‘Republic of the Philippines Supreme Court Manila ‘THIRD DIVISION JONAH MALLARIy SAMAR, G.R. No. 224679 Petitioner, Present LEONEN, J, Chairperson, GESMUNDO, versus CARANDANG,” ZALAMEDA, and DELOS SANTOS," Lr PEOPLE OF THE PHILIPPINES, Promulgated: Respondent February 12, 2020 DECISION LEONEN, J. ‘When a person being apprehended by a police officer resists or uses force that is not dangerous, grave, or severe the offense is not dinect assault under Article 148 of the Revised Penal Code. Instead, the proper offense is resistance and disobedience to an agent of a person in authority, penalized under Article 151 of the Revised Penal Code. ‘robin NombreDesision 2 GR.No. 24679 ‘This Court resolves a Petition for Review on Certorri! questioning the Decision and Resolution of the Court of Appeals, which affimed with _moditiaton the Municipal Til Cour andthe Regional Trial Cour! conviction of Jonah Mallar y Samar (Mallar) forthe rime of dest assault Upon an agent of «person in authority. ‘An Information was filed against Mallari on May 31,2007. It read ‘That on or about the Twelts (129) da of ansry 2007 inthe City of Olongapo, Palippitcs, and within the jurieton ofthis Honorable Cour, the shove-named aeused while being paced by PO2 Richard F. [Navarowho was aduly qualified and appointed police fice of Olongape City and while te late was inte actual performance of his oficial dts, thats maintaining peace and der inthe a fealty athe sid aesed ‘wel Knowing before and during the asaut hat PO2 Richard F. Navarro ‘wh wae a ly appointed polie fier, as such, an agent ofa person in authority, did then and there willy unlawfully and felonious assault, tack, kek and slp su police officer. CONTRARY TO LAW? Mallari pleaded not guilty tothe charge during her arraignment, ‘Tal then ensued # ‘The prosecution presente the vietim, Police Officer 2 Richard Navarro (P02 Navarro), along with Senior Police Officer 3 Melanio Merza (SPOS ‘Merza) and Dr. Rolando Mafel Ortiz (Dr. Ortiz), sits witnesses The incident transpired on the early moming of January 12, 2007, According to the prosecution, at around 6:45 am., the Olongapo Police Station 3 received a report of an alteration on the ground floor of GenX Billiard Hall on Gordon Avenue. At this, PO2 Navarro and SPOS Merza, who ‘Were both in uniform, went to the ene. There, they found two (2) groups of ‘women fighting and pulling each others hair owt, among them a visibly drunk Mallar. The officers rushed to stop the ight.” 1a 390, th Obe 2015 Deen ms pmed ty Asoc ace Ma La Quo Psi wd cured ny Koc ac ci Da an Set Caso tn ‘emer ois Com fhe Spa Tien Dvn he Caf Ape, Ma int The hy 12.206 Rolin wa em by Avie oa La C. Quo ET Te et Dons oye Mein Oita mee. They 3, 2014 Dei a em yg Rolie M. Gin bale of neh 7 ele aldo ianDesision GR.No. 224679 Once the squabble was over the officers asked the women to go to the police staion to file proper complaints. However, the intoxicated Mallri shouted at them, “Wala tayo pakialam sa akin, hindi ako sasama sa inyo.""* She then grabbed PO2 Navarro by the collar, slapped his cheek, and kicked his legs several times. To restrain her, PO2 Navatro held her by the shoulders and brought her to the back ofthe patol car, SPO3 Merza was about to pacify the other women, but they eventually agreed to go tothe police station, ‘The incident was entered in the blotter and Mallari was detained for direct assault! PO2 Navarro was treated at the James Gordon Memorial Hospital for the minor injuries he got from Mallar! Dr. Ortiz issued him a medical certificate stating that he had sustained swelling on the zygomatic area ofthe cheekbone, “The defense presented the sole testimony of Mallar!" Mallari testified that at around 6:00 a.m. that day, she and her co- workers were singing at a karaoke bar in GenX Billiard Hall when they got into a heated argument with another group of women, which then escalated £0 4 pliysical ight, The nickus prompted the bar owner to send the women downstairs, but their fighting only continued," Later, Mallari added, the police arived and ordered them to board the patrol car. “Malar initially obeyed, but after noticing that her companions 4id not, she alighted from the vehicle. PO2 Navarro pushed her back in by holding her stomach and the collar of her blouse. When she stil attempted t0 alight, PO2 Navarro grabbed her by the ankles, spreading her legs open inthe process. When he pulled her dovn, she hither head and neck on the vehicle's floor, her buttocks hitting the ground.” After composing herself from the embarrassment, Mallari boarded the car and went with the officers tothe police station, ‘There, she was surprised ‘hat PO2 Navarro claimed that she had slapped him several times, She then called her mother and went to the hospital for a medical examination.” She \as found to have sustained the following injuries:Decision 4 GR.No.224679| CContusion 2x2 em medical aspect M/3 lft forearm ‘Contusion 2x2 em medical aspect P lft forearm ‘Contusion 2x2 em post aspect D3 let forearm ‘Contusion 0.5x0.5 em antero-medialaspoct MVS tight forearm “Abrasion 2 cm interseapulat aa Swelling ie thenar eminence.” ‘Mallar later filed a Complaint against PO2 Navarro and SPO3 Merza for unlaveful arrest, illegal detention, maltreatment of prisoners, and physical injuries. This was eventually dismissed by the Office of the Prosecutor.” In its September 5, 2013 Decision." the Municipal Trial Court found Mallari guilty beyond reasonable doubt of direct assault upon an agent of a Person in authority. It noted that Mallari admitted to kicking PO2 Navarro and grabbing his shirt while he was performing his official duties. It likewise gave premium to the prosecution's positive testimony against Mallari’s defense of denial® The dispositive portion ofthe Decision read WHEREFORE, foregoing considered, judgment is nereby seaderd finding accutd JONAH MALLARI y SAMAR, GUILTY ‘yond resonable doubt ofthe eime of Diset Assault upon an Agent of Person in Authority and bre sentences hero sfferan imprisonment of sion correctonal nits medium period of 3 rs, 6 mas and 21 days 1 4 ‘Years, 9 mas ama 10 days an to pay the fine of PPI O00.M. With cox ‘mains the aceuse, 80 DECIDED.* (Emphasis inthe original) ‘The Regional Trial Court affirmed Mallari's conviction in its July 30, 2014 Decision. It found that all the elements of the offense were present PO2 Navarro was an agent of a person in authority, and Mallari kicked, slapped, and injured him while he was engaged in the performance of his official duty. Tt found that no improper motive could be traced to the [prosecution's witnesses who clearly testified on the mater. Tt also noted that Mallatis defenses and denials were weak and uncorroborated * ‘The Court of Appeals in its October 27,2015 Decision, atfiemed with modification the Regional Trial Court's Decision, thus:Decision 5 GR.No, 204679 WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The Decision dated uly 30,2018 of the RTC, Branch 78, (tongapo City, in Ceiminal Cate No, 4414 i hereby AFFIRMED with MODIFICATION aso the imposabie penalty Pedtiner Jona Malay Samar ig hereby sentenced to sl a Indeterminate penalty of 0 (2) months of ares mayor a minim, to ‘v0 @) years and four (2) months of prison corecconal a maxi, He Islikewise ordered to pa fine of Five Hundred (Pp500.00 Pesos 0 ORDEREI 2 (Emphasis in the orginal) In ruling so, the Court of Appeals found that PO2 Navasto's testimony’ ‘was credible and ciear on how the incident occurred, while Mallar was unable to substantiate her claims. It held that Mallari was the aggressor and PO2 "Navarro was only compelled to restrain her as she was kicking him.” ‘The Court of Appeals denied Mallar’s Motion for Reconsideration in May 12, 2016 Resolution.” ‘Thus, Mallari filed before this Court a Petition for Review on Certorat,” claiming that the Court of Appeals erred in sustaining her convietion, Petitioner argues that PO2 Navarro's testimony that she repeatedly kicked and slapped him was inconsistent with his injury ofa slightly swollen cheekbone." She points out that it was she who suffered several injuries, consistent with her allegation that PO2 Navarro “held le feet, pulled her to the ground and caused hero hit her head, neck and buttocks," despite no ggtession coming from her. Thus, she says that her testimony should have been given more credence.” Assuming that she did kick PO2 Navarro, petitioner asserts that she was {uly justified in doing so as the officer unnecessarily held her fect, which constitutes unlawful aggression on her honor an dignty.** ‘The Office of the Solicitor General, on behalf of respondent People of ‘the Philippines, argued back that the Petition must be denied as it raises a «question of fact, which i not proper in petition for review on ceirar,?Desision 6 GR. No, 224679 In any ease, the Office of the Solicitor General insists that petitioner's assault on PO2 Navarro was sufficiently established. It points out that the medical certificate stating that PO2 Navatro had a slightly swollen cheekbone {does not nezate his testimony that he was repeatedly kicked by petitioner, as she herself admitted attacking the office, It also raises the other officers” testimonies affirming what had happened. From the totality of evidence, the Office of the Solicitor General argues that Mallar is the ageressor and her denials are weak defenses.” That PO2 Navarro was a police officer on official duty when petitioner assaulted him completes the elements of the offense charged.” For this Court’s resolution is the sole issue of whether or not petitioner Jonah Mallari y Samar is guilty beyond reasonable doubt of direct assault ‘upon an agent ofa person in authority. ‘This Court modifies the ruling ofthe Court of Appeals. ‘We affirm thatthe prosecution's evidenes is sufiient to uphold the findings of fact against petitioner. Questions of fact may no longer be rsd in Rule 45 petitions. In Spouses Mianov- Manila Electric Company: “The Rules of Cour states that a evow of appeals filed before tis Cours “nota mate of right but of sound judicial iseretion” The Rale= ‘of Cour further requires that ony questions ofl shouldbe risen pions fled under Rule 45 Since factual question are not the oper Subject ofan appeal by eriorar I not this Cou’ futon to once ‘gain analyze oF weigh evidence thal hae already been consered fa the Tower cours Bases Conversion Development Auhorty ». Reyes stings {question of aw fom a question of fe Jusispudence dicate that there is a “guetion of Jaw" when the dub or difference sizes as wht the J on a extn set of Tats or ereumstanes, on the other hand, there isa “guestion of fat” when the ese aed on ppea pertains othe rath or ality of te alleged ft The {es for determining wheshe he supposed eror vas one of “aw or “fet Is not the appailation given by the partes raising the same; ae, is whether the reviewing cot ean resolve the issues raised witout evaluating the evidence, in which eas, itis question of la; others, ts one ofc. Tn other word, where there tho dispute to the facts the ‘question of wheter or ot the conelasons dawn from hess fats are coect Is @ quesion of law However, ifthe > ieaaoe 2% PBA 016) fe. Loom, esol DivsDecision 7 GR.No. 224679 ‘question posed requires a t-evation ofthe eet of Witnesses, oF the existence or relevance of surounding lucumstances and their relationship to each her, the is fs fatal, Prevailing jurisprudence uniformly olds that Findings officio the tial cour, particlarly hea armed bythe Cour of Apple, oe binding ‘upon this Court, Is not the fuetion of his Court analyze or weigh och ‘evidence oversgsin, Is only in excepional cues where this Court may review findings o ut othe Court of Appeal” (Cian omit) In tis case, the Municipal Trial Cour, the Regional Trial Cour, and the Court of Appeals all consistently found that petitioner slapped and kicked PO2 Navarro while he was on official duty as a police officer” The lower courts arrived at this conclusion after thoroughly examining both parties" evidence, This Court will no longer disturb their uniform findings. However, petitioner should not be held guilty of direct assault, but rather, of the crime of resistance or disobedience under Anicle 151 of the Revised Penal Code. Article 148 of the Revized Penal Code defines and penalizes direct assault ARTICLE 148. Direct ass — Any potson ae persons who, without public uprising, shall employ foes Or ition forthe siainment of any ofthe purposes enumerated in defining the eimes of ‘rebellion and sedition, o hall aac, employ free or stows itimidete ‘resist any person in authority or ay of i agents, whl engaged in the performance of oficial duties, oon oeason of such perfomance, shall Sule the penalty of prison coreccona! im its medium aad maxima Peiodsand fie not exeatng 1,000 pesos, whe the assets commited ‘witha weapon or when te offender isa pubi cer or employee, or wen the offender lays hands upon a peton in authori. If none of these sireumstances he presen. the penalty of priviom corsceinal i is minimum period anda Tne no exceeding S00 peso tall be imposed, Direct assault may be committed in wo (2) ways: leit, by any person oF persons who, without 2 public uprising, shall ‘ploy force intimidation for the atsinment of ay ofthe purposes ‘numeraedin defining the cries of rbelion and seiton; and sean, by ‘ny person or persons who, without puble uprising, shall ack employ fore, or seriously intimidate resist any person in try or ay of his fap 38.7,Decision 5 GR No. 204679 agents, while engaged nthe performance of oficial tes, or an aceon af such performance” (Emphasis supplied, station omited) In this case, petitioner is charged with the second mode of assault, Its elements are the following: 1. That the offender (a) makes an atack,(b) employs fore, (e) ‘makes Serious intimidation, or (d) maker» serous resistance, 2. That the person assaulted is apron in authority ois wz, 3.-That a the ime ofthe assault she person in athorty his gent (0) is engaged inthe atl performance of oficial dies, (tht hei assaulted by reason ofthe pst performance of oficial utes, 4-That the offender knows dh the one he is asing it a person inauthority or his azent i the exercise of is duties $5. That thre is no public uprising, ‘A police officer is an agent of a person in authority."* An agent of a person in authority is one who, “by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property such a barrio ‘councilman, barrio policeman and barangay leader, and any person who jeaies to dhe wid of persons In authority" Being a police otter, PO2 "Navarro js an agent ofa person in authority. Petitioner was also aware that PO2 Navarro was a police officer, He introduced himself as one and was in his police uniform. He was performing his official duties as a police officer when he was pacifying the melee, and right when petitioner atieked him. Thus, the second, tied, fourth, and fifth elements of direct assault are present in this eas, However, the first element ofthe offense is not present. ‘To be considered as direct assault, the laying. of hands or the use of | 1 force against the agent of a person in authority must he serious hy In United States». Gumban, this Court held that the amount of force ‘employed against agents of persons in authority spells the difference between, direct assault and resistance of disobedience Gag Pept 60 PW, 116 200 [el Cab, Ft Don Lat 11 ti Luts eves, Te Rew Pn Coe ck e200, 9.122 ‘Gs rapa 61215 (180) Pr) Caan et Dino. ‘Rev pcan a2 amended fy Bas Pana Bl 85 (1985) © Som Doct Pe) Avene Ce BeeDesision ° GR.No. 224679 In reaching his conclusion, we took into account the dessin rendered by this cour inthe case agains! GeacioTabiana and Cals, in which ii said thatthe ditiaetion between an atsult and a ressance to agents of auority ies largely nthe amor ofthe force employed in each ese, hd “hata sudden bi given sou policeman while enganed in efecting an arrest doesnot consti that employment of force which punishable os ars. ‘We have also considered the decision rendered by this court inthe ease gains Cipriano Agustin. in which twas also beld that a blow upon & policeman was not an aguession amounting 10 ap assull. Ie must be Femetbered, however, hi in dase two eases the crime involved asta ff asalt upon agenis of authors, ia whic the event lement Is substantially the force employed. Its sai in hese tw cases thar ap orce {sno sufctent aeons an ase a thr i necessary 0 consider the eieumstancer ofeach cae to decide whether the force ures, i na, ‘ficient o constiute assault upon an agent of eahorty®© (Emphasis slid, etations omits) Previous convietions for direct assault against an agent of a person in authority involve force that is more severe than slapping and punching, In United States v. Cax; the accused “seized {the police officer] by the throat, {hrew him to the ground, and struck him several Blows with the lub which he suceeded in wresting ffom the policeman|.]""* In Rivera v. People,” the accused repeatedly hurled menacing threats sgainet the police officer, challenged him to.a fight, and scored a punch oa the lip as they grappled. The offer sustained an injury that would take several «days to heal, while the accused was only subdued withthe help of other police officers. Thus: the aceused pointed finger onthe poicrnan and tered wads ike Spaion kta ng buto™ (Nl beak your bows). “alamparo kia” sesub you). “Puli lang haya” (youre only pollesmen) and ober unsavory tnd insulting woes. Inspector Leygo who wa ali bit angry warned the ‘ces to stop uring farther insiting words and cautioned him ake it ‘ss and then informed him that he was bing sree fr violation of the chicken dung ordinance. ‘The secusod removed his ack, placed it inside the vehicle, assumed = Suing stance and challenged the policeman Inspector Leygo then approsched the soeuse ar warned htm anc hat he ws being aes. ‘The acused responded by punching Inspector Leygo ‘on his fee, prticlarty om his lip. The two on prappled as Inspector Leygo tied oho he acted. Fal wth the Help of Policemen Dayay and Bongrado, the aceused as subied. The accsed was then posed into one ofthe polis ears bt he esse uni Alfredo Cast on of the chicken dung dealers inthe aes, boarded the plc ett accompany him Inthe medicolegal centcate (Exhibit“A”) of Inspector Leyz, his injury desribed as “contusion with 05 laceration, upper ip, le ade” $k 14 (900 Per Tomes Ea Bas teat Sola 7 aos (rer. Gai tit sonDesision 0 GR.No, 224679 vith healing period fom 5 wo 7 days. Subsequently, this resent case was Filed agains the accused AAs clarified in People v. Breis* if the use of physical force against ‘agents of persons in authority isnot serious, the offense is not direct assault, but resistance or disobedience: The eying of hands or using physica force aginst agents of persons in authority” when not. sesous.in nie constits.resistanee, OF Aisobedience under Amie 51, an not direct asl under Arle 188 of the RPC. This is because the gravity ofthe disobedience to an order of pecson in aubority or his agent is measured hy the circumstances Surrounding the at, te motives prompting and he real imporece of the transgression, rather than the source athe onder disobeyed. The pushing of 101 Mangil is not of such sergus efinge to be considered dest ‘soit, but is esistance nontelesa (Citations omied) Resistance or disobedience is punished under Article 151 of the Revised Penal Code, which provides: ARTICLE 151. Resiaance and disobedience to a person in authority or the agents of suck person The pel of areso mayor ad {ine not exceeding 500 pesos shall he imposed upon ay person who no tine included in the provisions of the receding arcls shall est or Seriously disobey any person in autora, or the apents of such person, ‘le engaged in the performance of ec duties. ‘When the disobedience to an agent oF person in authority is nt of serious nature the peal of esto menor ora fie ranging ro 1010 10 pes shal be imposed upon the oer For this crime to be proven, the two (2) Key elements must be shown: “(1) That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order tothe offender; and (2) That the offender resists or seriously disobeys such person or his agent." In United Staves v. Tabiana. where the accused hit the police officer with his fist, this Court explained the rationale behind the distinetion in the force used: ‘Upon the wiole we find the defendant Tabana guilty of resistance and satous disobedience fo pubic authority under atl 252, Peal Coe and ot ofthe more serious offense indsted in subsection 2 of atc 28, 8 TaPh 15 2015). Cai, Second Dison ee % Sho Po, 746 Pi 916 932-935 2014 [eV Thin Dvn tng Lis ve, ‘Tenis NAL Cone Book ed (18) p15, STM Sisco ther) Sit, ea DslDecision u GR.No.208679 Penal Code, which was applied by the Court of First Instance, The question ‘whether an offense consist of simple ressiance oto gave vesitance i to ‘be detrminod witha wow tothe rmity of heat proved tthe particle conditions under which commited, In considering this question reference shoul also be had othe nature nd ete the penalties atached By the tutors f the Cadet the diferent offenses, Thus wh is abserved tat the offense indiested in aticle 249 caries with ita penalty ranging fom prsion correcional to priion mayor in its minimam degree, with Eorrespnding fines, it obvious thal the Ioumaker ere had i and Serious offenses, characterizedin prt atleast by the spine of aggression rected agains he authorities othe agent “The greatest hesitancy which we have felt in applying are 252 instead of atic 249 to this ease arses from the words “al enploy free gaist them” (emplearen fursa contra ellos) contained in article 249. “These words, taken without eferene tothe context, woul! se to make absolutely ncesay the appiction of atile 249 in every case where any ogres of fees exerted, We blieve, however that the words quae are tw be understood a applying lo free af more serious character than tht employed inthe present insane, We are led othe conslsion not only tecnise of he rive penalty atacod as india above, bt forthe Furst reason thatthe Code motions grave resistance farier on inthe same pargraph and also malas special provision for the offense of tmple resistance in atele 252. Now practically and rtonlly considered in onnestion withthe subject of ares resistance i imposible without the employment of some free. A man may abscond or evade or ele ars, tor may disobey the commands ofan officer without using force but be anno est wthout ung lore of some kind on some degree It the timate moment no force is employed to resist, there isnot resistance But submission; and it had been intended that every manifestation offre, however sigh, gains the autores and ther agents should bing he ease under ariel 29, vas an ile waste of words to make oer provisions over grave resistance and simple reste. It therefine sen esonable {0 hold that de words in aricle 249 eating wo the employment of force ace in some degree limited bythe connection in which they ae uscd and ate Jess peremptory than they at fist sem, Reasonably interpreted they eppear ‘ohavereferenteto someting more dangerous o cv soeety than simple ‘blow wit the hands a the momen a partys Taken into custody by & policeman.” (Emphasis supplied) In this case, it was established that petitioner grabbed the shirt of PO2 "Navarro, then slapped and kicked him several times. PO2 Navarro testified (Q: When you fsa) these) commotion, what did you and Pie oie Merza do? |A: We tied to stop them and introduced ourselves splice officers, si Won dsl he and ey sp? Zé (: What di you do next?Decision a GR.No, 220679 |AWe invited them atthe police tation, s that they wil fle their complain iter en, Did thoy abide on (ie) you? ALNo, ie And what did they do? ‘A: After telling them to go tthe poice station there was one (1) woman ‘who shouted: ‘WALA KAYO PAKIALAM SA AKIN. HINDI AKO SASAMA SA INYO." Was the woman who shouted pst of the group? Av Yes, siz, (What did you do then ater you head those words? ‘A: We continued telling them to board on the vehicle, but this woman Slapped me and kicked me, sir (9: You sid thar this woman eld your colli, ad sapped and kicked you ow many times were] you slapped? ‘A Teould no remember, st. ©: Where were (yo slappes? ‘A:Onmy dght cheek, i And whore were you kicked? A: On butt legs. si (Q: How many times were you kicked? A: Many times, it" Inthe January 12, 2007 Joint Affidavit of PO3 Merea and PO2 Navarro, they state: ‘That upon arrival theeat we saw a 180 group of female persons fighing each othe in front of ge-ex Biliad allocated slong Gordon ‘Avenue, New Asinan Olongapo City, That we immediately pacified them, Inoduced ourselves as Police eicers (i) despite we wesing our ‘cial Poice uniform and invited both parties involved fo station for oper disposition, but one of the person Ge avolved later ientio a= Jona (ic) Mallri ¥ Samar whe roeking withthe smell of alcoho beverages resisted and shows diesect and discbediense upon us, and luted the following remarks on top of her voice “WALA KAYO PAKIALAM SA'AKIN HINDI AKO SASAMA'SA INYO then she rbbed P02 Navarro (se) uniform and repestdly kicked hi and slapped him om hs face that eause (can nj this perso, snd placed ws oan embarassing situation pata p56,Desision B GR No, 224679 “That we compelled to uted (i) necessary and suicint freed (Gi) to arest him al brought (se) to our Staton Tr proper disposition” Mallar’ also admitted 10 this. Her testimony reveals: (Ms. Wines, in your complain affidavit [an] eer you mentions that PO2 Navazo wasn uniurm, abd he was iting ou oe tothe pice ‘ation, and in 2.4 paragraph of your complain alias Ms. Witness, on ‘he lst portion ofthe paragraph yo reationed "as atid eight gain ‘hrm mes wrabbed his shit io push himaway and kek im avy.” Now, syouradmit having grabbed the shit of polieeotier Navan? ‘A> Yes, Ma'am 0: You admit having kicked him? AA Yes, maa, wll et you read the part, “when I get up, PO2 Navaro approached me" So he was not doing anything bat approaching you, amet” 1X: Yes Mis [ah (©: And upon getting nour you Ms, Witness you pabbed his shit and kicked him ‘Ares, Ma'falns* Based on the circumstances, petitioner's resistance and use of force are rot so serious to be deemed as direct assault. While she exerted force, itis not dangerous, grave, or severe enough to warrant the penalties attached to the crime. Moreover, PO2 Navarro himself stated that he was not kicked hard Were you kicked hard by the accused? A:Not rally had sit, Court id you resent being Kickin the presence of the ladies? A: Yes, Your Honor” ‘Thus, instead of direct assault, this Court convicts petitioner of resistance or disobedience. Le ef = apDesison 4 GR. No. 204679 inevessarily includes the offense proven.®” Rule 120, Sections 4 and 5 of the Rules of Cour provide: SECTION 4. Judgment in case of variance between allegation and proof — When teres variance beeen the olfense charged in the complaint oe information snd Uist proves, and the oflense as charged is Incl ino nocerarily includes the offense proved the accused shal be ‘omsited ofthe offense proved whichis included in the alent charge foro the ofense charged which sled in the offese proved. SECTION 5. When an offense bctudes ori eluded tn another — An ollnte charged nevessay incides the offense proved when some ofthe essetial elements or ingredients of the former, a alleged inthe ‘complaint o infoemtion, consis the later And an offense charged is ‘eceatrly includ inthe offense prove, when the este ingredients ofthe former constute or form par of those consttng te ler. In this case, although the charge is direet assault, the prosecution was able to prove resistance or disobedience. These offenses have similar elements, varying only as to the degree of seriousness of the offender's resistance. Direct assault necessarily includes resistance or disobedience. WHEREFORE, this Court MODIFIES the October 27, 2015 Decision and May 12, 2016 Resolution of the Court of Appeals in CA-GR. CCR No. 36835. Petitioner Jonah Mallar’ y Samar is found GUILTY beyond reasonable doubt of the crime of resistance or disobedience under Article 151 of the Revised Penal Code. She is sentenced to suffer the penalty of imprisonment of arresto mayor, which covers one (1) month and one (1) day, as minimum, to six (6) months, as maximum, and a fine not exceeding 500.00. SO ORDERED. ‘ seociate Justice Soo Pepe, 71 Pi 98 2018) Ree, Ft DinDecision 5 GR. No. 224679 WE CONCUR: AL EiuNvo *Gociste Justice On special leave ROSMARI D. CARANDANG. Robi LAMEDA, ‘Associate Justice Aslepite Justice ee EDGARDO L. DELOS SANTOS ‘Associate Justice ATTESTATION | attest that the conclusions in the above Decision had been reached in consultation before the case was assigned ta the writer of the opinion ofthe (Courts Division - MARVIC (V.F. LEONEN Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII ofthe Constitution and the Division Chairpersons Attestation, I certify thatthe conclusions in the above Decision had been reached in consultation before the ease was assigned to the writer of the opinion ofthe Court's Division, DIOSDADO Chiet |. PERALTA,