him was legal since he was caught in flagrante delicto.19
The dispositive portion of the Regional Trial Court Decision
read:
WHEREFORE, finding accused Simeon Lapi y Mahipus
guilty beyond reasonable doubt of Violation of Section 15,
Article II of R.A. 9165 (Use of Dangerous Drugs) as charged,
judgment is hereby rendered imposing upon him the penalty of
a minimum of Six (6) Months rehabilitation in any
government recognized government center, this being
apparently his first offense, to start within fifteen (15) here-
from.
The doctor-in-charge of said rehabilitation facility is also
required to render a written report of the progress of the
program and the termination of the rehabilitation of the
accused.
SO ORDERED.20
21
Lapi appealed to the Court of Appeals.
In its April 29, 2013 Decision, 22 the Court of Appeals denied
the Appeal and affirmed the Regional Trial Court Decision.
The Court of Appeals ruled that PO2 Villeran, upon seeing the
pot session, "had reasonable ground to believe that [Lapi was]
under the influence of dangerous drugs. Thus, he was justified
and even obligated by law to subject him to drug screening
laboratory examination."23
Lapi filed a Motion for Reconsideration, 24 but it was denied by
the Court of Appeals in its December 10, 2013 Resolution. 25
Hence, Lapi filed this Petition.26
Petitioner argues that while he raises factual questions, his
case falls under the exceptions under the Rules of Court. He
claims that the Court of Appeals' factual findings "are totally
bereft of support in the records and so glaringly erroneous as
to constitute a serious abuse of discretion." 27
Petitioner asserts that while he failed to question the validity
of his arrest before entering his plea, his warrantless arrest was
illegal from the start. Hence, any evidence obtained cannot be
used against him. He argues that PO2 Villeran committed "a
malevolent intrusion of privacy"28 when he peeped through the
window; had he not done so, he would not see what the people
in the house did.29 He contends that this intrusion into his
privacy "cannot be equated in plain view[;] therefore[,]
petitioner cannot be considered caught in flagrante
delicto."30 He submits that to "rule otherwise would be like
giving authority to every police officer to intrude into the
private homes of anyone in order to catch suspended drug
offenders."31
Respondent, on the other hand, counters that petitioner prays
for a review of the facts and evidence, which is beyond the
province of a petition for review on certiorari. 32 It asserts that
the warrantless arrest was valid, as "[t]he act of having a pot
session is clearly the overt act required under the law, which
indicates that petitioner is actually committing an offense." 33 It
argues that what prompted PO2 Villeran to enter the house
was not the noise from one (1) of the houses, but what he saw
petitioner and his companions were doing in the house where
they were apprehended.34
Further, respondent claims that since petitioner was not the
owner of that house, he had no "reasonable expectation of
privacy that must be upheld."35 It submits that "[a] houseguest
who was merely present in the house with the consent of the
householder cannot claim a reasonable expectation of privacy
in his host's home."36
This Court is asked to resolve the Issue of whether or not the
warrantless arrest against petitioner Simeon M. Lapi was
valid. However, this Court must first pass upon the procedural
question of whether or not the Petition should be denied for
raising questions of fact.
I
This Court is not a trier of facts. 37 A petition for review on
certiorari under Rule 45 of the Rules of Court must, as a
general rule, only raise questions of law. 38 Parties may only
raise issues that can be determined without having to review or
reevaluate the evidence on record.39 This Court generally gives
weight to the factual findings of the lower courts "because of
the opportunity enjoyed by the [lower courts] to observe the
demeanor of the witnesses on the stand and assess their
testimony."40
In criminal cases, however, the accused has the constitutional
right to be presumed innocent until the contrary is proven. 41 To
prove guilt, courts must evaluate the evidence presented in
relation to the elements of the crime charged. 42 Thus, the
finding of guilt is essentially a question of fact. 43 For this
reason, the entire records of a criminal case are thrown open
for this Court's review. In Ferrer v. People:44
It is a well-settled rule that an appeal in a criminal case throws
the whole case wide open for review and that it becomes the
duty of the Court to correct such errors as may be found in the
judgment appealed from, whether they are assigned as errors
or not.45
This Court is not precluded from reviewing the factual
findings of the lower courts, or even arriving at a different
conclusion, "if it is not convinced that [the findings] are
conformable to the evidence of record and to its own
impressions of the credibility of the witnesses."46 The lower
court actual findings will not bind this Court if facts that could
affect the result of the case "were overlooked and
disregarded[.]"47
An examination of the factual findings of the trial court and
the Court of Appeals shows no error that requires this Court's
review. On this ground, the Petition can be outright dismissed.
II
Even if this Court reviews the substantial merits of this case,
the Petition is still denied. The Court of Appeals did not err in
affirming the trial court's finding of guilt beyond reasonable
doubt.
A citizen's right to be secure against any unreasonable
searches and seizures is sacrosanct. No less than the
Constitution guarantees that the State cannot intrude into the
citizen's persons, house, papers, and effects without a warrant
issued by a judge finding probable cause:
Article III
Bill of Rights
....
SECTION 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.48
The Constitution guarantees against "unreasonable"
warrantless searches and seizures. This presupposes that the
State may do so as long as they are reasonable. People v.
Aruta49 outlines the situations where a warrantless search and
seizure may be declared valid:
1. Warrantless search incidental to a lawful
arrest recognized under Section 12, Rule 126
of the Rules of Court and by prevailing
jurisprudence;
2. Seizure of evidence in "plain view," the
elements of which are:
  (a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
  (b) the evidence was inadvertently discovered by the
police who had the right to be where they are;
  (c) the evidence must be immediately apparent[;] and
  (d) "plain view" justified mere seizure of evidence
without further search;
3.
4. Search of a moving vehicle. Highly
regulated by the government, the vehicle's
inherent mobility reduces expectation of
privacy especially when its transit in public
thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that
the occupant committed a criminal activity;
5. Consented warrantless search;
6. Customs search;
7. Stop and Frisk; and
8. Exigent and Emergency Circumstances.50
For a warrantless arrest to be valid, the arrest must have been
committed under the following circumstances:
RULE 113
ARREST
....
SECTION 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal
knowledge of facts or circumstances that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he
is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112.51
Here, petitioner was seen by police officers participating in a
"pot session."52 PO2 Villeran, respondent's primary witness,
testified that on the day of the incident, he and other police
operatives were conducting a "stake-out operation" in Purok
Sigay, Barangay 2, Bacolod City. He stated:
While I was passing on that house and upon hearing that there
was a noise inside the house, I peeped on the window and I
was able to see three persons sitting with a small table on the
middle of them, one of those person (sic) was holding an
alumin[u]m foil which was rolled and was used as a straw and
placed on his mouth while there was another foil with a not raising the objection before his arraignment.
lighted lighter in the bottom of that foil with the fume from
that foil he was sniffing through his mouth and after that he It is much too late in the day to complain about the warrantless
passed that aluminum foil from him to another.53 arrest after a valid information has been filed, the accused
arraigned, trial commenced and completed, and a judgment of
conviction rendered against him.
Petitioner was arrested and subjected to drug testing. When he
Accused-appellant was not even denied due process by virtue
tested positive for shabu, he was subsequently charged with
of his alleged illegal arrest, because of his voluntary
having violated Article II, Section 15 of Republic Act No.
submission to the jurisdiction of the trial court, as manifested
9165,54 which reads:
by the voluntary and counsel assisted plea he entered during
arraignment and by his active participation in the trial
SECTION 15. Use of Dangerous Drugs. — A person
thereafter.61
apprehended or arrested, who is found to be positive for use of
any dangerous drug, after a confirmatory test, shall be
imposed a penalty of a minimum of six (6) months
rehabilitation in a goverrnnent center for the first offense, In Bolasa, the accused were charged with possession of illegal
subject to the provisions of Article VIII of this Act. If drugs. This Court not only contended with the validity of the
apprehended using any dangerous drug for the second time, warrantless arrest, but also examined the validity of the
he/she shall suffer the penalty of imprisonment ranging from subsequent search of the accused and the seizure of items in
six (6) years and one (1) day to twelve (12) years and a fine their possession. As with certain constitutional rights, 62 the
ranging from Fifty thousand pesos (P50,000.00) to Two right to question the validity of a warrantless arrest can be
hundred thousand pesos (P200,000.00): Provided, That this waived. This waiver, however, does not carry with it a waiver
Section shall not be applicable where the person tested is also of the inadmissibility of the evidence seized during the illegal
found to have in his/her possession such quantity of any arrest.63
dangerous drug provided for under Section 11 of this Act, in
which case the provisions stated therein shall apply. Petitioner does not deny that his drug test yielded positive for
illegal drugs. What he questions is the alleged illegality of his
arrest.
Petitioner argues that his warrantless arrest was illegal since
Petitioner, however, has already waived the right to question
PO2 Villeran had to peep through the window to ascertain that
the validity of his arrest. No items were seized from him
something illegal was occurring. He posits that his case is
during his arrest as he was not charged with possession or sale
similar to that of People v. Bolasa.55 In Bolasa, the police were
of illegal drugs. Thus the trial court and the Court of Appeals
tipped off by an informant that people were packing drugs in a
did not err in finding him guilty beyond reasonable doubt in
certain house. Upon reaching it, the police officers peeked into
violation of Article II, Section 15 of Republic Act No. 9165.
a window, where they saw a man and a woman repacking
marijuana. The officers entered the house, introduced
WHEREFORE, the Petition is DENIED. The April 29, 2013
themselves as police officers, and arrested the pair. This Court
Decision and December 10, 2013 Resolution of the Court of
held that the arrests and the subsequent searches and seizures
Appeals in CA-G.R. CEB-CR No. 01564 are AFFIRMED.
were invalid as the arresting officers had no personal
knowledge that the people in the house were committing a
SO ORDERED.
crime.
Peralta, (Chairperson), Caguioa,* A. Reyes,
Here, however, petitioner admits that he failed to question the
Jr., and Carandang,** JJ., concur.
validity of his arrest before arraignment. 56 He did not move to
quash the Information against him before entering his
plea.57 He was assisted by counsel when he entered his
plea.58 Likewise, he was able to present his
evidence.59 In People v. Alunday:60

The Court has consistently ruled that any objection involving a

warrant of arrest or the procedure for the acquisition by the
court of jurisdiction over the person of the accused must be
made before he enters his plea; otherwise, the objection is
deemed waived. We have also ruled that an accused may be
estopped from assailing the illegality of his arrest if he fails to
move for the quashing of the information against him before
his arraignment. And since the legality of an arrest affects only
the jurisdiction of the court over the person of the accused, any
defect in the arrest of the accused may be deemed cured when
he voluntarily submits to the jurisdiction of the trial court. We
have also held in a number of cases that the illegal arrest of an
accused is not a sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after a trial free
from error; such arrest does not negate the validity of the
conviction of the accused.

Herein, accused-appellant went into arraignment and entered a

plea of not guilty. Thereafter, he actively participated in his
trial. He raised the additional issue of irregularity of his arrest
only during his appeal to this Court. He is, therefore, deemed
to have waived such alleged defect by submitting himself to
the jurisdiction of the court by his counsel-assisted plea during
his arraignment; by his actively participating in the trial and by