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REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

DIVISION
PEOPLE OF THE PHILIPPINES,

Petitioner,

c,R. No. 220685

VCTSUS -

(CA-G.R. SP No. 128625;


Court of Appeals, Former
Fourth Division - Division

of Five)

ERNESTO L. DELOS SANTOS,

x_______ 1::11:!_"_"--x
PETTTION FOR REYIEW
ON CEBTIORABI UNIDEB RUI.E 45
The PEOPLE, through private complainant University of
Manila and with the conformity/ratification of the Office of
the Solicitor General, by counsel, respectfully states:
PREFATORY

Settled is the rule that "x x x in an action for certiorari,


the primordial task of the [appellate] lclourt is to ascertain

whether the lower court xxx acted with grave abuse of


discretion amounting to excess or lack of jurisdiction in the
exercise of judgment, such that the act was done in
capricious, whimsical, arbitrary or despotic manner. In a
petition for certiorari, the jurisdiction of the appellate court
is narrow in scope. It is limited to resolving only errors of

jurisdiction."1

A fortiori, the office of a certiorari petition


assailing the trial court's finding of probable cause for
' Chan v. Court of .,lgteals. C.R. No.

I-59922. 2ti

April ZOt)5,457 SCRA 205, 515


I

issuance of warrant of arrest is merely to determine whether


the same has factual and legal bases and are sufficient to
indict respondent for the crime charged. It is beyond the

ambit of the certiorari petition to rule on the credibility of


the witnesses and the probable value of the evidence so far
presented by the parties.

HERE, there exists probable cause for issuance of


warrant of arrest against accused-respondent for Qualified
Theft based on the following undisputed facts:

a.

ADMITTED

ACCUSED-RESPONDENT

CONCLUSIVELY

IN HIS COUNTER-AFFIDAVIT2 THAT DURING

HIS STINT AS THE GENERAL MANAGER AND OPERATOR OF


PRIVATE COMPLAINANT UM'S BPTI, HE CAUSED THE
TAPPING OF BPTI'S WATER AND ELECTRICITY TO BE
USED IN THE CONSTRUCTION OF HIS NEARBY CTTL
BUILDING.

b. PER THE CERTIFICATION ISSUED BY


CORPORATE SECRETARY,3

UM'S

NO UM BOARD RESOLUTION

WAS ISSUED AUTHORIZING ACCUSED-RESPONDENT TO


TAP WATER AND ELECTRICITY FROM BPTI TO HIS CTTL
BUILDING.

c. ON TOP OF ALL, ACCUSED-RESPON

DENT,S
SURREPTITIOUS ELECTRICAL AND WATER TAPPING WERE

MADE BY HIM WITHOUT THE KNOWLEDGE NOR

CONSENT OF THE UM BOARD OF TRUSTEES.

Rightly so, considering accused-respondent's aforesaid


conclusive admission, and based on solid factual premises
backed up by evidence, the OCP-Baguio City thus found
probable cause to indict respondent for Qualified Theft in its
Resolution on Review dated 23 September Zolf and

Second Resolution on Review dated 23 November

2}t7t.

On

respondent's appeal, such administrative probable cause


finding was affirmed by the DOI in its Resolution dated 0g
June 20156. Moreover, the RTC - Baguio City 7 and 60 later
found probable cause for issuance of warrant of arrest
't Please

see

Arnex "C" hereof.

Pl"n." scc Ccrtiflcation datcd 07 July 201 I issucd by UM's Coryrurate Sccrctary Atty. Diosdatlo G. Maclrid, attar:hcrl
as Annex to UM's Crirninal Comltlaint, Annex "8" hcr.eoi.
' PI"n." scc Arrnex "F" lrcreot.

'

t'

Pl"na" sec Anncx "1" hercof.


Pl"ns" sce Anncx "l(" hercof.

against respondent vis-ir-vis the charge for Qualified Theft.T


On respondent's petition for certiorari, the Court of Appeals
Ispecial Tenth Division] likewise unanimously affirmed the
frial courts' judicial determination of probable cause for
issuance of warrant of arrest against respondent, and
accordingly denied his certiorari petition.B
Decision dated 2!
November 2014 and Resolution dated 0B August 2015, the
Court of Appeals' [Former Fourth Division - Division of Five]
majority nonetheless reversed and set aside the trial courts'
above probable cause finding. This by practically accepting
hook line and sinker accused-respondent's defenses, to wit:
(a) his father Dr. Virgilio's alleged consent to his taking of
water and electricity from BPTI; (b) bona fide or good faith;
and (c) lack of intent to gain.

In its assailed split 3-2 Amended

to the court of Appeals' [Former Fourth

contrary
Division
and/

or

Division of Fivel majority's erroneous supposition


theory however, these hotly contested factual

issues of consent to the taking, good faith and lack of


intent to gain are matters of defense that ought to be

resolved by the trial court after a full blown trial on


the merits. Worse, aside from being premature such factual
findings are even prima facie belied by the records.
Indeed, by resolving the same this early, worse ahead of
trial, it effectively weighed the credibility of the parties'
respective witnesses and determined the probative value of
the evidence so far proffered by the parties. In doing so, the
Court of Appeals' IFormer Fourth Division - Division of Five]

if it was a trial court,


and worse indubitably went beyond its certiorari
majority had thereby acted as

j u risd

iction.

HENCE, THIS PETITION,

NATURE OF THE PEJITION

This is a petition for review on certiorari under Rule


45, L997 Rules of Civil Procedure, as amended, seeking
to annul and set aside the Court of Appeals'[Fourth
'8 Pl"n."
Pl"n."

see Anncxes
see Arrrrex

"L"

"V"

ancl

"Q"

hereof'.

hereof'.

Division of Fivel 3-2 Amended Decision dated


2L Novem ber 2OL4 , a nd Cou rt of Appea ls I Former
Fourth Division- Division of Fivel 3-2 Resolution dated
28 August 2015 in CA-G.R. SP No, L28265, entitled
*Atty. Ernesto L. Detos Santos vs' RTC - Baguio City, Br.
60 and 8r.7, and lJniversity of Manila, represented by
Emity D. De Leon", certified true copies of the said CA

Division

nd

Resolution
Annexes "A" and "A-1".

Decision

re attached hereto

as

TTMELINESS OF THE PETITION

On O3 December 2O14, private complainant UM

received a copy of the Court of Appeals' IFourth Division

of Fivel first assailed Decision dated 2L


November 2OI4 in CA-G.R. SP No. LZB265 which

Division

reversed and set aside the previous Court of Appeals'


[Special Tenth Division] Decision dated 30 July 20L3,
nullified the trial courts' finding of probable cause for
Qualified Theft against accused-respondent, dismissed
the complaint and quashed the warrant of arrest against
accused respondent, for which private complainant UM
timely moved for reconsideration thereof on L7
December 2OL4.

On 16 September 2O15, private complainant UM


received a copy of the Court of Appeals' IFormer Fourth
Division Division of Fivel second assailed Resolution
dated 28 Aug ust 20 15 denying its motion for
wh ich

to file with th is Honora ble Cou rt a petition for

review on certiora ri u nder

Ru

le 45 .

On 01 October 2015, on behalf of the People of the


Philippines, private complainant UM, on meritorious
grounds, moved for extension of thirty (30) days from
01 October 2015 or till 31 October 2O15 within which
to file this instant petition for review on certiorari.
On the same day of 01 October 20L5, the OSG, thru

Assistant Solicitor General Bernard G.

Herna

ndez,

had

assured DOI Prosecutor General Claro A. Arellano that the


OSG shall ratify or give its conformity to private complainant
UM's motion for extension of time to file petition for review

on certiorari, and this instant petition for review


certiora

on

ri .e

THE PARTIES

Petitioner People of the Philippines is represented


herein by the Office of the Solicitor General (*OSG")
pursuant to Section 35 (1), Chapter 12, Title III, Book IV,
Administrative Code of 1987, with office address at No. 134
Amorsolo Street, Legaspi Village, 1229 Makati City.

Private complainant University of Mania ("UM") is an


educational institution duly organized and existing under
Philippine laws, with office address at No. 546, M.V. Delos
Santos Street, Sampaloc, Manila. It may be served notice
and processes through its counsel Madrid Danao and
Carullo, at Suite 1609 lollibee Plaza, F. Ortigas, Jr. Road,
Ortigas Center, 1605 Pasig CitY.
Respondent Ernesto L. Delos Santos is of legal age,
Filipino and residing at No. 108 Cenacle Drive, Senville
Subdivision, Tandang Sora, Quezon City, where he may be
served notice and processes. He may be alternatively served
notice and processes through his counsel Atty, Filibon Fabela
Tacardon of Tacardon and Partners, of Unit 501, West
Mansion Condominium, West Avenue Cor. Zamboanga Street
L1O4 Quezon City.

STATEMENT OF FACTS
AND
ANTECEDENT PROCEEDINGS

1.

Sometime in 1913, the University of Manila was


organized and established by Dr. Mariano V. Delos Santos,
his brother Dr. Apolinario Delos Santos, Dr. Buenaventura
Bello, Atty. Antonio Rivera and Maria Delos Santos.

2. Per its Articles of

Incorporation, UM was

incorporated as an ordinary corporation. Through the years,


Plcasc sec tlrc OSC's lcttcr tlatcd 0l Octobcr 2015 to thc DOJ, attached as Anncx to this instant Petition's
Vcrilication and Ccrtiflcation Against Non-Foruru Shopping.

"

the UM Board of Trustees included individuals who are not


immediate members of the Delos Santos family.

Pursuant to the purposes under its Amended


Articles of Incorporation, specifically the establishment and
operation of tourist inns, private respondent UM established
in Baguio City the Benguet Pines Tourist Inn ('BPTI"), a
business entity without its own juridical personality.

3.

4.

Sometime in May 2007, respondent Ernesto

L.

Delos Santos ("respondent"), then being the General


Manager and Operator of BPTI, as well as Executive Vice
President and Vice-Chairman of the UM Board of Trustees

and University Registrar, commenced the construction of his

CTLL Building, which

is

nearby

or

adjacent

to

BPTI.

Consequently, sometime in July 2007, respondent instructed


Policarpio M. Lacsa ("Lacsa"), then his driver, to use the

electric current of BPTI for the ball cutter, bender and


welding that were being used for the construction of his

CTTL Buitding.'o However, this without

authorization/consent from nor knowledge of the


of Trustees.ll

any
UM Board

When the first floor of his CTLL Building was


finished, respondent then ordered Lacsa to make an
electrical connection coming from BPTI going to the
basement of the CTLL Building, to which the latter obeyed.12
Again, this was made without any authorization/consent
from nor knowledge of the UM Board of Trustees.

5.

6. On 2L January 2008, respondent's father, Dr.


Virgilio Delos Santos ("Dr.Virgilio"), died. Prior to his
death, Dr. Virgilio was the Chairman of the Board of

Trustees and 70.79o/a controlting stockholder of

UM.13

7.

During his period of illness, Dr. Virgilio was not in


good terms with respondent. In fact, Dr. Virgilio never
reconciled with respondent until his death.la
ru

Plcasc scc

"B"

"

Policlrpio Lacsa's Al'tldavit datcd 07

JLrly 2011, attachcrl as Annex

to UM's Crinrinal Cornpany, Anncx

hcrcol.

20ll issueil try UM's Corpolatc Secrctary Atty. Diosdndo G. Madritl, attachctl
Anncx to UM's Crinrinal Conrplaint, Anncx "8" hercot.

Pleasc sce Ccrtification datctl 07 July

as
l2

I,olicarpit'r Lacsa's Alfidavit ilated 07 July 201 l, Strpra..


Pl"as" scc Anncxcs "2" to"2-C" of rcsponclcnt's Countcr'-Allltlavit, Anncx "C" hcrcoil
la Pleose scc Afllclavit clated 0l Scptenibcr 200tt of Ma. Corazon Rarnona Llamas Delos Santos antl Sinunrpaang
Salaysay datcd 08 August 20ll of Elccta Dacuan Arovalo attacheil as Anncxcs to UM's Reply-Atlidavit, Anncx "D"
r3

hereof.

B.

Sometime in February 2009, respondent instructed


Lacsa to connect the water supply of CTLL Building to the
water installation of BPTI for the purpose of making water

supply to the second floor of CTLL Building, which

respondent intended to open for tourist who will be spending


the Valentine's day therein.ls Again, this tapping of water
supply from BPTI was without any authorization from the UM
Board of Trustees.

9.

At their meetings held on 18 May 20LI and 15 lune


2011, the members of the UM Board were informed that
BPTI, then under the management of respondent, had
incurred an operation net loss of Php717,555.13. It appears
that the said loss, among others, was due to the fact that

respondent was competing with

the business of

BPTI.

Worse, it appears that respondent was diverting the guests


of BPTI to his Dely's Inn located at the CTTL Building and
the employees of BPTI were even required by respondent to
serve in his Dely's Inn.

10. On 16 July 2011, Dr. Emily D. De Leon ("Dr. De

Leon"), President of private complainant UM, went

to
Baguio to check BPTI and its personnel. She was authorized
by the UM Board of Trustees to check and verify the various
anomalies allegedly committed by respondent while he was
managing BPTI, and to renovate the BPTI premises. There,
Dr. De Leon came to know about the 25 booklets of missing
receipts of BPTI which occurred while respondent was the
General Manager and Operator of BPTI.

11. Worse, Dr. De Leon was then apprised by Lacsa

about the illegal water and electrical connections made by


him upon instructions of respondent.16

L2. Thus, pursuant to its Board Resolution dated 15

June 20t7, UM, through its President, Dr. De Leon, filed on


0B luly 2011 a criminal complaintlT for Qualified Theft with
the Office of the City Prosecutor of Baguio City (*OCPBaguio City"), docketed as NPS Docket No. INV-11-01553.
This was subsequently raffled to investigating ACP Ma.
Nenita A. Opiana.
Is

Policarpio Lacsa's Aflitlavit datctl 07 July 201 l,Sttpro..


Plcas" sec the Al'lidavit datccl 07.luly 20ll of Dr. Enrily Dc Lcon, attachccl as Annex to UM's Criminal Cotuplaint,
Anncx "B" Ircrcot'.
l' A
of UM's Criurinal Cornplaint with Anncxcs is attachctl hercto as Artrlex "8".
lo

"c,py

13. On 28 July 20LI, respondent filed his counteraffidavitl8 wherein he categorically admitted that he
actually caused the tapping of water and electricity
from BPTI to his QTTL Building. However, by way of
defense, respondent claimed that his tapping of water and
electricity from BPTI to his CTTL Building were made with
the consent or permission of his father, Dr. Virgilio, majority
stockholder of UM.

L4. In its reply-affidavit,le UM through Dr. De Leon


pointedly debunked the purported consent or
permission of Dr. Virgilio and asserted that the same is

bven barred or prohibited under the "Dead Man's Statute"


rule. Dr. De Leon further pointed out that the sworn
statements of respondent's witnesses are highly self-serving
considering that Yolanda Calanza and Josephine Penera are
employees of respondent, and Cynthia Delos Santos-Chan,
sister of respondent, is his co-oppositor to the probate of
Dr. Virgilio's holographic will pending before the RTC-Manila.
She also pointed out that the UM Board of Trustees did not
authorize nor consent to respondent's tapping of water and
electricity from BPTI to his CTTL Building.
However, in its Resolution dated 29 July 1OLLZo,
the OCP-Baguio City thru ACP Opiana dismissed the
complaint for Qualified Theft for lack of probable cause.

15.

16. On 19 August ZALL, UM timely moved for

reconsideration2l of the Resolution dated 29 July zAlL. On


23 August ZOLL, UM filed its Amended Motion for
Reconsideration dated 22 August 20 !L", which respondent
opposed23.

t7. In its Resolution on Review dated

23

September 2O!L'o, the OCP-Baguio City thru ACP Rolando

T. Vergara reversed the earlier resolution of ACP Opiana and

found probable cause to indict respondent for the


crime of Qualified Theft.
l8

ct,1-,y

of rcsponclent's Cor.rrrtcr-Atl'ldavit is attachccl hcrcto as Allllex "C".

l' A aolry of UM's Reply-Ailidnvit witlr Anncxcs is attachcd hcreto as Altltex "l)".
20
Plcasc scc Anncx "F", rcspontlcnt's Petition trr Ccrtiolari dated l 5 Fcbruaty 20 3, Anncx "R"
1

2l

Plcase scc Anncx

"

2r

Pleasc sec Anncx

",,1,y
Attllex
"Bt'.

:{ A

hcreot.

"C", rcsponclcnt's Petition lirr Celtiontri dated l5 lrctrt'uat'y 2013,lbid.ol'UM's Artrcnclcd Motion lor Rcconsitlcration datctl 22 August 20ll with Antrcxcs is attachetl hcrcto

"o1ry

as

"[", rcspondcnt's Pctition lirr Ccrtiorari clatetl l5 Fcbt'uaty 2013, Supru..


of tlte OCP-Baguio City's Resolution on Review dated 23 Scptenrber 201 I is attachccl hcreto as Annex "F'n.

18. Thereafter, the corresponding information2s for

Qualified Theft was filed with RTC-Baguio City, docketed as


Criminal Case No. 32306-R entitled " People of the
Phitippines vs. Ernesto Delos Santos y Llamas." The case
was subsequently raffled to Branch 7 thereof then presided
by ludge Mona Lisa V. Tiongson-Tabora '

19. By virtue of the Warrant of Arrest26

Judge Tiongson-Tabora, respondent was

issued by
arrested on 27

Septem ber 20 1 1 .

20. Meantime, on 24 October 201L, respondent

reconsideration2T of the OCP-Baguio City's


Resolution on Review dated 23 September 2011, which UM

moved

for

opposed28.

Respondent likewise moved for inhibition2e of the


entire OCP-Baguio City from further taking part in the
proceedings. This however was denied by the- OCP-Baguio
bity per its Resolution dated 17 November 201130'

2L.

22. In its Second Resolution on Review dated 23


November 2OLL31 , the OCP-Baguio City thru Deputy City
Prosecutor-In Charge Gloria Caranto-Agunos denied
respondent's motion for reconsideration.

ResPondent then appealed via Petition for review


with the DOJ SecretarY the OCP-Baguio CitY's resolutions, to
which UM commented.32

23.

23.1 In its recent Resolution dated 09 June


201S33, the DOJ, thru Prosecutor General Claro A.
Arella no, dismissed respondent's petition for
review.

25

Annex ttG" hclco['.

plcn." scc Arrncxes "L" and "M", respondcnt's Pctition lirr Ccrtiolari datcd l5 February 2013,Srrpxr..
pl"1rsc scc Anncx "O", rcspondcnt's Pctition fbr Certiolari datcd l5 Fcbruary 2013, Supra..
28A.,.,1ry ol.UM's Oppositioir tlatcd 05 Novcutbcr 201 I with Attttexcs is attachctl hcrcto as Anllex "llo''
p
datctl I 5 Fcbru ary 2013, S:.rp ru..
'" 1"0." scc Allcx "P", r'csponrlcnt's Pctition tbr Ccrtiorari
3u
dated I 5 Fcbru aly 2013 , Supxr..
"R",
Ccrtiolari
lbr
Pctition
rcspondcnt's
P l"ase scc Alrrcx
,,A
lrcrcto
o{. tlre oCp-Baguio City's Scconcl Rcsolution on Rcvicrv datcd 23 Novcurbct'2013 is altachcd
"n,y
oolt'.
Allllcx

ro

17

3r

ll

A copy ol'UM's DOJ Comntent dntcd 02 January 2012 is atttohed ltercto as Annex
Arrncx "l(" hct'col.

"J"'

as

Meanwhile, on 03 october 20LL, respondent filed


with RTC-Baguio City, Branch 7 an Urgent Omnibus Motion
dated 30 september 2011, (i) for judicial determination of
to lift/quash warrant of arrest; a19 (iii)
probable cause; (ii)
-airaignment
and/or any proceedings3a. On
to defer/suspend
04 October 2011, respondent filed an Urgent Supplemental

24.

Motion3s.

25. In her Order dated 01 February 2OL236,


Judge Tiongson-Tabora denied respondent's sought
declaration of lack of probable cause, but surprisingly
granted his motion to post bail ruling that the instant

Qrulified Theft charge involving PhP3Million is NOT a "NONBAILABLE" offense. Respondent was then hastily released
from custody pursuant to the Order of Release dated 02
Februa

ry

207237

26. Thereafter, at his scheduled arraignment held on

06 February 2AL2, respondent pleaded "NOT

GUILTY"3B to

the crime charged of Qualified Theft.

27. Subsequently, both respondent, and

the
Prosecution thru private complainant UM, moved for partial
reconsideration3e of the Order dated 01 February 20L2. On
L7 February 20L2, the Prosecution filed an Urgent
Supplemental Motion for Partial Reconsideration.a0

28. Pending resolution of the parties' motions

for
partial reconsideration, UM then moved for inhibition of
Judge Tiongson-Tabora, which respondent opposed. In her
Order dated 05 October 20L2, Judge Tiongson-Tabora
inhibited herself from handling the case. Thereafter, the
case was re-raffled to RTC-Baguio City, Branch 60 then
presided by Judge Edilberto Claravall.

34

I,lcas" scc Arrncx


rs Pl"usc scc Anncx

"T", rcsponclcnt's Pctition lirl Ccrtiolari dated l-5 Fctrruary 2013, Supro..

"U", rcsponclcnt's Pctition lbr Ccrtiorari datcd I 5 February 2013, Stpra..


of thc RTC-Baguio City, Branch 7's Ordcr clatccl 0l Fcbruary 2012is attachccl het'cto as Annex
l7 "c,1ry
Annex "N'1" hclcol.
3uA

'tsAnnex

"N"

hereof.

"L".

t"A,,,rc*cs "V" antl "W", r'cs1;ondcnt's Petition firr Ccrtiorari clatcd l5 Febluary 2013, Supro.. A copy of UM's Motion
lilr Partial Rcconsidcration is attachctl hcrcttt as Atlnex "O".
{uAturg,
het'cof'.

"P"

l0

29. Subsequently, Judge Claravall issued his Order


dated 07 December 207,241, the dispositive portion of
which reads:

the foregoing
premises considered, the Motion for
Partial Reconsideration filed by the
accused Ernesto delos Santos is
DENIED for tack of merit.
However, the Motion for Partial
Reconsideration filed by the Private
Complainant is GRANTED. The Order of the
Court dated February l, 20LZ granting the
accused the right to bail is recalled.
Consequently, the bail posted by the
*WH

EREFORE, all

accused in the amount of P80,000.00 and


covered by Official Receipt No' L275OB7 is
hereby cancelled. Let the aforementioned

amount be returned to the payor upon


proper presentment of the official receipt
covering the said payment. Lastly, let a
new warrant be issued against accused
Ernesto Delos Santos." (Emphasis

in bold

supplied)

30. Since respondent remains at large and there is a

great possibility of flight, the Prosecution moved for issuance


of a Hold Departure Order against him. This Judge Claravall
granted in its Order dated 13 February 2013.

31.

Respondent then filed with the Court of Appeals a


petition for certiorari under Rule 6542 dated 15 February
2OL3 seeking the nullification of RTC-Baguio City, Branch 7's
Order dated 01 February 20LL and Branch 60's Order dated
07 December 2012. This was docketed as CA-G.R. SP No.
L28625, and raffled to the Tenth Division thereof.

32. Thereafter, in compliance with the CA Resolution


dated 22 March 2013, UM commenteda3 to respondent's
certiorari petition. Respondent then moved
replyaa to UM's comment, which UM opposed.as
o{'RTC-Baguio City,
''A
"o1',y ttlt"
o'Arrrr"*
hcrcot.
{3
44

"

to admit

Branclr (r0's Ortlcrdatcd 07 Dcccurbcr 2012is attachcd ltcrcto as Annex

Anrte* "S" hcrcot.


A,rrra, ttTtt lrercof.
Arrna* "Utt hcrcof'.

lt

"Q"

his

33. On 30 July 201.3, the court of Appeals [special


Tenth Divisionl unanimously issued its Decisiona6, the
dispositive portion of which reads:

*WHEREFORE, the instant Petition is

DENIED. The Order dated December 7,

}OLZ of the Regional Trial Court, Branch 7

Baguio City is hereby AFFIRMED in


toto. The case is accordingly REMANDED
to the trial court for further proceedings."

of

34. Thereafter, respondent moved for inhibition of the


Justices of the Court of Appeals [Special Tenth Division],
which UM opposed.

35, Subsequently, respondent moved for


reconsiderationaT of the CA Decision dated 30 July 2013. UM
then filed its comment/oppositiona8 thereto, to which
respondent replied.ae

36.

Meantime, after several postponements, the RTCBaguio City, Branch 60 was able to conduct the pre-trial
conference of the case on 26 February 2O!4, at which
accused-respondent dramatically changed his defense
claiming that:

" x x x he did not steal the electrical


and water facility of the Benguet Pines

Tourist Inn because the tapping made by


the accused was made on the transformer
of Benguet Pines Tourist Inn and not on its
electric meter of Benguet Pines Tourist Inn.
x x x"5o

37.

Despite the fact that respondent's accusations


were baseless and unfounded, ofl 05 March 2014, the Court
of Appeals' [Former Special Tenth Division] Justices Acosta,
Lampas Peratta and Antonio-Valenzuela inhibited from
further handling the case.

46

Anrrex o'Vt'hcrcof.

4' A,ru"*
"147" hcl'col.
'8 A,rrr"* "X'o lrcreol'.
4' Art,r"*
"Y" ltcrcof.
50
C,.,py of thc RTC - Baguio City, Br.anch (r0's Prc-Tlial Ordcr clatctl 2(r Februaly 2014 is attachecl hcrcto as Annex
,,D'

t2

38. The case was thus re-raffled to the CA Fourth


Division. SurprisinglY, voting 3-2, the Court of Appeals
[Fourth Division-Division Five] issued its Amended Decision
dated 21 November 20 !4t', the dispositive portion of which
reads:
*WHEREFORE,

Premises considered,
petitioner's Motion for Reconsideration is
GRANTED' The assailed Orders of the trial
courts are SET ASIDE. The Complaint of

Qualified Theft against the petitioner is


DISMISSED for lack of probable cause and

the warrant of arrest against him is


QUASHED.',

Thus, on 17 December 20L4, UM timely moved for


reconsiderationsz of the said Amended Decision dated 2L
November 2014, which respondent opposed.s3

39,

40.

On 28 August 2015, the court of Appeals IFormer


Fourth Division - Division of Fivel , dgdn voting 3-2, denied
UM's motion for reconsideration.sa
HENCE, THIS PETITION.

GROUNDS FOR ALLOWANCE


OF THE PETITION

I
THE COURT OF APPEALS' IFORMER
FOURTH DIVISION _ DIVISION OF FIVE]

WENT BEYOND ITS


CERTIORARI JURISDICTION IN
ISSUING ITS SPLIT 3-2 AMENDED
MAJORITY

DECISION DATED 2L NOVEMBER 2OT4


AND RESOLUTION DATED 28 AUGUST
20L5, IN THAT:
1.

IN CRIMINAL CASES, THE TRIAL


COURT HAS THE EXCLUSIVE
ORIGINAL ]URISDICTION TO TRY,

t'

Plcas" scc Arrrrcx "A"


tt Annex "AAo'hclcof.

hcrcol.

5l
Anrre* 'oBB" hcrcot'.
t4
Pl"n." sec Anrrcx "A-1" hcreot..

t3

HEAR AND RESOLVE CONFLICTING


FACTUAL ISSUES. EXCEPT IN

ORDINARY APPEAL, THIS POWER

CANNOT BE

PREMATURELY
THE COURT OF

ARROGATED BY
APPEALS IN A MERE CERTIORARI
PETITION.
2.

WORSE, THE COURT OF APPEALS'


IFORMER FOURTH DIVISION

DIVISION OF FIVEI
FIN

DINGS

MAIORITY',S

OF

*IMPLIED

AUTHORITY," BONA FIDE BELIEF


OR GOOD FAITH, AND LACK OF

INTENT TO GAIN HAVE

NO

FACTUAL AND/OR LEGAL BASIS.

rHE

II

COURT OF APPEALS',IFORMER

FOURTH DIVISION

- DIVISION OF FIVE]

MA]ORITY GRAVELY ERRED

IN
OCP-BAGUIO
REVERSING THE
CITY/DO]'S ADMINISTRATIVE FINDING
OF PROBABLE CAUSE AND THE RTC-

BAGUIO CITY, BRANCH 7 AND 60'5


DETERMINATION OF PROBABLE CAUSE
FOR ISSUANCE OF WARRANT OF

ARREST, IN THAT:

RE: CONFLICTING FACTUAL ISSUES

IF AT ALL, THE DISPUTED

FACTUAL
ISSUES HERE OUGHT TO BE HEARD,
TRIED AND RESOLVED FIRST BY THE
TRIAL COURT, NOT YET BY THE COURT
OF APPEALS. THE FOLLOWING ARE THE
CONFLICTING FACTUAL PROPOSITIONS
OF THE PARTIES:

1.

RESPONDENT CLAIMED THAT HIS


FATHER DR. VIRGILIO CONSENTED
TO HIS TAKING OF WATER AND
ELECTRICITY FROM UM'S BPTI TO
HIS CTLL BUILDING. IN CONTRA,
UM DENIED THE SAME ASSERTING
t4

THAT IT

WAS

HIGHLY
IMPROBABLE, IF NOT IMPOSSIBLE,
BREWING
CONSIDERING
BETWEEN
ANIMOSITY
RESPONDENT AND DR. VIRGILIO
EVEN PRIOR TO THE TIME OF THE
SUBJECT TAKING IN 2OO7 UP TO
DR. VIRGILIO'S DEATH IN 2OOB.

THE

2.

THE COURT OF APPEALS' IFORMER


FOURTH

FIVE]

DIVISION DIVISION OF

MAJORITY'S

SWEEPING

CONCLUSION THAT THE UM


BOARD HAD THEREBY IMPLIEDLY
AGREED OR ACQUIESCED, IS
HIGHLY INAPPROPRIATE AS THE
TRIAL COURT HAS NOT FACTUALLY
RULED THEREON YET.
3.

CONTRARY

TO THE COURT OF

APPEALS' IFORMER FOURTH


DIVISION DIVISION OF FIVE]

THEORY,
RESPONDENT'S ALLEGATIONS ON
VIRGILIO'S ALLEGED
DR.
CONSENT AND THE UM BOARD'S
IM PLIED ACQUIESCENCE ARE
HIGHLY DISPUTED FACTUAL
SPECIOUS

MATTERS THAT CAN ONLY BE


VENTILATED AND RESOLVED IN A
FULL BLOWN TRIAL BEFORE THE
TRIAL COURT.
4.

AS A MATTER OF
CAUSE, AS

PROBABLE
BETWEEN
RESPONDENT'S DEFENSIVE CLAIM
VERSUS UM'S CONTRA, THE TRIAL
COURTS' FINDING OF PROBABLE
CAUSE MUST PREVAIL.

RE: THE COURT OF

APPEALS,

IFoRMER FOURTH DTVTSTON


DIVISION
FIVE]
OF

MAJORITY'S
l5

CONCLUSIONS

ON IMPLIED

AUTHORITY,

BONA FTDE BELIEF OR GOOD


FAITH, AND THE ABSENCE OF
THE ELEMENT OF INTENT TO

GAIN THAT WERE USED

TO

THE TRIAL
FINDING OF
PROBABLE CAUSE, ARE
THE
INAPPROPRIATE IN
OVERTURN
COURTS'

CERTTORARI PETITION.

THE COURT OF APPEALS'IFORMER


FOURTH DIVISION _ DIVISION OF FIVE]
EXCULPATING
MAJORITY'S
CONCLUSIONS SOLELY UPHOLDING

RESPONDENT'S DEFENSES OF DR.


VIRGILIO'S PURPORTED CONSENT TO
TH E TAKING , BONA FIDE BELIEF OR
GOOD FAITH, AND LACK OF INTENT TO
GAIN, ARE HIGHLY INAPPROPRIATE IN

PETITION,

5.

THE OFFICE OF CERTIORARI IS


MERELY TO DETERMINE WHETHER

CERTIORARI
CONSIDERING THAT:

OR NOT THE TRIAL

COURT'S
FINDING OF PROBABLE CAUSE HAS
FACTUAL AND LEGAL BASES. IT IS
WH ETH
N
RESPON DENT'S

ER

OT

CLAIM VERSUS THAT OF UM IS


CORRECT, WHICH CAN ONLY BE
RESOLVED BY THE TRIAL COURT IN
A FULL BLOWN TRIAL.
6.

WITHOUT ANY ABUSE, LET ALONE

GRAVE, THE TRIAL

COURTS'
FINDING OF PROBABLE CAUSE IS

WELL

GROUN

DED U PON

TH E

FOLLOWING:

A. AS CONCLUSIVELY ADMITTED

BY HIM IN HIS

COUNTERAFFIDAVIT, RESPONDENT HAD


CAUSED THE TAPPING OF AND
DIVERTED
AND

WATER

l6

ELECTRICITY FROM UM'S BPTI


TO HIS CTLL BUILDING.
B. RESPONDENT HAD TAKEN
WATER AND ELECTRICITY FROM

UM'S BPTI WITHOUT

THE
CONSENT OF THE UM BOARD.

C. RESPONDENT'S DEFENSE THAT


WATER AND
THE
ELECTRICITY
CONSENT OF HIS "DECEASED'
VIRGILIO, IS
FATHER
FOREVER BARRED.

HE TOOK

WITH

DR.

D. RESPONDENT'S

DEFENSE

OF

LACK OF INTENT TO STEAL IS


EVIDENTIARY IN CHARACTER

AND SHOULD BE

BETTER
VENTILATED AND HEARD IN A
FULL BLOWN TRIAL.

7.

IF AT ALL, THE HOTLY CONTESTED

FACTUAL ISSUES OF

VIRGILIO'S CONSENT TO
TAKING, GOOD FAITH AND

DR.
THE
LACK

OF INTENT TO GAIN ARE INDEED

MATTERS OF DEFENSE THAT


OUGHT TO BE RESOLVED BY THE
TRIAL COURT IN THE TRIAL
PROPER,

III

THE COURT OF APPEALS

ISPECIAL
TENTH DIVISION] CORRECTLY RULED
IN ITS RESOLUTION DATED 30 JULY
NOT
2013 THAT RESPONDENT
MATTER
ENTITLED TO BAIL AS
SINCE:

1.

IS

PER THIS HONORABLE COURT'S


RULING IN PEOPLE OF THE
PHILIPPINES VS, HU RUEY CHUN
(G.R.NO. 158064.30 JUNE 2005;

462 SCRA 499 ,510- 5 1 5)


I7

AN D

OTHER
] U RISPRU

ESTABLIS

DENCE,

ED

INSTANT
CRIMINAL CHARGE AGAINST
RESPONDENT FOR QUALIFIED

EFT IN

TH

AMOU
TH
TH
PHP3,OOO,OOO.OO PER SE IS

NT

OF

A NON.

BAILABLE OFFENSE, AS THE


PENALTY THEREFOR IS RECLUSION

PERPETUA PER ARTICLE

RELATION

310

TO ARTICLE

IN
309,

REVISED PENAL CODE.


2.

PER EXISTING DOJ'S BAIL BOND


GUIDE FOR QUALIFIED THEFT, NO

BAIL SHALL BE RECOMMENDED FOR

TH

SU BJ

ECT CHARGE OF

QUALIFIED TH EFT WH ERE TH E


VALUE OF THE PROPERTY STOLEN
IS PHP3 MILLION, MORE OR LESS.

DISCUSSTON
I

THE COURT OF APPEALS'IFORMER

- DIVISION OF FIVE]
WENT BEYOND ITS

FOURTH DIVISION

MAJORITY

CERTIORARI JURISDICTION IN
ISSUING ITS SPLIT 3-2 AMENDED
DECISION DATED 2L NOVEMBER 2OL4
AND RESOLUTION DATED 28 AUGUST
20L5, IN THAT:

In Viudez ff vs, Court of

Appealsss, this Honorable

Court had explicitly explained:

"It is well to remember that there


is a distinction between the

preliminary

inquiryr

which
determines probable cause for the
issuance of a warrant of arrest; and
the preliminary investigation proper,
55

C.R. N,r. I-s2t189. 05 .lune 2009; 588 SCRA 345, 356-357.

l8

which ascertains whether the offender


should be held for trial or be released.

The determination of Probable


cause for Purposes of issuing a
warrant of arrest is made bY the
judge. The preliminary investigation
proper whether or not there is
reasonable ground to believe that the
accused is guilty of the offense charged
is the function of the investigating
prosecutor.

As enunciated in Baltazar v.
People, the task of the Presiding

judge when the Information is filed


with the court is first and foremost
to determine the existence or nonexistence of probable cause for the

arrest of the accused. Probable


cause is such set of facts and

circumstances as would lead a


reasonably discreet and Prudent
man to believe that the offense
charged in the Information or any
offense included therein has been
committed by the Person sought to

be

In

a rrested.

determining

probable cause, the average man


weighs the facts and circumstances
without resorting to the calibrations
of the rules of evidence of which he
has no technical knowledge. He

relies on common sense. A finding


of probable cause needs only to rest

on evidence showing that, more


likely than not, a crime has been
committed and that it was
committed by the accused.
Probable cause demands more than
suspicion; it requires less than
evidence that wou ld j ustifY
conviction." m phasis in bo ld
(E

supplied)

t9

Corollary,

in Serapio vs.

Sandiganbayaf,'u, this

Honorable Court had unequivocally stated:

"Absent any showing of


arbitrariness on the Part of the
prosecutor or any other officer
authorized to conduct preliminaty
investigation, COURTS AS A RULE
TO SAID

OFFICER,S
FINDING AND DETERMINATION OF
PROBABLE CAUSE, since the
determination of the existence of
probable cause is the function of the
prosecutor. " (Emphasis in capital and
bold suPPlied)

MUST bTTTN

Additionally, in Peopte vs. Teeu', this Honorable Court


had emphaticallY decreed:

magistrate's
determination of probable cause for
the issuance of a search warrant is
paid great deference by a reviewing
court, AS LONG AS THERE WAS
SUBSTANTIAL BASIS FOR THAT
DETERMINATION. Substantial basis
means that the questions of the
"xxx

examining judge brought out such facts


and circumstances as would lead a
reasonably discreet and prudent man to

that an offense has been


committed, and the objects in
connection with the offense sought to be
seized are in the Place sought to be
believe

searche d." (Emphasis in capital and bold


suPPlied)

just like the prosecutor's administrative finding


of probable cause and the trial court's determination of
THUS,

probable cause for the purpose of_ issuance of search


warrant, as long as the trial court's determination of
probable causJ fo. issuance of warrant of arrest is
amply supported by sufficient facts and evidence, the
5t'
57

C.R. No. 14tt769. 28 January 2003; 396 SCRA 45u, 468-469'

G.R. No. 14054(t-4'1 .20 January 2(X)3; 395 SCRA 419, 437-438

reverse
appellate court cannot interfere, let alone
in a mere certiorari Petition.

it'

its Resolution on Review dated 23 _september


T.
2011, the oCP-Baguio City, through ACP Rolando for
Vergara, found pr:onunt" cause against respondent
HERE, in

Qualified Theft, ratiocinating

t'After careful consideration of

the totality of the evidence submitted


on record by both parties, we find for
the complaint University of Manila'
AttY. Delos Santos' defense
of alleged exPress consent of his
late ?ather is barred and
prohibited under the "Dead Man's
bt"tut"" pursuant to Section 23,
Rule 13O of the Rules of Court'
The Supreme Court gives reason for
this rule that "a death has closed the
tips of one party, the policy of the law
is to close the liPs of the other",

Nevertheless, assuming for


the sake of argument that AttY'
Delos Santos' claim that his father
gave him express consent to
make such electrical and water
connections is true, bY his own

categorical admission and as


stated by his witnesses, such
consent of his late father, if there
was ?try, was onlY limited to the
period of the construction of the
CTLL building. However, even
after the comPletion of the CTLL
building, AttY. Delos Santos did
not disconnect the subject

electrical' and water connections,


as in fact, he surrePtitiouslY and
illegally continued to make use of
the same, to the grave damage

and prejudice of the UM. This,


despite the fact that sometime in
March 2O1O; he aPPlied with and

was granted bY the Baguio Water


District water service connection
for his CTLL building but
apparentty did not Push through
2l

with it for the obvious reason that

he could get electricitY and water


from the gPff at the exPense of
the UM.
More imPortantlY, since the

involved corPorate
propertY, it was not within his
iather's-sole decision to allow him
to taP electrical and water
services from the UM's BPTI' It
matter

indubitably required the approval


of the mijoritY of the board of
directors of the UM. ClearlY, AttY'

Delos Santos has fallen to

present, ds there was none, anY


board resolution aPProving such
electrical and water connections'

inevitable

conclusion
therefore is that the same were
made without the knowledge and
consent of the UM, the fact being
that the UM is an educational
juridical entity with a personality

The

distinct and seParate from its


stockholders and the same was

the
created Pursuant to
its
corporation law bY
a
incorporation. Being
corporation, the stockholders
have onlY an inchoate right to the
corporation's ProPerties' It is,
therefore, misleading for AttY'
Delos Santos to saY that the UM is
established and owned bY his

family as a juridical entitY which

owns the BPTI. AttY.

Delos

Santos' legal PrePosition that the


UM is a close corporation is not
tenable as under Section 96 of the
and
Code,
educational institution, like the

Corporation

UM, cannot be inc-orPorated as


close corporation.sB
XXX
xxx
(Emphasis in bold suPPlied)

t*At pp. 2-3, Annex "F" hercof

22

XXX.,,

Thereafter,inresolvingrespondent,smotionfor
Deputy city
reconsideration, il"," ocP Baguio city, thru
prosecutor I; charge Gloria caranto Aquino,. affirmed

in its. second

such probable cause finding

Resolution on

Review dated 23 November 2011, holding:

"We reiterate here that:

ResPondent-movant

AttY'

Delos
taPPing and

Santos' claim that his


consumption of electricity and water

from the Benguet Pine Tourist Inn which


is owned by the complainant University
of Manila was with the express consent
of his late father Virgilio D' Delos Santos
has been and should be considered

as barred and Prohibited under the


"Dead Man's Statute" under Section
23, Rule 13O of the Rules of Court'
ObviouslY, Dr. Virgilio D' Delos
Santos Ueing alreadY dead, there is
no way for him (Dr. Virgilio D' Delos

Santos) to confirm respondentmovani's claim of "consent" given


by his late father.
XXX

XXX

XXX

Respondent-movant should
have seriously considered the fact
that BPTI is owned bY comPlainant
UM which is governed bY its Board
of Trustees and, as such, it is onlY

the said board that has authority to


give valid consent to his use of
electricity and water from BPTI for
several years at the expense of
complainant UM' But he did not ever

seek such required consent

and

authority from the Board of


Trustees where he is even a
member and Vice-Chairman.

Further, the declarations of

witnesses Dr. Maria Corazon


Ramona Ll. Delos Santos and UM
23

employee Electa D' Arevalo would

negate respondentmovant'i allegition of consent bY

r..io.tslY

his late fathei Dr' Virgilio D' Delos


Santos for his tapping of electricity
and water from BPTI owing to their

severe

estranged
relationshiP as father and son way

apparent

back 2OO3 or even before, in that,


atl throughout the seasons of his
later father's being on his sick bed,
he, and even his sister Dr' CYnthia

were
rejected by their father to visit him
bdcause them ore his death will be

Ll. Delos Santos-Chan,

to the stress in
him
seeing them instead of THE
,""or-ering. THUS, WITH

accelerated due

APPARENT SERIOUS ESTRANGED


RELATIONSHIP WHICH LASTED UP
TO THE TIME OF DEATH OF THEIR
FATHER, NOT ANYONE OF RIGHT
MIND CAN PLAUSIBLY CONCLUDE

THAT RESPONDENT RESPONDENT'

MOVANT CAN OBTAIN


GENEROUS CONSENT OF

THE

HIS

FATHER FOR THE TAPPING AND


UTILIZATION OF ELECTRICITY AND

WATER FROM BPTI AND DIVERTING

IT TO CTLL BUILDING, ALSO, IT


WOULD NOT BE NECESSARY FOR
HIS FATHER TO INSTRUCT
JOSEPHINE PINERA AND YOLANDA
CALANZA, WHO ARE MERE

EMPLOYEES OF UM THEN ASSIGNED


AT BPTr, TO EXTEND SUPPORT TO
RESPONDENT-MOVANT TO INCLUDE
HIS ELECTRIC AND WATER NEEDS
WHEN HE WAS THEN THE GENERAL

MANGER AND OPERATOR OF BPTI


AND SAID TWO EMPLOYEES BEING
HIS MERE SUBORDINATES. SUCH IS

RATHER UNREAL AND CONTRARY

TO NATURAL EXPERIENCE.

24

We note the untimelY demise his


late father Dr. Virgilio D' Delos Santos
on JanuarY 2L,2008. Yet, he did not at
i.y time thereafter ever seek such

required consent and authority from-the


Board of Trustees of UM' Also, the fac!

UM
that the Board of Trustees of ot'l
has alreadY exPresslY Pointed
and acted against his aPParent
of interest in his
conf lict

management of BPTI and subject to


verification his unauthorized
tapping and use of electricitY'
*"i.tr-und other supplies from BPTI
to his CTLL building and DelY's Inn'

should have

comPletelY
disconnected and removed his said
tapping installations from the BPTI

he

immediatelY or soon after the

resolutions of the Board contained


in the Secretary's Certificate dated
June 15, }OLL was sent bY the

Corporate SecretarY to BPTI


through fax transmission in the late
afternoon of said date and that is
whether or not, at that time, his
CTLL building is still undergoing

construction. But he did not do so


even with and desPite the fact that
in march 2O1O he was able to get an
approved water service connection
wiitr the Baguio Water District for
his CTLL building.

THE INEVITABLE

FINDING

THAT CAN BE HAD UNDER THE


THAT
CIRCUMSTANCES I5

MOVANT
UNLAWFULLY TOOK, WITH INTENT
TO GAIN, ELECTRICITY AND WATER
FROM BPTI WITHOUT CONSENT
AND AT THE EXPENSE AND TO THE
RESPONDENT

DAMAGE AND PREJUDICE OF


COMPLAINANT UM WHICH OWNS

THE BPTI.

25

Because electricitY and water


from BPTI is corPorate PropertY of
complainant UM, it would onlY be
the Board of Trustees of UM that
can consent for and authorize
respondent-movant to tap electrical
and water utilities from BPTI'
ApparentlY, there was no board

resolution whatsoever aPProving


such electricitY and water were
made without the knowledge and
consent of the UM which in fact, is
an educational juridical institution

having distinct and seParate


p".sonality from its stockholders
under the CorPoration Code' As

such juridical entity or corporation,


the stockholders' inchoate right to
the corPorate ProPerties would be
vested on them onlY upon its
dissolution and liquidation of its

assets or ProPerties. Further, it


would be misleading to claim that

UM, which owns the BPTI, is


considered as a familY owned or

closed corporation considering that,


under Section 96 of the Corporation
Code, the UM, being an educational
institution, cannot be incorporated
as a close corporation. That being
the case, onlY valid consent or
authoritY from the Board of

Trustees of comPlainant UM can

to
iawfully take and avail of electricity
and water from BPTI.

permit respondent-movant
XXX

XXX

XXX

Likewise, we agree with the finding

in the Resolution on Review that


considering that resPondentmovant had a direct hand in the
management of BPTI in his caPacitY

as general manager thereof

and
that he did not in any manner denY

that while he was the manager anq


oPerator of the establishment' and

being then a stockholder and


,rr"--b.roftheBoardofTrusteeof
the comPlai nant U niversitY of

Manila whlch owns BPTI, and that


as such manager and oPerator of
BPTI and stockholder and member
of the Board of Trustees of
comPlainant UM, he had direct and
full access to the entire Premises
and buildings of BPTI, that he took

electricitY and water from BPTI


during the Period covered from
2OO7 and divert the same to his
own CTLL building and which
electricity and water consumption
of his CrLl building and DellY's Inn
which is housed therein was Paid
for, not bY him or his later father
Dr. Virgitio D. Delos Santos who
died on JanuarY 2L, 2OO8, but bY
comPlainant UM, the commission of
the offense charged against him
was attended bY the qualifYing
circumstance of grave abuse of the
confidence rePosed upon him bY
complainant University of Manila'"se
(Emfhasis in capital and bold supplied)

on respondent's appeal via petition for review, thein

thru Prosecutor General claro A. Arellano, affirmed


its Resolution dated 0B June 2015 such probable cause
DOJ,

finding of the OCP-Baguio City, holding:

"This resolves the petition for review


of the "Resolution on Review", as well as
the "second Resolution on Review" of the
City Prosecutor of Baguio City in the abovecaptioned case, both upholding the finding
of probable cause for qualified theft against
respondent-appellant Atty. Ernesto L' Delos
Santos.

s"At

1r1r.

l4-l(r, Annex "l" lrcrcof.

27

JUDICIOUSLY
REVIEWED THE RECORDS OF THIS
CASE VIS-A.WS THE ARGUMENT IN
RESPONDENT.APPELLANT'S PETITION'
BUT WE DID NOT FIND ANY
COMPELLING GROUND OR REASON TO
REVERSE OR MODIFY THE FINDINGS
HAVE

WE

AND

CONCLUSION OF

THE

INVESTIGATING OFFICE, WHICH


CORRECTLY RULED THAT THE

ESSENTIAL ELEMENTS OF THE CRIME


OF QUALIFIED THEFT ARE PRESENT IN
THE CIRCUMSTANCES OF THIS CASE.
Hence, Pursuant to Section 1'2 of
Department Circular No' 70 dated July 3'
2000, this petition may be dismisse! m9,tu
proprio since there is no showing that the

investigating office committed any


reversible error in the questioned
resolutions,

is

WHEREFORE, the Petition for review

hereby DISMISSED''60 (Emphasis

in

caPital and bold suPPlied)

Thereafter, in resolving respondent's motion for

declaration of lack of probable cause for issuance of warrant


of arrest, the RTC-Baguio City, Branch 7 in its Order dated
01 February 20L2, founO probable cause against respondent
for Qualified Theft, ratiocinating :
"Probable cause is the existence of
such facts and circumstances as would
excite the belief in a reasonable mind

that a crime has been committed and


that the respondent is probably guilty
thereof and should be held for trial. In
the present case, the Court agrees with

and affirms the findings of the


investigating prosecutor, Assistant City
Prosecutor Rolando T. Vergara, that

probable cause indeed exists for the


indictment of the accused for the crime
of qualified theft considering that he
himself admitted that he cause the

tapping of and diverted electricity


t"Anncx

"l(" hcrcof
28

and water from the Benguet Pines


Tourist Inn (BPTI) which is owned
by the University of Man-ila. (UM) to

the CTLL building which he owns


withouttheconsentofapprovalof
theBoardofUM'Liketheinvestigating
prosecutor, the Court finds that the
defense relied upon bY the accused'
that is, that the taPPing 'nq
diversion was with the consent of
his late father, Fr' Virgilio D' Delos

Santos is barred and Prohibited


under the "Dead Man's Statute"

under Section 23, Rule 13O of the


Rules of Court' Dr' Delos Santos
couldnotpossiblyconfirmtheclaim
of the self-serving allegation of the
accuse 6.n6t (Emphasis in bold supplied)

partial
subsequently, ruling on respond-ent's motion for
2072, the
reconsideration oi'tt'l" order dated 01 February
dated 07
RTC-Baguio city, Branch 60 affirmed in its order
of RTCDecember 2012 the above finding of probable cause
Baguio CitY, Branch

decreeing:

'tThe issue raised by the accused in


his Partial Motion for Reconsideration
must first be resolved considering that

the same involves the question on

whether or not probable cause exists to


indict him of the crime charged in the
information, It must be pointed out that
the accused is charged with the crime
based on the existence of a probable
cause. Probable cause is defined as a
reasonable ground of presumption that
a matter is, or may be, well-founded in
such a state of mind as would lead a
person of ordinary caution and prudence
to believe or entertain an honest or
strong suspicion that a thing is so' It is

also defined as such facts as

are

sufficient to engender a well-founded


belief that a crime has been committed

t" At

1,.

2, Arrncx

"L"

lrcleol.

29

respondents a re proba bly


guilty thereof. There are two kinds of
determination of probable cause;
a

nd that

executive and judicial. In the case


at bar, probable cause against the

accused has

already

been

determined under both instances.


THE CONTENTIONS OF THE

IN HIS PRESENT MOTION


ARE EVIDENTIARY IN NATURE. THE
ACCUSED

SAME ARE BETTER APPRECIATED IN


A FULL-BLOWN TRIAL OR IN A
MORE APPROPRIATE MOTION. THE

OR ABSENCE OF THE
ELEMENTS OF THE CRIME IS
PRESENCE

EVIDENTIARY IN NATURE AND IS


MATTER OF DEFENSE THAT MAY BE
PASSED UPON ON A FULL-BLOWN
TRIAL ON THE MERITS."62 (Emphasis
in capital and bold supplied)
Further, in ruling on respondent's petition for certiorari,
the Court of Appeals [Special Tenth Division] in its 30 July
2013 Decision then unanimously denied respondent's
certiorari petition, and affirmed in toto the above trial courts'
finding of probable cause against respondent for Qualified
Theft, holding:

*HERE,

WE FIND NO

GRAVE

ABUSE OF DISCRETION COMMITTED

BY THE TRIAL COURT IN


AFFIRMING THE INVESTIGATING
PROSECUTOR'S FINDING OF
PROBABLE CAUSE TO HOLD
ERNESTO FOR TRIAL FOR
QUALIFIED THEFT.
XXX

XXX

XXX

In this case, Ernesto never


denied having used or tapped the
electricity and water of BPTI;
alleging only that the same was
t't At p. 2. Anncx "Q" hcrcol.

30

made with the consent of his late


father Virgilio, who, at the time the
construction of the CTLL Building
commenced, served as President of
UM, The Pivotal issue therefore is
whether the prosecutor and the trial

court has reason to believe that


Ernesto's taking of electricity and
water constitutes qualified theft'

WITH ERNESTO'S ADMISSION/


THE COURT AGREES THAT IT IS
PROBABLE THAT THE CRIME OF

QUALIFIED THEFT HAS

BEEN

CorrrMrrrED AND THAT ERNEsro rs


PROBABLY GUILTY THEREOF. TO
reiterate, We are not here concerned
with the finding as to whether all the
elements of qualified theft have been

sufficientlY Proven to warrant

conviction, because to require the same


would already be beyond the scope of
the prosecutor and the trial court's task
of determining probable cause, as these

are matters which are

ProPerlY

addressed in a full blown trial.63


XXX,,
XXX
(Emphasis in capital and bold suPPlied)

XXX

Despite such sound disquisitions, _the court of Appeals

IFormer Fourth Division-Division of Five] nonetheless


iur"rr"d and set aside the foregoing OCP-Baguio City/DOl's

administrative finding of probable cause, and the RTC


Baguio City, Branch 7 and 60's determination of probable
cause for issuance of warrant of arrest, as affirmed no less
by the court of Appeals [special Tenth Division].
HOWEVER, the court of Appeals'IFormer Fourth
Division-Division of Fivel majority went beyond its certiorari
jurisdiction in issuing its assailed split 3-2 Amended Decision
and Resolution, in that:

otAt
1r1.,.

l0-12, Anncx "V" hcrcot


31

1. IN

CRIMINAL CASES,

TRIAL COURT HAS


EXCLUSIVE

THE
THE

ORIGINAL

]URISDICTION TO TRY, HEAR

AND RESOLVE

CONFLICTING
FACTUAL ISSUES, EXCEPT IN
ORDINARY APPEAL, THIS
BE
POWER

CANNOT
ARROGATED BY THE COURT
OF APPEALS IN A M ERE
CERIIORAR/ PETITION.

criminal cases, the trial court has the exclusive


original jurisdiction to try, hear and resolve the parties'

In

conflicting factual issues. This, upon its due determination of


probable cause vis-d-vis the issuance of the corresponding
warrant of arrest. This power cannot be arrogated by

the appellate court in a mere certiorari petition where


the sole issue is "grave abuse". The only time that the
appellate court can review the factual findings of the trial
court is when the decision on the merits is brought to it on
ordinary appeal. This ordinary appeal however is only
possible when a full blown trial shall have been conducted
and held by the trial court.

MERE
AHEAD OF TRIAL ANd WORSE, IN A*GRAVE
CERTIORARI WHERE THE ISSUE IS MERELY
ABUSE", the Court of Appeals' [Former Fourth Division
Division of Fivel majority had indubitably resolved already
the conflicting factual allegations of the parties. It effectively

weighed the credibility of the parties' respective witnesses

and determined the probative value of the

respective
evidence presented by them, matters ripe only in ordinary
appeal. The Court of Appeals' IFormer Fourth Division
Division of Fivel majority, for reasons known only to them,
have accepted hook, line and sinker respondent's factual
defenses/allegations. This despite the fact that these factual
matters were explicitly:

a. DENIED AND CONTROVERTED BY UM, MORE SO,


ARE BELIED BY THE RECORDS;
b, BRUSHED ASIDE BY THE OCP - BAGUIO CTTY /
DOJ AND THE RTC BAGUTO CrTY, BRANCH 7
AND 60 AS DEFENSIVE TRIABLE ISSUES OF
FACT; AND
32

oF APPEALS', [SPECIAL
c. HELD BY THE COURT *MATTERS
OF DEFENSE
TENTH DIVISIONI AS
BETTERAIREDDURINGTHETRIALPRoPER".
clearly, in resolving early the contested factual issues,
of
the Court of Appeals [n-ormei Fourth Division Division
Fivel had thereby acteO as if it was a trial court, and worse
went beyond its certiorari jurisdiction'

In point, in Marcos-Araneta vs, Court ot ayyealsla,

this Honorable Court had decreed that the Court of Appeals'is


Rule 65,
in its exercise of its certiorari jurisdiction underjurisdiction'
limited to reviewing and correcting errors of
eruditely exPlaining:

n, TH E CA
OVERSTEPPED ITS BOUNDARIES
WHEN, IN DISPOSING OF PRIVATE
RESPONDENTS' PETITION FOR
" Clea

rlY

the

CERTIORARI, IT DID NOT CONFINE


ITSELF TO DETERMINING WHETHER
OR NOT LACK OF JURISDICTION OR
GRAVE ABUSE OF DISCRETION

TAINTED THE ISSUANCE OF THE

ASSATLED RTC ORDERS,


PROCEEDED TO PASS ON

BUT
THE
FACTUAL ISSUE OF THE EXISTENCE
AND ENFORCEABILITY OF THE
ASSERTED TRUST. IN THE PROCESS,
THE CA VIRTUALLY RESOLVED
PETITIONER IRENE'S CASE FOR
ITS
ON
RECONVEYANCE
SUBSTANTIVE MERITS EVEN
BEFORE EVIDENCE ON THE MATTER
COULD BE ADDUCED. Civil Case Nos'
334L-t7 and 3342-17 in fact have not

even reached the pre-trial stage.

To

stress, the nature of the trust allegedly

constituted in Irene's favor and its


enforceability, being evidentiary in
nature, are best determined by the trial
court. The original complaints and the
amended complaint certainly do not

even clearlY indicate whether the

t'{

C.R. N,,. 15409(r. 22 Augtrst 200til 5(rl SCRA' 4l ' 58--59'

JJ

asserted trust is implied or express. To


be sure, an express trust differs from
the implied varietY in terms of the

manner of proving its

existence.

Surely, the onus of factuallY


determining whether the trust
allegedly established in favor of

if one was indeed


Irene,
established, was implied or express

properly Pertains, at the first


instance, to the trial court and not
to the aPPellate court in a sPecial
civil action for certiorari, as here.
In the absence of evidence to Prove
or disprove the constitution and
necessarily the existence of the
trust agreement between lrene,

on
one hand, and the Benedicto GrouP,

on the other, the aPPellate court

cannot intelligently pass upon the


issue of trust. l\ Pronouncement on

said issue of trust rooted on


speculation and conjecture, if
properly challenged, must be struck
down, So it must be here"' (EmPhasis
in bold supplied)

Contrary

to the Court of Appeals' _[Former Fourth

- Division of Five] majority's stanceuu, while MarcosAraneta had different factual milieu from the instant case,
the enunciated ruling therein is clearly relevant and
Division

applicable to this case

Clearly, far from limiting itself in resolving whether the


trial courts had gravely abused their discretion in finding
probable cause for issuance of warrant of arrest against
accused-respondent, the Court of Appeals' fFormer Fourth
Division - Division of Fivel majority delved already with the
merits of the case as it already ruled in favor of accusedrespondents' controverted factual defenses. This logically
presupposed the weighing of the parties' evidence and
determining the credibility of parties' respective witnesses,
which however were highly inappropriate and improper at
this stage of the proceedings.
t'5

At p. -j, Anncx "A-1"'hcrcof

34

2.

WORSE,

THE COURT

OF
APPEALS'IFORMER FOURTH
DIVISION OF

DIVISION

FIVE] FINDINGS OF "IMPLIED

AUTHORITY", BONA FIDE


BELIEF OR GOOD FAITH AND

LACK OF INTENT TO GAIN


HAVE NO FACTUAL AND/OR
LEGAL BASIS.

As the ocP-Baguio city/Dol, the RTC Baguio city,


Branch 7 and 60 and the 3-0 unanimous Court of Appeals
[Special Tenth Division] had spoken on the existence of
[robable cause against respondent, it then behooved upon
tf-l* Court of Appeals IFormer Fourth Division Division of
Fivel to heed their call. This, as such determination of

probable cause is well grounded on palpable valid


tacts, albeit contested by respondent. This matter of
exercise of discretion ought have been the only issue in the
certiorari petition. Specifically, on the matter of grave abuse
only. It cannot go beYond.

Accordingly, the split 3-2 Amended Decision dated 2t


November 2OL4 and Resolution dated 28 August 2015
upholding respondent's factual propositions and therefore
reversing tlre RTC Baguio City, Branch 7 and 60 judicial
finding of probable cause for issuance of warrant of arrest
against accused respondent, and the Court of Appeals'
[Special Tenth Division] 3-0 unanimous Decision dated 30
July 2013, is UNPROCEDURAL. It resolves substantive

issues in an improper and inappropriate manner,


divesting and skipping the original and exclusive
jurisdiction of the trial court to hear, try and decide
factual issues.

II

THE COURT OF APPEALS'IFORMER


FOURTH DIVISION

- DIVISION OF FIVE]

MAJORITY GRAVELY ERRED IN

REVERSING

OCP-BAGUIO
CITY/DOJ'S ADMINISTRATIVE FINDING
OF PROBABLE CAUSE AND THE RTCTH E

BAGUIO CITY, BRANCH 7 AND 60'5


DETERMINATION OF PROBAtsLE CAUSE
35

FOR ISSUANCE OF WARRANT

OF

ARREST, IN THAT:

RE: CONFLICTING FACTUAL ISSUES

IF AT ALL, THE DISPUTED FACTUAL

ISSUES HERE OUGHT TO BE HEARD,


TRIED AND RESOLVED FIRST BY THE
TRIAL COURT, NOT YET BY THE COURT
OF APPEALS. THE FOLLOWING ARE THE
CONFLICTING FACTUAL PROPOSITIONS
OF THE PARTIES:
1

DENT CLAIM ED THAT


FATHER DR. VIRGILIO

RESPON

HIS

CONSENTED TO HIS TAKING


OF WATER AND ELECTRICITY
FROM UM'S BPTI TO HIS CTLL

BUILDING.

IN

CONTRA,

UM

DENIED THE SAME ASSERTING

WAS

THAT IT

IM PROBABLE,

HIGHLY
NOT
IF
CONSIDERING

IMPOSSIBLE,
TI-{E BREWING ANIMOSITY
BETWEEN RESPONDENT AND
DR. VIRGILIO EVEN PRIOR TO

THE TIME OF THE


TAKING

IN

SUBJECT
2OO7 UP TO DR.

VIRGILIO'S DEATH IN

2OOB.

In its assailed Amended Decision, the Court of Appeals


IFourth Division Division of Five] seemed to have
supposed, albeit erroneously, that respondent's father Dr.
Virgilio had consented to his taking of water and electricity
from UM's BPTI to his CTLL Building, viz.:
"The fourth element of the abovementioned crime, i.e., that it be done
without the owner's consent, is absent
in this case. Petitioner's use of the
electricity and water supply of BPTI was
done with the consent and imprimatur
of his father, Virgilio, who was at that

time the majority stockholder and

President and Chairman of the Board of


Trustees of UM which in turn owns BPTI.
36

The peculiar circumstances of this case


permit a conclusion that Virgilio was
given an apparent authoritY bY the
Board of Trustees of UM to give such
consent on behalf of the latter."66
Despite private complainant UM's pointed argument in
its motion 'for reconsideration against such erroneoUs
supposition, the Court of Appeals [Former Fourth DivisionDivision of Fivel did not even bother to explain the same in
its Resolution dated 2B August 2015. There, it nonchalantly
reiterated its say-so finding:
"Petitioner's use of the electricity and
water supply of BPTI was with the consent
of his father who was at that time the

majority stockholder and President and


Chairman of the Board of Trustees of UM.
Virgilio Delos Santos gave his consent to
his son (herein petitioner) to use BPTI's
electricity and water supply in 2007.
Thereafter, and until Virgilio's death in
2008, the Board of Trustees of UM did not
object to or repudiate said consent."67

RECORDS WOULD HOWEVER SHOW THAT FI\R


FROM BEING A SETTLED FACTUAL ISSUE,
RESPONDENT'S FACTUAL ALLEGATION THAT HIS
FATHER DR. VIRGILIO HAD CONSENTED TO HIS
TAKING OF WATER AND ELECTRICITY, WAS
POINTEDLY CONTROVERTED AND DISPUTED BY UM.

In its amended motion for reconsideration of the OCPBaguio City's Resolution dated 29 July 2011, UM had

explicitly contested respondent's aforesaid allegation, to wit:

"More on the issue of consent,


the Sinumpaang Salaysay executed
by Electa D. Arevalo (attached to the
Roelo [src]) would negate any such

consent by Atty. Virgilio de los


Santos to the tapping of electricity
and water by Atty. Ernesto de los
Santos. Said affiant stated:

uo

At
t" At

1',.

1,.

B, Annex "A" hcrcol'.


(r Annox "A"-1" hcrcol'.

5t

'11. Noong MaY L3, 2003 siYa

(referring to Virgilio de los Santos) ay


mahospital ulit sa kanyang sakit na

prostate cancer sa Medical Center


Manila. Ako uli ang nag-alaga at

nabantay sa kanya. Ang bilin sa akin ay


away iyong bibisitahin siya ng kanyang
. asawa at mga anak na sina AttY'
Ernesto de los Santos at Dr. Cynthia de
los Santos Chan. Baka siYa raw aY
mas lalung mamatay kaysa gagaling.'

'9. Sa tuwing ako ay inuutusan ni

Dr. Virgilio de los Santos na bibili ng


mga prutas sa Binondo o ibang lugar
ang bilin niya sa akin ay ako lang daw
ang dapat bibili ng kanyang mga prutas
at'huwag iutos sa iba pati ang kanyang
mga anak dahil baka lasunin daw siya.'

The aforequoted facts would


show the estranged relationship of
Virgilio de los Santos with his son
Ernesto de los Santos dating back
2OO3 or even before. With this
seemingly irreconcilable estranged
relationship, which lasted up to the

time of death of Virgilio de los


Santos, would anybody in his right
mind plausibly conclude that
Ernesto de los Santos can get the
consent of Virgilio de los Santos to
the utilization and tapping of
electricity and water from BPTI and
diverting it to CTLL Building? And
would Virgilio de los Santos instruct

Josephine Pinera and Yolanda


Calanza, who are mere employees
of U.M. assigned then at BPTI, to
extend support to Ernesto de los
Santos to include his electrical and
water needs when Ernesto de los
Santos was then the manager and
operator of BPTI and these two
(Penera and Calanza) were his mere

subordinates who would Kow-tow


38

to whatever he (Ernesto) wants to


do there? It would be very funnY
a nd indeed rid icu lous for the

subordinates to be authorizing their


boss to tap electricity and water.
This is really against the everyday
experience of mankind and belongs
to the miraculous.
rthermore, when

Virgilio

de
los Santos got sick alreadY he
refused sine then to see Ernesto de
los Santos and Cynthia de los
Fu

Santos-Chan. The affidavit of Maria


Corazon Ramona L. de los Santos on
this score states:

'It

was only when my father was


sick that he refused to see them. He
said that he might die early because of
the stress of seeing my brother and
sister.' (Se Rollo, Affidavit of Ramona
Delos Santos, par. J)'."oe (Emphasis in
bold supplied)

IN FACT, in its comment to respondent's CA petition for


certiorari, UM had categorically asserted:
"Furthermore, it is extant from the
affidavits executed by Electa D. Arevalo
and Ma. Corazon Ramona Ll. Delos
Santos that the relationship of petitioner
and his deceased father had already
soured prior to the death of the latter.

The alleged consent given

by

petitioner's deceased father is therefore


highly dubious. In the natural order of
things, persons whose relationship is
estranged would necessarily refuse to
give consent or extend benefit to the
other. Interestingly, petitioner had failed

to refute, hence deemed to


admitted such fact."6e

t't
t"'

At

1lp. (r-7, Annex

"ll"

hcrcof.

At pp. 22-23, Annex "S" Irercol.

39

have

IF AT ALL, FAR FROM BEING SETTLED AS THE COURT


OF APPEALS' IFORMER FOURTH DIVISION DIVISION OF
FIVE] MAJORITY HAD ERRONEOUSLY SUPPOSED IT TO BE,
WHETHER OR NOT DR. VIRGILIO HAD CONSENTED TO
RESPONDENT'S TAKING OF WATER AND ELECTRICITY, IS

CLEARLY

A HOTLY DISPUTED AND

FACTUAL ISSUE RESOLVABLE ONLY


TRIAL.

VIA

CONTESTED
FULL BLOWN

2. THE COURT OF APPEALS'


IFORMER FOURTH DIVISION
FIVE]
DIVISION OF
MA]ORITY'S SWEEPING
CONCLUSION THAT THE UM
BOARD HAD THEREBY
IMPLIEDLY AGREED

NCQUIESCED,

IS

OR

HIGHLY
INAPPROPRIATE AS THE TRIAL

COURT HAS NOT FACTUALLY


RULED THEREON YET.

The Court of Appeals' IFourth Division Division of

Fivel majority further asseverated in its Amended Decision:

"Virgilio, with the acquiescence of


the Board of Trustees of UM, gave his
consent to the petitioner to use BPTI's
electricity and water supply in 2007.

Thereafter, and until

the death of

Virgilio in 2008, the Board of Trustees of


UM did not object to or repudiate the
said act of Virgilio, In other words, the
Board did not put an end to this
arrangement wh ich cou ld g ive it
sufficient ground to file a criminal case
against the petitioner of the latter

continued to use that water suPPIY


despite the clear prohibition by the
Board of Trustees of the university. It
was only in 20tL, when petitioner and

Cynthia opposed the

Probate
proceedings of the estate of their father
initiated by their sister Ramon [sic] and
when there was already a serious
corporate squabble between and among
40

the members of the Board of Trustees of


UM that a complaint for qualified theft
was filed against the petitioner as We
note in this case.
If the Board of Trustees of UM trulY
believed that Virgilio had no authority to
give consent on its behalf, it could have
overturned and nullified his decision to
allow the petitioner to use the electricity
and water supply of its ProPertY in
Baguio City from its inception. The fact
that the Board of Trustees of UM did not
prevent the petitioner to continue to
openly use its electricity and water
supply during the lifetime of Virgilio, and

even immediately thereafter, clearly


manifests that it acquiesced to Virgllio's
giving of consent to the petitioner."T0

In its assailed Resolution dated 28


Court of Appeals' [Former Fourth Division
majority then merely repeated:

ust

"The Board of Trustees of UM could


have easily overruled and nullified Virgilio's
decision to allow the petitioner to use its
electricity and water supply in Baguio City.
The fact that the Board of Trustees of UM
did not prevent the petitioner to continue
to openly use its electricity and water

supply during the lifetime of Virgilio, and


even immediately thereafter lasting for four
years, clearly manifests that it acquiesced

to Virgilio's giving of consent to the


petitioner. It was only after a serious

family/corporate squabble that happened


between and among the corporate directors
that the criminal case was filed against
petitioner.

It is

well-entrenched

that if

corporation knowingly permits its officert or


any other agent, to perform acts within the
scope of an apparent authority, holding him
out to the public as possessing power to do
those acts, the corporation will, as against
'" At 1r1r. 8-9, Anrrcx "A"

hercou

41

the
Division of Fivel

Aug

2OL5

any person who has dealt in good faith with


the corporation through such agent, be
estopped from denying such authority,

Apparent authoritY is derived not


merely from practice. Its existence may be

ascertained through 1) the general manner

in which the corporation holds out an

officer or agent as having the power to act,


or in other words, the apparent authority to
act in general, with which it clothes him; or
2) the acquiescence in his acts of a
particular nature, with actual or
constructive knowledge thereof, within or
beyond the scope of his ordinary powers.
Virgilio's apparent authority to juggle the
funds of UM with his own funds is clearly

demonstrated

bY UM's own

attached

evidence, to wit:

"They failed to appreciate the fact

that it was even mY father who


shouldered his grandchildren's

expense. This was evidenced bY a


certification issued by the President
and Chief of Academic Officer, copy of
which is attached hereto as Annex "8"

attesting that mY brother's second

mistress has been receiving monthly


allowance from the University in the

amount of Nine Thousand

Eight

Hundred Twenty Five Pesos. xxx"

By giving Virgilio an

aPParent
Trustees cannot

authority, UM's Board of


now deny and repudiate the legal effect of
Virgilio's consent given to the petitioner to
use the electricity and water supply of
BPTI."71

Again, the Court of Appeals' IFormer Fourth Division


Division of Fivel majority had accepted hook, line and sinker
respondent's allegations in his CA certiorari petition and
motion for reconsideration. IT TREATED, ALBEIT
UNPRoCEDURALLY, RESPONDENT',S ALLEGATTONS AS
UNDISPUTED GOSPEL TRUTHS.

'' At pp- (r-7, Anrrcx "A-1"

hclcof'.

42

SUCH ALLEGATIONS WERE

HOWEVER
CATEGORICALLY CONTRADICTED BY UM. PER THE
SUFFICIENT DOCUMENTARY AND CONTROVERTING

AFFIDAVIT EVIDENCE SUBMITTED BY UM DURING

PRELIMINARY INVESTIGATTON, PLUS RESPONDENT'S


OWN CONCLUSIVE ADMISSIONS IN HIS AFFIDAVIT,
IT IS WELL ESTABLISHED THAT:

(i)

RESPONDENT HAD TAKEN WATER AND


ELECTRICITY FROM UM'S BPTI TO HIS
CTLL BUILDING;

(ii) THrs TAKTNG WAS WTTHOUT THE


CONSENT OF THE UM BOARD OF
TRUSTEES, AS IN FACT, THEY HAD NO
KNOWLEDGE NOR HAD ACQUTESCED TO
RESPONDENT,S TAKING; AND

(iii) RESPoNDENT WAS THE GENERAL


MANAGER OF UM'S BPTI AND
oFFrCER/STOCKHOLDER OF UM
TIME OF SAID TAKING,

AT

THE

THESE sHoULD HAVE BEEN ENOUGH VIS-A-VIS THE


DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE
OF WARRANT OF ARREST AGAINST RESPONDENT FOR
QUALIFIED THEFT.

WORSE,

the Court of Appeals' IFormer Fourth Division

Division of Fivel majority's factual findings are even bereft


of any factual and legal bases. It bears stressing that:

1) THE UM BOARD OF TRUSTEES HAD


DISCOVERED RESPONDENT SURREPTITIOUS TAKING
ONLY SOMETIME IN JUNE aOIL, FOR WHICH THEY
IMMEDIATELY RESOLVED TO INITIATE A QUALIFIED
THEFT COMPLAINT AGAINST RESPONDENT IN JULY
20LL72.

2)

RESPONDENT WAS ABLE TO CONCEAL THrS


ILLEGAL TAKING AND THEFT OF WATER AND
ELECTRICITY AS HE WAS THE GENERAL MANAGER OF
UM'S BPTI WHEN THE SUBJECT ILLEGAL WATER AND
"l,lcasc scc thc Ai'lirlavits o1'UM's incurnbcnt Plcsiclcnt Dr. Enrily D. Dc Lcon antl Policar?io M. Ltcsa, antl UM's
Cor'ltolntc Sccrctary Atty. Diosdado G. Madlirl's Ccrtitication, attachctl as Atrttcxcs to UM's Cotnplaint, Annex "B"

'lrcrco1.

43

ELECTRICAL CONNECTIONS WERE TAPPED FROM UM'S


BPTI TO RESPONDENT'S CTLL BUILDING IN 2OO7
UNTIL RESPONDENT WAS REMOVED AS SUCH ON 15
JUNE 2O11.

FAR FROM BErNG *OPENLY" AS THE COURT


oF APPEALS', [FOURTH DTVTSTON DIVTSTON OF
FIVEI MAJORITY HAD SPECIOUSLY CHARACTERIZED
RESPONDENT'S TAKING, THE PICTURES OF THE

3)

SUBJECT ILLEGAL WATER AND ELECTRIC


CONNECTIONS WOULD SHOW THAT THE SAME WERE
CONSPICUOUSLY HIDDEN FROM THE PUBLIC,
INCLUDING BPTI'S EMPLOYEES, TO AVOID
DETECTION.T3

Apart from being PRoCEDURALLY INAPPROPRIATE,


the Court of Appeals' IFormer Fourth Division Division of
Fivel majority's factual findings even ahead of trial that the
UM Board of Trustees had impliedly agreed or acquiesced to
respondent's subject taking, is BELIED BY THE RECORDS.

3.

CONTRARY TO THE COURT OF

APPEALS' IFORMER

FOURTH

- DIVISION OF FIVEI
MAJORITY'S SPECIOUS
RES PON DENT'S
TH EORY,
ALLEGATIONS ON DR.
DTVISION

VIRGILIO'S ALLEGED CONSENT


AND THE UM BOARD'S IMPLIED
ACQUIESCENCE ARE HIGHLY
DISPUTED FACTUAL MATTERS

THAT CAN

ON

LY

BE

VENTILATED AND RESOLVED


I

N A

FU

LL

BLOWN TRIAL

BEFORE THE TRIAL COURT.

A FORTIORI, contrary to the Court of Appeals' [Former


Fourth Division Division of Fivel majority's sweeping
conclusion, the alleged consent of Dr. Virgilio to
respondent's taking and the correlative UM Board of
Trustees' purported implied acquiescence therefor, are

highly disputed factual matters that can only be


ventilated and resolved in a full blown trial before the
7r

l'lcasc scc Ar.rncxcs "5","5-A" and ",5-8", UM's DO.l Cottrnrcttt, Atrncx ".1" hcrcofl

44

I Former
trial court. DefinitelY, the Court of l\ppeals
Fourth Division Division of Fivel cannot put finis to
such controversial factual issues on a mere petition
for certiorari,It is contrary to the existing procedural

rules and settled jurisPrudence'

Rightly so, in its order dated 07 December 20!2, the


RTC-Baguio City, Branch 60 had concluded:

"xxx There are two kinds of


determination of Probable cause;
executive and judicial. In the case at
bar, probable cause against the accused

has alreadY been determined under


both instances. The contentions of
the accused in his Present motion
are evidentiary in nature' The same
are better aPpreciated in a fullblown trial or in a more appropriate

motion. The Presence or absence of

the elements of the crime

is

evidentiary in nature and is matter


of defense that may be Passed uPon
on a full-blown trial on the
merits ."'o (Emphasis in bold supplied)

Also, in its Decision dated 30 July 20L3, the Court of

Appeals [special Tenth Division] had correctly ruled:

"xxx With Ernesto's admission, the


Court agrees that it is probable that the

crime of qualified theft has

been

committed and that Ernesto is probably


guilty thereof. To reiterate, We are not

here concerned with the finding as


to whether all the elements of

have been
sufficiently proven to warrant a
conviction, because to require the
q ua

lified

theft

same would alreadY be beYond the


scope of the prosecutor and the trial
court's task of determining probable
cause, as these are matters which

7'l

At

1r.

2, Anncx "Q" hcrcof'.

45

are properly addressed inafull


blown trial.Ts

XXX

XXX,,

XXX

(Emphasis in bold suPPlied)


4.

AS A

MATTER

OF

PROBABLE
BETWEEN
DEFENSIVE
RESPON
CLAIM VERSUS UM'S CONTRA,

CAUSE, AS
DENT'S

THE TRIAL COURTS' FINDING


OF PROBABLE CAUSE MUST
PREVAIL.

Settled is the rule that in determining the existence of


probable cause, certainty of guilt is not required ' It is
sufficient that the pieces of evidence as presented would
excite a reasonable belief that the crime charged is
committed and that the respondent is probably guilty
thereof. In Metropolitan Bank & Trust Company vs.
Gonzal@s'6, this Honorable Court thus ruled:
Probable cause is a reasonable
ground of presumption that a matter is, or
may b, well founded on such a state of
facts in the mind of the prosecutor as
would lead a person of ordinary caution
and prudence to believe, or entertain an
honest or strong suspicion, that a thing is
so. The term does not mean "actual or

"x x x

positive cause" nor does it imPort


absolute certainty. It is merely based

on opinion and reasonable belief. Thus,


a finding of probable cause does not

require an inquiry whether there is

sufficient evidence to Procure


conviction. It is enough that it is
believed that the act or omission
complained of constitutes the offense
charged," (Emphasis in bold supplied)

As a matter of probable cause, as

between
respondent's defensive claim versus UM's contra, the RTC TsAt
1-,.

I l, Anncx

"V"

hercof.

7t'G.R. No. ltlOl(r-5. 07 April 2009; 584 SCRA


April 1993;221 SCRA 149,360.

(r3

l, (r40-(r4l
46

citing Pilupil vs. Sundigonbnvrrr, G.R. No.

l0l97ti'

07

Baguio City, Branch


m ust preva il

7 and 60's finding of probable cause

As eloquently pointed out by CA Justice Marlene


Gonzales-Sison in her dissenting opinion to the assailed
Amended Petition:

*I

must emPhasize that


PETITIONER ACTUALLY ADMITTED
THAT WHILE SERVING AS AN

OFFICER OF U.M. AND MANAGER


AND OPERATOR OF BPTI, HE
CAUSED THE TAPPING OF BPTI'S
WATER AND ELECTRICITY TO BE
USED IN THE CONSTRUCTION OF
HIS BUILDING. HE I\LSO ADMITTED

THAT THIS WAS WITHOUT ANY


AUTHORIZATION FROM U.M.,S
BOARD OF TRUSTEES.
In my opinion, SUCH ADMISSION
MUST LEAD TO THE CONCLUSION
THAT PETITIONER PROBABLY
COMMITTED QUALIFIED THEFT. THE
ACTS DETAILED IN THE ADMISSION
COMPLETES ALL THE ELEMENTS OF
QUALIFIED THEFT, AND SUPPORTS
THE ALLEGATIONS OF THE PRIVATE
RESPON DENT. "

Petitioner's admission admits


the following: first, there is a taking

of personal property, that

is

electricity and waterl second, that

said personal property belonging to


another, U.M.: third, petitioner
tapped into those resources with
intent to gain, i.e., allow him to
avoid incurring costs for such water
a nd electricity, wh i le usi ng the

same; fourth, that there was no


consent by the owner, in this case,
private respondent U.M. acting
through its board of trustees, to the

taking; fifth, that petitioner


accomplished the deed without
resort to violence or force upon
47

th

ngs,

beca

use

a lleged

IY,

h is

tapping was with the Permission of


his late father; and sixth, that there

was grave abuse of discretion,


since, during the time that he
utilized BPTI's water and electricity,

he was occuPYing executive


positions in the dePrived ownercorporation, [J.M..
Petitioner qualifies his admission

by his defense that his late father


permitted him to taP into BPTL He
presents witnesses which may
corroborate the grant of authority.
HOWEVER, AT THIS STAGE OF THE

MUST BE
PROCEEDTNGS, rr
RECALLED, rS oNLY CONCERNED
WITH THE DETERMINATION OF

IT HAS ALREADY
BEEN HELD THAT DURING THIS

PROBABLE CAUSE.

IT IS INAPPROPRIATE TO
RULE ON THE CREDIBILITY OF
STATEMENTS COMING FROM THE
ACCUSED AND HIS WITNESSES,
WHICH APPROPRIATELY LIES
STATE,

WITHIN THE PROVINCE OF TRIAL


PROPER. MOREOEVER, EVEN IF

THESE WITNESSES ARE CREDIBLE,


TH

HYPOTH

ETICAL TRUTH

OF

THEIR STATEMENTS WOULD STILL


NOT CHANGE THE FACT THI\T U.M.,
AS A CORPORATE ENTITY/ NEVER

CONSENTED TO ALLOW PETITIONER


TO TAP INTO BPTI'S RESOURCES. IT
IS BASIS THAT A CORPORATION
HAS A PERSONALITY SEPARATE
AND DISTINCT FROM ITS OFFICERS
AND STOCKHOLDERS.

Petitioner buttresses his defense by


alleging that private respondent U.M. is

actually a closely-held corporation run


by his family, such that it can be bound
by the actions of his later, which is
considered the head of the familY.

Petitioner likewise laments that the


48

prosecution never even reviewed the


records of private resPondent, its
history, and its unusual arrangement to
remove any doubt that it was a close
corporation.

Again, with due resPect

majority, I

find THAT

to

the

THESE

DEFENSES CANNOT BE VALIDATED


AT THrS STATE. ONCE MORE, THEY

ARE ALREADY EVIDENTIARY IN


NATURE; SUCH STATEMENTS

REQUIRE THE PRESENTATION OF


WITNESSES WHO MAY TESTIFY ON
HOW U.M. OPERATES, AND REQUIRE
AS WELL THE ASSESSMENT OF
DOCUMENTARY EVIDENCE ON ITS

NATURE AS A

CORPORATION.

EVIDENTIARY MATTERS MUST BE


PRESENTED AND HEARD DURING

TRIAL.

THE ESSENTIAL DIFFERENCE


OF PROCEEDINGS TO DETERMINE
PROBABLE CAUSE

AND

TRIAL

PROPER, TO MY MIND, SHOULD


ALSO BAR US FROM DETERMINING

BASED ON EVIDENCE THAT


PETITIONER HAD NO INTENT TO
STEAL (GIVEN HIS FATHER'S
PERMTSSTON) AND THI\T HrS
FATHER WAS EXTRAORDINARY
GENEROUS TO HIS CHILDREN.
UNFORTUNATELY, THESE DEFENSES

REST ON

CONSIDERATION OF

FACTUAL MI\TTERS AND THE


TESTIMONIES OF WITNESSES,
WHICH AGAIN ARE ALL PROPER

FOR TRIAL. n77 TEmphasis in capital and


bold supplied)

This was amply supported by CA Justice Manuel M.


Barrios in his separate dissenting opinion to the assailed
Amended Decision elucidating:
7'At

1r1r.

9-

l l, CA .lustioc Conzalcs-Sison's Disscrrtirrg Opinion. Anrrcx "A" hclcol

49

*It is my view that

respondent

judge did not act arbitrarily in finding


the existence of probable cause since it
is conceded fact that petitioner - while
an officer of U.M. and manager/operator

of BPTI

tapped and utilized BpTI's

water and electricity for the construction

of his own building and that

he

admittedly gained material benefit

therefrom. Indubitably, the elements of


Qualified Theft can be deduced from
these admitted facts, and certainly, to
find the existence of probable based
thereon cannot be considered abuse of
discretiofl, ffiuch less, grave.

THE DEFENSE OF PETITIONER

THAT HE ACTED WITH THE


CONFORMITY OF HIS LATE FATHER
WHO WAS THEN MAJORITY
SHAREHOLDER OF COMPLAINANT
CORPORATION IS A DISPUTED

FACT, AND RESPONDENT JUDGE


WOULD NOT YET BE IN A POSITION
TO CONSIDER THE SAM E,"78
(Emphasis in capital and bold supplied)

RE: THE COURT OF

APPEALS'

IFoRMER FOURTH DTVTSTON


DIVISION
OF
FIVE]

MAJORTTY'S

ON

CONCLUSIONS
IMPLIED AUTHORITY,

BONA FIDE BELIEF OR GOOD

FATTH, l\ND THE ABSENCE OF


THE ELEMENT OF INTENT TO

GAIN THAT WERE USED

OVERTURN THE

FINDING

COURTS'

TRIAL

PROBABLE CAUSE,

INAPPROPRIATE IN

TO

OF
ARE
THE

CERTTORART PETITION.

THE COURT OF APPEALS'IFORMER


FOURTH DIVISION _ DIVISION OF FIVE]

78

At p. 2, CA.lusticc Barrios ' Disscntiug Opinion, Anncx "A" hcrcol.

50

EXCULPATING
CONCLUSIONS SOLELY UPHOLDING
DR'
RESPONDENT'S DEFENSES
VIRGILIO'S PURPORTED CONSENT TO
THE TAKING, BONA FIDE BELIEF OR
GOOD FAITH, AND LACK OF INTENT TO

MAJORITY'S

OF

GAIN, ARE HIGHLY INAPPROPRIATE IN

CERTIORARI
CONSIDERING THAT:

PETITION,

Decision, the Court of


Division of Five] majority further

In the first assailed Amended

Appeals' IFourth Division opined:


t'The third element, i.e., that the
said taking be done with intenf to gain

is likewise absent in this case. Even


assuming arguendo that Virgilio was not
dulY authorized bY the Board of

Trustees of UM to give its consent to the


petitioner and the latter erred when he
solely relied on his father's consent
without further securing the authority
from the real owner of the electricity
and water suPP|Y will not make him
culpable of the crime of qualified theft
because he was acting with a color of
authority or a semblance of right to do
such act."7e

The Court of Appeals' [Former Fourth-Division of Five]


majority repeated in the second assailed Resolution dated
28 August 2015 the foregoing erroneous thesis, saying:

"For a charge of crime to ProsPer,


the accused must have been shown to
have acted with a genuine criminal
intent. If he was acting under a bona
fide belief that he has a claim or title to
the thing allegedly stolen, the criminal
intent is missing.
Petitioner's claim of right on the
basis of the permission given by his
7"

At p.

10, Anncx

"A"

hcrcol'.

5t

father negates criminal intent on his


part. He openly used BPTI's electricity
and water supply under the bona fide
belief that he was allowed and
authorized bY his father to use the

same, His father owned majority of the


shares of stocks of UM and was at that
time its President and Chairman of the
Board. He practically controlled and ran
the business affairs of the university' As
explained above, the Board of Trustees
had given Virgilio an apparent authority
to do so as shown bY the fact that it
allowed Virgilio to treat the finances of
UM as if theY were his own Personal
property. It did not revoke this authority

while Virgilio was still alive or even


immediately thereafter. The allegation
therefore that Petitioner had the
intention to deprive UM of its personal
property is negated by the fact that he
relied in good faith on his father's
authority

to use BPTI's electricity and

water suPPlY".Bo
WE BEG TO DISAGREE.

The court of Appeals' IFormer Fourth Division


Division of Fivel majority's exculpating conclusions solely

upholding responden['s defenses of Dr. Virgilio's purported


consent [o the taking, bona fide belief or good faith, and lack
of intent to gain are inappropriate in a certiorari petition,
considering that:

5.

THE OFFICE OF CERTIORARI IS

MERELY TO

DETERMINE

WHETHER OR NOT THE TRIAL

FINDING OF
PROBABLE CAUSE HAS
FACTUAL AND LEGAL BASES.
IT IS NOT WHETHER
RESPONDENT'S CLAIM VERSUS
THAT OF UM IS CORRECT,
COURT,S

t" At pp. 7-8, Arrncx "A-1" hercol.

52

WHICH CAN ONLY BE


RESOLVED BY THE TRIAL
COURT IN A FULL BLOWN
TRIAL.

to
It is well settled that the office of certiorari is merely
gravely
determine whether the court, body or tribunal has
of
abused its discretion, amounting to lack or in excess

jurisdiction, in issuing its assailed order or resolution'

Aotlv, in Brito vs, Office of the Deputy ombudsman


for tiiiiur, this Honorable Court had categorically ruled:

"In cert iorari proceedings under


Rule 65 of the Rules of Court, the
inquirY is limited essentiallY to

wlrether or not the Public


respondent acted without or in
excess of its jurisdiction or with
grave abuse of discretion'

A tribunal, board or officer acts


without jurisdiction if it/ he does not
have the legal Power to determine
the case. There is excess of
jurisdiction where, being clothed
with the Power to determine the
case, the tribunal, board or officer

overstePs its/his authoritY as


determined bY law. And there is

grave abuse of discretion where the

iribunal, board or officer acts in a


capricious, whimsical, arbitrary or
desPotic manner in the exercise of
his judgment as to be said to be
equivalent to lack of jurisdiction"'
(EmPhasis in bold suPPlied)

In the Same vein, in Chan vS, Cottrt of Appeatsu', this


Honorable Court had amply elucidated:

"x x x in an action for certiorari, the

primordial task of the Court is to

ascertain whether the lower court as a


8'

G.R. No. 113512.10 July 2007; 527 scRA 224,229.


*t G.R. No. 15s922.28 Apri12016;451 scRA 502,515-516.

53

quasi-iudicial body acted with grave


to
abuse of discretion amountingthe
excess or lack of jurisdiction in
exercise of its judgment, such that the

act was done in a caPricious'


whimsical, arbitrarY or desPotic
manner. In a petition for certiorari' the
jurisdiction oi the appellate court is
narrow in scoPe' It is limited to
resolvingonlyerrorsofjurisdiction.It

isnottostrayatwillandresolvequestions
or issues beyond its competence, such as
an error of judgment which is defined as

oneinwhichthecourtorquasi-judicial
body may commit in the exercise of its

jurisdiction.Anerrorofjurisdictionisone
wheretheactscomplainedofWereissued
withoutorinexcessofjurisdiction.Thereis

excessofjurisdictionwherethecourtor
quasi-judicial body, being clothed with the
po*eito determine the case, oversteps its
authority as declared by Iaw"' (Emphasis in
bold suPPlied)

Thus, the crux of respondent's CA certiorari petition was


merely to determine whether or not the RTC - Baguio City,
Branch 7 and 60 gravely abused their discretion in finding
probable cause against accused-respondent for Qualified
Theft. NOTHING MORE NOTHING LESS. It behooves aR
inquiry only as to the sufficiency of the factual and legal
bases of the trial courts'finding of probable cause.

clearly,

it was beyond the ambit of respondent's cA

certiorari petition to determine whether his claim versus that


of UM is correct, as to call the application of weight of
evidence and credibility of witness. If at all, this matter can
only be addressed by the trial court in a full blown trial'

6.

WITHOUT ANY ABUSE, LET


ALONE GRAVE, THE TRIAL
FINDING
PROBABLE CAUSE IS

OF

COURTS'

GROUNDED

UPON

WELL
THE

FOLLOWING:

54

A.

AS

CONCLUSIVELY
ADMITTED BY HIM IN HIS
AFFIDAVIT,
COUNTER.
RESPONDENT HAD CAUSED

TAPPING OF AN D
DIVERTED WATER AND
ELECTRICITY FROM UM'S

TH

BPTI TO HIS

CTLL

BUILDING,
RESPONDENT HAD TAKEN

B.

WATER AND ELECTRICITY


FROM UM'S BPTI WITHOUT
THE CONSENT OF THE UM
BOARD.

RESPONDENT'S DEFENSE

C.

THAT HE TOOK

WATER
AND ELECTRICITY WITH
HIS
CONSENT
TH
*DECEASED" FATHER DR.
FOREVER
VIRGILIO,
BARRED.

OF

IS

D. RESPONDENT'S

DEFENSE
INTENT TO

OF LACK OF
STEAL IS EVIDENTIARY

IN
CHARACTER AND SHOULD
BETTER VENTILATED

BE

AND HEARD IN A

FULL

BLOWN TRIAL.

In order that a person may be held liable for Qualified

Theft, the following elements must concur:

a. There must be a taking of personal property;


b. That the said property belongs to another;
c. That the taking be done with intent to gain;
d. That it be done without the owner's consent;
e. That it be accomplished without the use of violence
or intimidation against persons, nor of force upon

f.
83

Pcople

vs.

things; and
o?
That it be done with grave abuse of confidence.*'

I'uig, G.R. Nos. 173(t54-765.28 Augtrst 2008; 561 SCRA 564' lt70'
55

HERE,
present:

the above elements of Qualified Theft are

all

As to the first requisite, with respect to u.u element


tacsa emphatically affirmed and
of .,ta@of
confirmed that respondent instructed him sometime in July
bail cutter,
2OO7 to use the electric current of BPTI for the
bender, and for welding because at that time respondent
his GTTL Building. Lacsa also affirmed and
was constructing-*t.,"n
the first floor of CTTL building was
confirmed that
finished, ,"rpondent ordered him to make an electrical
to the basement .of cTI!
connection coming from BPTI going
-

[u

after making the

electrical
connection, the place of work was transferred to the
basement of the bfff- building and there the ball cutting,

Building which

obeyed;

bending and welding using the electric current from BPTI


was do-ne; he p"ttoially knew this because he (Lacsa) also
worked there for respondent as operator of the ball cutter,
bender and welder for some time.

Furthermore, Lacsa, the eyewitness to the unlawful


taking done by respondent also affirmed and confirmed in
his ,irorn affidavit that respondent also instructed him to
connect the water supply of CTTL Building to the water
installation of BprI sometime in February 2009 purposely to
make supply of water to the second floor of GTLL Building
*t.'i.t,, respondent then intended to open for would-be
tourists or checkers on 14 February 2009 (valentine's Day);
when Lacsa left the employ of respondent in July 2009, such
water connection was still in operational and existing; when
he (Lacsa) was instructed by Dr. De Leon, President of U'M',
to check the water connection sometime in June 20LL, he
still saw and found out that the water connection is still
there, however, the electric connection was already cut, but
nonetheless the electric wire which was then used to
connect the electric current with BPTI is still there.

Realizing that he cannot effectively rebut the


statements of Lacsa, respondent even conclusively
admitted in his counter-Affidavit that he actually took
electric current and water from BPTI and used it in the
construction of his CTTL Building.

56

the

foregoing evidence and conclusive


of
admission more than sufficientlY established the existence
the element of "unlawful taking"'

ClearlY,

with resPect to

the
to
element tnat ff,e saio "personal property be.longs
another", witness Lacsa affirmed and confirmed in his Sworn
affidavit that the electric current and water were taken from
BPTI which in turn is owned by UM. This was duly admitted

there is also
by respondent in his counter-Affidavit. so,probable
cause
more than sufficient basis of the existence of
on this score.

, with resPect to the element


that \he dt ing be donu with intent to gain", petitioner
benefited from the electric current and water as he used
them in constructing his GTLL Building' This is affirmed and
confirmed likewise nv Lacsa in his sworn affidavit and duly

admitted by respondent in his counter-Affidavit. By "gain" is


meant not only the acquisition of a thing useful to the
putposes of life but also the benefit which in any other sense

*rv be derived or

expected from

the act which

is

performed.sa

, with resPect to

the
etement "without the owner's consent", the sworn affidavit
of Dr. De Leon attested to the fact that the Board of

Trustees, which is the corporate governing body of uM


pursuant to Sec. 23 of the Corporation Code, did not consent
and in fact does not know the said illegal connections and so
said installations were not legal up to the time they were
disconnected. Furthermore, the Certification of Atty'
Diosdado G. Madrid, a member of the Board of Trustees and
corporate secretary of the UM, attested to the fact that
since 11 August 2006 to date, records of the meetings of the
UM Board has shown no passage of any resolution
authorizing respondent, or CTLL Building Dely's Inn, to
connect the water and electrical connections of the BPTI to
respondent's CTLL Building.

requisite, with respect to the element

fifth
*it
be accomplished without the use
that
As to the

s4

of violence or

v.r. Ferntrnrlez.33 O'G


Arrtonio Grcgorio, Furrdanrcntals olCriminal Law Rcvicw, 1997 Ed., p. 759, citing Pcoplc

9Ii5.

51

the
intimidation against persons, nor force upon thing.s",case
the
documentary #O testimonial evidence presented in persons
negated the use of violence of intimidation against
nor force upon things in the taking of the electric current
a

nd water.

ite, with resPect to the element

that -ffiffine with gtur";b-*te of confidence", respondent


with
had duly admitted in tris Complaint for Forcible Entry
:Lt^
!L- ^
the
with
filed
540
13
No.
case
civil
as
ou rug"r, docketed
of the
Municipal Trial Court of Baguio City !!ut at the trial
subjecl incident he was the General Manager and Operator
judicial
of BPTI owned by UM. His admission is considered a court'
in
admission sin.u th" complaint was verified and filed

ThefactthatrespondentWaSmanagingBPTI.isalso
bolstered by the Minutes of the Board of Trustees' Regular
the
Meeting held on 15 lune 2011 wherein it is stated that

uM Board of Trustees passed a resolutionof removing


BPTI'
iesponOent from the management and operation

As to the seventh requisite, with respect to the


of respondent's unlawful
damage susta@ion
takin{ with grave abuse of confidence of the water and

electricity, th6 electric and water consumptions of the BPTI


in 2006 and 2011 when the illegal connections were not yet
made or were already cut when compared vis-ir-vis the
water and electric consumptions of BPTI from 2007 up to
2010 would show the actual loss incurred by the UM by
reason of said illegal and unauthorized connections. From
the electric and water consumptions of BPTI for the period
and
2OO7 to 2010 should be deducted the regular electric
water consumptions every year of BPTI and the difference is
the amount of loss stolen by respondent from UM every
year. This amount must be multiplied by the number of
years the illegal connections were existing, which amounted
to Php3 Million, more or less.
Thus, in its order dated 01 February 2072, the RTCBaguio City, Branch 7 well founded probable cause against
respondent for Qualified Theft, explaining:
"Probable cause is the existence of
such facts and circumstances as would
excite the belief in a reasonable mind

that a crime has been committed and


58

that the respondent is probably guilty


thereofandshouldbeheldfortrial.In

the present case, the Court agrees with

the
and affirms the findings of City
investigating prosecutor, Assistant
Prosecltor Rolando T' Vergara' that

probable cause indeed exists for the


indictment of the accused for the crime
of qualified theft considering that he
himself admitted that he cause the

tapping of and diverted electricity


and *lte. from the Benguet Pines
Tourist Inn (BPTI) which is owned
by the University of Manila- (UM) to
the CTLL building which he owns
without the consent of aPProval of
theBoardofUM.Liketheinvestigating
prosecutor, the Court finds that the
defense relied uPon bY the accused'
that is, that the taPPing anq
diversion was with the consent of
his late father, Fr' Virgilio D' Delos
Santos is barred and Prohibited
under the "Dead Man's Statute"
under Section 23, Rule 13O of the

Rules of Court. Dr' Delos Santos


could not possihly confirm the claim
of the self-serving allegation of the
accuse6.z8s (Emphasis in bold supplied)

on the other hand, in its order dated 07 December


2012, the RTC-Baguio city, Branch 60 duly affirmed the

above finding of probable cause, ratiocinating:

"The issue raised by the accused in

his Partial Motion for

Reconsideration

must first be resolved considering that


the same involves the question on
whether or not probable cause exists to
indict him of the crime charged in the
information. It must be pointed out that

the accused is charged with the crime


based on the existence of a probable
cause, Probable cause is defined as a

8s

At

1r.

2, Atrttcx

"L"

hct'ctll'.

59

reasonable ground of presumption that


a matter is, or may be, well-founded in

such a state of mind as would lead

person of ordinary caution and prudence


or
to believe or entertain an honest
strong suspicion that a thing is so' It is
also defined as such facts as are

sufficienttoengenderawell-founded
beliefthatacrimehasbeencommitted
and that respondents are probablyguilty thereof. thete are two kinds of
determination of Probable cause;
executive and judicial' In the case
cause against the
at bar, Probable
-

alreadY been
determined under both instances'
The contentions of the accused in
his present motion are evidentiary
in nature. The same are better
appreciated in a full-blown trial or
in a more aPpropriate motion' The
Presence or absence of the

accused

has

elementsofthecrimeisevidentiary
in nature and is matter of defense
that maY be Passed uPon on a full-

L'ia*n tria| on the

merits'86"

(EmPhasis in bold suPPlied)

FROM THE FOREGOING,

it is daylight clear that the trial

courts' finding or probable cause had sufficient and strong


legal and factual bases, to wit:

A.AscoNcLUsIVELYADMITTEDBYHIMINHIS
HAD
COUNTER. AFFIDAVITBT, RESPONDENT

cAUsEDTHETI\PPINGoFANDDIVERTED

WATERANDELECTRICITYFRoMUM,SBPTI
TO HIS CTTL BUILDING.

B.PERRECORDSTRESPONDENTHADTOOK

WATERANDELECTRICITYFRoMUM,SBPTI

WITHoUTTHEcoNsENToFTHEUMBoARD
OF TRUSTEESBB.

At 1rp. 2, Attncx "Q" lrclcof.


Anncx "C" hclcol.
B* pl"u*" scc Ccrtillcatiorr datcrl 07 JLrly 20ll issucd try UM's corporatc Scct'ctnt'y Atty' Diostlntlo
as Attncx to UM's Crinrinnl Conllllaint, Anttcx "B" ltcl'col"

8t'

*7

60

Madritl' [ltached

c.

THAT HE

TOOK
WATER AND ELECTRICITY WITH THE
coNsENT OF HrS FATHER DR. VrRGrLro, rs
PER THE
BARRED AND PROHIBITED
*DEI\D MAN'S STATUTE''
RATIONALE OF THE

RESPONDENT'S DEFENSE

RULE.

D.

ALSO, RESPONDENT',S DEFENSE OF LACK OF


INTENT TO STEAL IS EVIDENTIARY IN
CHARACTER AND SHOULD BE BETTER
APPRECIATED IN A FULL BLOWN TRIAL'

7. IF AT ALL, THE

HOTLY

CONTESTED FACTUAL ISSUES

OF DR. VIRGILIO'S CONSENT


TO THE TAKING, GOOD FAITH
AND LACK OF INTENT TO GAIN

ARE

IN

DEED MATTERS OF

DEFENSE THAT OUGHT

RESOLVED

BY TH E

TO

BE

TRIAL

COURT IN THE TRIAL PROPER.

To reiterate at the expense of broken record, the hotly

contested factual issues of Dr. Virgilio's consent to


respondent's taking, the UM Board of Trustees' implied
acquiescence thereior, and respondent's bona fide belief or
good faith vis-ir-vis that he took water and electricity with
the consent of the actual owner thereof, are truly matters of
defense that ought to be resolved by the trial court at the
first instance, not by the Court of Appeals on a mere
certiorari petition.

Specifically, respondent's defense of bona fide belief or


good iaith does not overcome the existence of probable
iarr" of the crime of Qualified Theft against him. Good faith
is a matter of defense which is best ventilated in a full blown
trial before the trial court. As held by this Honorable Court in

Andres vs, Cuevasge:

dignum is
Petitioners'
ventilating before this Court the merits of

"Notatu

their defenses, The issue of whether

they acted in good

fa

ith is

best

determined, however, during the trial


proper. This is not the occasion for the full

8' G.R. No. 150t169.09 .lunc 200-5; 4(r0 SCRA 38, ,52-53.

61

and exhaustive display of their evidence'


The Presence or absence of the
elements of the crime is evidentiary in
nature and is a matter of defense that
may be passed upon after a full-blown
trial on the merits.
In fine, the validitY and merits of a
party's defense or accusation, as well
as admissibility of testimonies and
evidence, are better ventilated during

trial proper than at the preliminary


investigation level". (Emphasis in bold
suPPlied)

In fact, in the cases of US vS. Manluco, et al.eo and


Gaviola vs. Peopleer which were cited by the Court of
Appeals' IFourth Division Division of Five] majority in its
assailed Amended Decision, accused'claim of honest belief
or good faith was only weighed and ruled upon by the trial
court after a full blown trial. Evidently, this is not the
case here.

III

THE COURT OF APPEALS

ISPECIAL
CORRECTLY RULED

TENTH DIVISION]

IN ITS RESOLUTION DATED 30 JULY


2OL3 THAT RESPONDENT IS NOT
ENTITLED TO BAIL AS A MATTER OF
RIGHT SINCE:

1.

PER

HONORABLE
PEOPLE
COURT'S RULING
OF THE PHILIPPINES VS, HU
RUEY CHUN (G.R. NO. 158064.
JUNE 2005; 462 SCRA
OTHER
499,510-515)
ESTABLISHED
THE
] U RISPRU DENCE,
INSTANT CRIMINAL CHARGE

THIS

IN

30

AND

AGAINST RESPONDENT
QUALI

FIED

"" No. t (x)05. 09 Novcmtrcr


')r C.R.

I9I

TH

4; 2ll

EFT IN

I'}h

il

3(r I .

Nn. 163927.27 January 20t)6; 4ti0 SCRA 436

62

FOR
TH E

AMOUNT OF

PHP3,OOO,OOO.OO

IS A NON-BAILABLE
OFFENSE, AS THE PENALTY
TH EREFOR IS
RECLUSION
PER SE

PERPETUA PER ARTICLE 310 IN

RELATION

TO ARTICLE

309,

REVISED PENAL CODE.

ON THE FACTS, respondent was charged here for


having stolen water and electricity with grave abuse of

confidence in the amount of PhP 3,000,000.00 which, as per


Article 310 in relation to Article 309, Revised Penal Code is
punishable by reclusion perpetua. This, since the penalty for
theft under Art. 309 reads, in part:

"xxx 1. The penalty of prision mayor in its


minimum and medium periods, if the value

of the thing stolen is more than

|2,OOO

pesos but does not exceed 22,OOO pesos;

but if the value of the thing stolen

exceeds the latter amount, the penalty

shall be the maximum period of the


one prescribed in this paragraph, and
one year for each additional ten
thousand pesos, but the total of the
penalty which may be imposed shall
not exceed twenty years. In such cases,

and in connection with the

accessory

penalties which may be imposed and for


the purpose of the other provisions of this
Code, the penalty shall be term ed prision
mayor or reclusion temporal, as the case
may be; x x x (Emphasis in bold supplied)

Verily, since respondent stands charged with having


unlawfully took electricity and water in the staggering
amount of PhP3,000,000.00 the maximum penalty
prescribed thereof under Article 309 should first be applied,
which is imprisonment of reclusion temporal or twenty (20)

years. since respondent committed the same in grave abuse


of confidence as UM's then General Manager and operator of
its BPTI, he falls under the graver felony of eualified Theft,
which, under Article 310, imposes a specific penarty two
degrees higher than that applicable in theft. Accordingly,
under the table of penalties in Article 76, Revised penal

63

code, the penalty of reclusion perpetua at the very least


is imposable on respondent.

Aptly, in People of the Philippines vs. Cafialese2,


this Honorable Court had explicitly held that the penalty for
Qualified Theft under Article 310 of the Revised Penal Code,
taking into consideration the value of the property stolen, is
reclusion perpefua with the accessory penalty of death, with
no possibility of pardon before the lapse of 40 years.

Accordingly,

per Section 13", Article III,

L}BT
Philippine constitution, respondent is not entitled to bail as a
matter of right since he stand charged of an offense with
reclusion perpetua as imposable penalty.

Respondent nonetheless cited in his CA certiorari


petition the case of cenzon vs. Abad Sanfos to bolster his
position that he is entitled to bail as a matter of right.ea
Cenzon however is inapplicable and irrelevant in this case as
the crime involved therein was large-scale or syndicated
estafa under P.D. No. B1B, NOT Qualified Theft.

what is controlling then in this case involving the crime


of Qualified Theft of water and electricity in the amount of
Php3,000,000.00, is the case of People of the philippines
vs, Hu Ruey Chun.es There, this Honorable Court ruled
that since the imposable penalty for the crime charged
therein of QUALIFIED THEFT in the amount of p762,076.35
is reclusion perpetua, the accused-respondent was NOT
entitled to bail as a matter of right.

2. PER EXISTING DOJ'S BAIL


BOND GUIDE FOR QUALIFIED

THEFT, NO BAIL SHALL


RECOM M EN
SU BJ ECT

DED FOR

BE
TH E

CHARGE

OF

QUALIFIED THEFT SINCE THE


VALU
"'G.ll. No. l2(r3

E OF

19.

TH

PROPERTY

l2Ockrbcr l()9g:297 SCRA(r(r7,676-678.

'B

".Scction 13' AII llcrstlns, excellt those chargetl rvith oll'enses punishable 5y reclusiol
l)erl)ctuu lvhen evitlence of
gtlilt is strollg, shall, [rclbrc coltvictiotr, bc bailnblc by sul'l'icicnt surctics, or bc rclcascrl irn ic"ogsizalce as lray lre
Pfovi.tlctl by law. Thc riglrt to bail shall not bc intpairccl cvcn whcrr thc privilcgc ol tlrc writ .rf hntr"u. cerlus is
suspcncled. Ilxcossivc bail shall .ot bc
(Emphasis in bold supplicil)
'ct1uirctl".
"r I'ttlagt'a1rlt 173, pp. 4-5-41.l, rcsporrtlcnt'sPctition lil'Ccltiorali tlatccl l5 Fcbruary 2011, Anncx "R" lrcreof.
''' G.R. No.
l-s1t064. 30 .lunc 2005; 462SCRA 498, 5 l0-515.

64

STOLEN

IS

PHP3 MILLION,

MORE OR LESS,

Section
states:

L, President's Memorandum Order No. 177

"SECTION 1. No bail shall be recommended


for the crime of qualified theft where the

adequate value of the property stolen is


five hundred thousand (P500,000.00) and
above. "

The provision or text of Memorandum Order No. L77,

specifically is literally and categorically clear WTTHOUT ANY

QUALIFICATION OR CONDITION that no bail shall be


recommended for qualified theft where the value of the
stolen property is PhP500,000.00 and above. It means
what it says and it says what it means!!!

In

consequence, since respondent was charged for

Qualified Theft

of stolen water and electricity which

aggregate value is in the amount of PhP3,000,000.00, he is


therefore not entitled to bail as a matter of right.

IN FACT, in its fairly recent Memorandum Order No. 63,


series of 20L3, the office of the President revoked
Memorandum order No. 777, series 2005 and reiterates the
previous Dol Circular No. 29, series of 2005 mandating that
"pursuant to the provisions of existing laws, no bail shatt be
recommended for the offense of qualified theft, whether
consummated, frustrated or attempted, where the value of
the property is P222,000,00 or more."

In any event, whether under Memorandum Order No.

L77, Series of 2005 or DOJ Circular No. 29, Series of 2005,


the subject charge of Qualified Theft involving php3 Million,
more or less, is clearly a NON-BAILABLE OFFENSE.

PRAYER
the PEOPLE respectfully prays that this
Petition be GrvEN DUE couRsE, and after due
WHEREFORE,

proceedings, the court of Appeats' [Former Fourth Division Division of Fivel Amended Decision dated zt Novem ber
65

2014 and Resolution dated 28 August 2015 in CA -G.R. SP


No. L28625, be REVERSED AND SET ASIDE, and in lieu
thereof a new Decision be ISSUED REINSTATING AND
AFFIRMING IN TOTO the Court of Appeals' fspecial Tenth
Divisionl Decision dated 30 July 2013.
Other reliefs just and equitable are likewise prayed for.
Pasig City for the City of Manila, 12 October 2015.

MADRID DANAO & CARULLO


Counsel for Private Complainant UM
Suite 1609 16/F, Jollibee Plaza
F. Ortigas Jr. Road (ex-Emerald Avenue)
Ortigas Center, Pasig City 1605 / P.O. Box No. 13143
Tel. Nos. (02) 63t-7ss\ Q2) 706-33Ls

$,

By:

RAINI

MADRID

Lifetime IBP No. 053{3 / 05.'03-05 / Quezon City


MCLE Compliance No. IV - 0016867 / 04-15-2073 / Pasig City
/

1A,,,rar

ALVIN A. CARULLO
Roll No. 48458

PTR No. 03Bt}tz / Ot-07-15 / Pasig City


Lifetime IBP No. 03773 / 06-28-04 / RSM
MCLE Compliance No. IV - 0016869 / 04-15-2013 / Pasig City

Copy furnished:
COURT OF APPEALS (By Personal Service)
Ma. Orosa Street
Ermita, 1000 Manila
[CA-G.R, SP No. 128625]

OFFICE OF THE SOLICITOR GENERAL (By Personal Service)


(ASG BERNARD G, HERNANDEZ)
No. 134 Amorsolo Street
Legaspi Village, L299 Makati City

RTC-BAGUIO CITY, BRANCH 6O (By Registered Mail)


Hall of Justice Complex
Baguio City

RTC-BAGUIO CfTY, BRANCH 7 (By Registered Mail)


Hall of Justice Complex
Baguio City

RTC-BAGUIO CITY, BRANCH 5 (By Registered Mail)


Hall of Justice Complex
Baguio City

ATTY. FILIBON FABELA TACARD ON (By Registered Mail)


TACARDON AND PARTNERS
Counsel for Respondent

Unit 501, West Mansion Condominium


West Avenue cor. Zamboanga Street
LLO4 Quezon City,

ERNESTO L. DELOS SANTOS (By Registere:d Mail)


Respondent
108 Cenacle Drjve, Senville Subdivision
Tandang Sora, Quezon City

EXPLAT{ATION

(Re: $ervice through_Registered Mail)


In compliance with Section 11, Rule 13 of the 1997 Rules of
Civil Procedure, counsel respectfully manifests that service of the
foregoing Petition for Review on Certiorari was done by
registered mail, personal service not being practicable at the
present time, due to distance and unusually heavy volume of
pleadings which have to be filed by our office messengers.
/

Vtr,,rfr-

ALVIN A. CARULLO
AAC/jcb/UM 1.3928

67

VERIFICATION AND CERTIFICATION


OF NON.FORUM SHOPPING

I, DR. EMrLY D. DE LEON, of legal age and with office address

at 546 M.V. Delos santos street, sampaloc, Manila, after having been
duly sworn to in accordance with law, hereby depose and state that:

1. I

am the incumbent President of the University of Manila

("UM"), private complainant in the above case.

2,

For and on behalf of the UM per attached Secretary,s

Certificate and with the conformity of the Office of the Solicitor General
("osc"), I have caused the preparation and filing of the foregoing
Petition for Review on certiorari under Rule 4s with the supreme
Court.

3.

have read and understood the contents thereof and the

facts herein alleged are true and correct of my own

personal

knowledge and/or on authentic documents.

4.

To the best of my knowledge, no similar action

or
proceeding is pending in the Supreme court, the Court of Appeals or
different divisions thereof, or any other court, tribunal, or quasijudicial agency, except the originating criminal Case No. 32306-R,
entitled "People of The Philippines vs. Ernesto Delos santas", now
pending before RTC-Baguio city, Branch 5; and cA-G.R. sp No.
128625, entitled "Atty. Ernesto L. Delos santos vs. Regional Trial
Court of Baguio City, Branch 60 And Branch 7, and lJniversity of Manila
represented by Dr. Emily D. De Leon", court of Appeals-Manila
IFormer Fourth Division-Division Of Five].

5. Should it come to my knowledge that a similar action or


proceeding has been filed or is pending before the Supreme Court, the
court of Appeals, the different divisions thereof, or any other court,
tribunal, or quasi-judicial agency, I hereby undertake to notify the
court or tribunal taking cognizance of the above-entitled case of such
fact within five (5) days from receipt of such knowledge.
6.

Iam

executing this sworn statement in compliance with


Section 5, Rule 7 of the 7997 Rules of Civil Procedure
DR. EM

tu

at

No. ( f(//.
Paoe No. A{'
Doc.

B;;k

D. DE
Affiant

.-.

|.

,/l

N;:.-38

Series of 2015.

REPUBLIC OF THEi PHILIPPINES)

,,

,J n tr,
, /.{
. ,, ,l,_

)Ss'

SECRETARY'S CERTIFICATE

I, ATTY, DIOSDADO G. MADRID, of legal age, Filipino and with office

address at 546 M.V. Delos Santos Street, Sampaloc, Manila after having been first
sworn in accordance with law, do hereby certifyl

I am the duly elected and incumbent Corporate Secretary of the


University of Manila ("Corporation"), a corporation duly organized and existing
1.

under Philippine laws.

2.

As Corporate Secretary,

I am the custodian of the

records of the

Corporation, including the minutes of the meetings of its Board of Directors.

That at a Regular Meeting of the board of Trustees of the Corporation


3.
held on September 76,20L5, at which meeting a quorum was present and acting
throughout, the following resolutions were approved, among others:

"RESOLVED, that the Corporation, with the


endorsement of the OCP-Baguio City/DOJ and the
conformity of the Office of the Solicitor General, shall
appeal, via Petition for Review on Certiorari under Rule
45, with the Supreme Court the Court of Appeals'
IFourth Division - Division of Five] Amended Decision
dated 27 November 2Ol4 and Resolution dated 28
August 2015 in CA-G.R. SP No. 128625, entitled "Atty.
Ernesto L. Delos Santos vs. RTC'Baguio City, Branch 60
and 7, and University of Manila, represented by Dr.
Emily D. De Leon".
RESOLVED FURTHER, as it is hereby resolved,
that Dr. Emily D. De Leon, incumbent President of the
Corporation, be authorized, as she is authorized, to sign
for and on behalf of the Corporation, the Motion for
Extension of Time to File Petition for Review on
Certiorari under Rule 45, and the main Petition for
Review on Certiorari under Rule 45 and any and all
pleadings in the said case, and such other papers or
documents necessary/ incidental and/or proper in
respect thereto."

4.
The foregoing resolutions have not been altered, modified or revoked
and that the same are still in full force and effect.
5.

I am executing this Certificate for whatever legitimate

purpose/s it

may serve

IN WITNESS

@,",

WHEREOF.

have

rriAnliJil.A

hereunto

set my hand
I

ArrY. DrosDAD{o.

this

ror*rfl

CorpolqJe S{cretary

sEP23mw

AND SWORN to before me this _


September, 2015 at
,fl?YFftflffi=' , affiant exhibiting to me his Senior Citizen ID No. 24757899,

Issued on June 5, 2009.


Doc.

No.

/6q

l:ffiJI#r

l{t\ I lrFil

oa,

H?E

[t

(hi'i't'r:n

epublic of
tt

[.['re t] ['ritip6rinc,s

f, flil 0,44rrfflrrtrug {Sttrt

rli

r,,rm

:ir

lf

*.:

i)l- lTll-;

.,t :i (i[:t,i[:: i;:,\t.


l,i, r-.jt,rr-t,i'f r11G l . i)jiil ;li i.':1,

20t[ ocT

Octol:rer

-?

1,2ol{

RECETvEDBy,

**[r*'

HOIU. CLJrit"O A" 1u.tr{ELLAI{O


Pro si:ci,r i or-

De1:ar"t.r'rt

r--r r

Manil

t ol

iL

i.1,-:

eli er.arl
.lLt s l.ir:e

ii:treci It::t..r1.:tll-rr.r,-:i11. l0l:; reqliesri_i;:g ieral


l.-1,^..
i:li:lrilBra[ce
rei;.i-i,.rer to i-lre 1*r inclor"semei_rtiateci
scLriqrlrl3er' ?1, :uls .f Bagr,rio citl. 1r,"on.".._rt,r,
lllLriei^ l\4anurcrl Sa.,_sag,, i'CA_G.1.:.
l\o.
r'fgr-i:ls e.rir.1cc1 "-At.t1-. ilrL,esto I_,. De k.rsSF,
sairtos
,,:",.. lil'C_Baguio Cit1r, Branch 60
ancl T ancl
Lltrivr:r-sit1. of ManilaL, r-elll_esentecl b}, pr.
Emily cle
LcOl-r,'

Dear

Pr',-x:t.,:r.ttr_rr-

(.1

eneral Ar"ellairo,

Orr l.ieptr"r.ni-ier 24,

:101 S, tlre Office receirrecl yoi-lr


suirjecr
lettei'r'i'l'iit:1t vi''as routecl to Lhe ur-rclersignecl,s
Division as a rle\z c'rse
assrigr-inLerrI on ic]ept.ember'2g, 20rs,
ancl r,irrrich reacls:

'l'lris refers t. ,te al_terchecl I st


i.clorse,rent
tliltec,l Septen-rber ?1, 20i5 ol City proseci-rlor
lJlmer- \4anr-rel Sagsago, Office of
Ciil, prosecutor
o[.Ragr-rio Cit1,, relatirze to CA_G.lR. Sp No.
128ri?ij entitlecl Att.1r. I1rl-resto I_. De l_os Seintos
\/rr-sr-ts f.lTC_Bergi_ric (-1i1.J,, Br-erncir G0 zrnci
T,
jnirrer"si[1,
l

I). lfe [,eon

o,

N4l,irri]a, representecl b5r

[p.

Ernilr,,

have gone uver the record of flre


we corrctur-w,ith the <lpiuion of CitSr
:,,i:,t:
-["r0*f,-]c*rt*tr
Exmeri ltaanrue] sagsago that t]re
..'u,ris ,re rrrougirt lrefore the c"*rI
of A.ppears
orr a petition for Certiorari.l
Ulie-

rl:rxq"t

ertrplrasis srr1i1rlicr1.

AH.g{",6 )

"/

".,i,,r

p}ie.,:Io'ott

liis reclrtesl for tlie filing ol

,n..,,,.','_1.-,"JJ,;:::,iil.i;:J,.".,1,,:i_r:fl
'l'hanl<

fi

rhe

::.,i":,*::

1161.

A lretr-tsal

oi- the attachecl clocL'rrnents


to saicl letter shor,rrs tlra[
ci,us.: lras; erlr-eacilz 1r..,r arlvers_f].
;;;;ciicatecl
Jrlr 6^re Cot_rri of
Ap1-'ecilsr. I-renc',:, iI'elrer, er
lrrt.itiolr for ..iri.r,, o,.,
?L'1i''11;isii roi'
"..iior*r, *,itL, ,r,r.

the

lili-*::,,;:1ili.;:',-]#-';

tri
2

"*.tio.*.i u,itii ure coui r. oi

L)ltscrrzeclil,, tlre Office of.tire


Cit5r p.onec1-ttor, Bagr-rio
Cit1. 5*=
ap
p e a l s' ai Jf o *i ro,,.
::::,';: ::"',i';,.:,1.::if
o,,
"r

._'1

ll: "i.,-..u,,i o,. |;;;J;j"-:.i


i,' ffi#frtff ;;, il ",]:H:;
;r1J
"
:l,

*,-,.i n *

".,

;::fl 5,l; ;i:'1,,1, i:tT:r


I*

a1iJ'I .,'\zelrt,

;,,i_lr;" *il

resf

:x::

n""" n o rectric,n iir g

that that we *2i11 give olrr


co,for-,rit-\'1:o 1lie,rotio" ro,
e:rte,sio, of time to llre petiilo*
t'etrieu, ilncl irr.iition for- ,=,ri"ro,
for
ru\i\1
'
\^1It1cll tlle
urhich
thr private respclnclen
U,irrer-riir.\, ,[ ]i4r,rr-rila rndll
t
file.aLssclrecl

Jir-;iit regerr-c1s.

Ver5, tru15, ]io1-lrs,

AAlrn^,o",B
,4"RD U..IXBiENAIUDEfl
,Assislarzt Solicitor Gene
6cil

..r-i

/t
lt

\42\t'l'Z/h-t)l,rrL ,\rcllrirr. r.c


lr(.1(,s Sa.tris

's.

ll,.i,C, I_tagLrio tlr, L1I,l/026

\*..{_.i
l0g

AFFIDAVIT OF SERVICE
l, JAIME M. TAYAG, a paralegal of MADRID DANAO & CARULLO, with office address at Suite
1609, 16/F Jollibee Plaza, F. Ortigas Jr. Road (ex-Emerald Ave.), Ortigas Center, Pasig City, after having
been duly sworn to in accordance with law, hereby depose and state:
That on

I served copies of the following Pleading/Paper:

PETITION FOR REVIEW ON CERIIORAR/ UNDER RULE 45

ln G.R. No. 220685 [CA-G.R. SP No. 1286251, entitled "People of the Philippines vs. Atty. Ernesto
Sanfos"pursuant to Sections 6, 7 and 13 of Rule 13 of the 1997 Rules,of Civil Procedure, as follows:

L. Detos

Bv Personal Service:

COURT OF APPEALS
Ma. Orosa Street
Ermita, 1000 Manila
[CA-G.R. SP No. 128625]
OFFICE OF THE SOLICITOR GENERAL
(ASG BERNARD G. HERNANDEZ)
No. 134 Amorsolo Street
Legaspi Village, 1299 Makati City

Bv Reqistered Mail:
RTC.BAGUIO CITY, BRANCH 60
Hall of Justice Complex
Baguio City
RTC.BAGUIO CITY, BRANCH 7
Hall of Justice Complex
Baguio City
RTC.BAGUIO CITY, BRANCH 5
Hall of Justice Complex
Baguio City
ATTY. FILIBON FABELA TACARDON
TACARDON AND PARTNERS
Counsel for Respondent
Unit 501, West Mansion Condominium
West Avenue cor. Zamboanga Street
1104 Quezon City.
ERNESTO L. DELOS SANTOS
Respondent
108 Cenacle Drive, Senville Subdivision
Tandang Sora, Quezon City
by depositing FIVE (5) copies at the Ortigas Post Office of pasig City as evidenced by Registry Receipt Nos.
and
hereto attached
and indicated after the name of the addressee, and with instruction to the postmaster lo return the mail to the
sender after ten (1 0) days if undelivered.
-. r*,Ad?,

rll::-,-lC$fl #$fl,fl60,.".

#t

YAG

00r 2 3 2015

ffi$-$w

SUBSCRIBED AND SWORN to before me this


affiant
exhibiting to me his Driver's License No. N03-90-087059 expiring on 02 April 2018 at LTO-euezon City

b4.

Doc. No.
Page No. _-tf_,
2rJ
Book No.
Series of 2015.