SECOND DIVISION

[G.R. No. 166061. July 6, 2007.] ANDY QUELNAN y QUINO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION TINGA, J :
p

This petition for review seeks the reversal of the Decision 1 of the Court of Appeals in CA-G.R. CR No. 22001 dated 12 November 2004, affirming the Decision 2 of the Regional Trial Court (RTC), Branch 138, Makati City, in Criminal Case No. 96-1498, that found Andy Quelnan y Quino 3 (petitioner) guilty of violating Section 16, Article III of Republic Act (R.A.) No. 6425, as amended, otherwise known as The Dangerous Drugs Act of 1972. The accusatory portion of the Information against petitioner reads:
That on or about the 27th day of August, [sic] 1996, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control 27.7458 grams of Methamphetamine Hydrochloride (Shabu), a regulated drug. Contrary to law.
4

During arraignment, petitioner pleaded not guilty. Trial on the merits ensued. Witnesses 5 for the prosecution testified as to the following set of facts: On 27 August 1996, a team from the Police Assistance and Reaction Against Crime (PARAC) of the Department of Interior and Local Government (DILG), composed of Chief Inspector Carlos Acosta, SPO4 Isagani Ilas, SPO2 Manubay, SPO2 Sanggalang, SPO2 Teodoro Sinag, SPO2 Mario Magno, SPO2 de Leon, SPO2 Cecil Fajardo, SPO3 Marcelo Alcancia, SPO3 Dennis Zarcal, and PO1 Eraldo

Lectura, 6 was formed to implement a search warrant issued by the RTC of Manila on 26 August 1996. 7 At around 3:00 p.m., the team proceeded to the Cityland Condominium in South Superhighway, Makati. Upon arrival, they went directly to the Security Office of said building to seek assistance in serving the warrant. Security Officer Celedonio Punsaran (Punsaran) accompanied the group and they proceeded to Unit 615.

HSaIDc

At their knocking, a male person naked from the waist up opened the door. 8 He was later identified as petitioner. SPO2 Sinag presented the search warrant to petitioner. 9 Upon entry, the police operatives searched the unit, which was composed of a small room with a plywood divider separating the sala from the bedroom. 10 In the presence of petitioner and Punsaran, the group started searching the place and eventually found on top of the bedroom table three (3) pieces of transparent plastic sachets containing white crystalline substances later confirmed by the National Bureau of Investigation (NBI) forensic chemist as shabu, plastic tubings, weighing scales, an improvised burner, and empty transparent plastic sachets. 11 Thereafter, the group prepared a receipt of the properties seized and an Affidavit of Orderly Search allegedly signed by petitioner in their presence and that of Punsaran. 12 Meanwhile, the group also went to Unit 418 of the same building to serve the warrant and search the place. The police operatives did not find any occupant in the room. Petitioner was then brought to the PARAC office for investigation. The pieces of evidence gathered by the police operatives were brought to the NBI for examination. That same day, NBI Forensic Chemist Loreto F. Bravo issued a certification stating that upon examination, the specimen submitted yielded positive for methamphetamine hydrochloride. 13 The following day, the Arrest Report and Joint Affidavit of Apprehension were executed by the police operatives leading to the arrest and charging of petitioner for violation of Section 16, Article III of R.A. No. 6425. In his defense, petitioner testified that he is a resident of 150 Legaspi Tower 300, 2600 Roxas Boulevard, Manila. 14 He also happens to be the registered owner of Unit 615 of Cityland Condominium in Makati City, which he leased to Sung Kok Lee (Lee) beginning May 1996. 15 On 27 August 1996, at around 3:00 p.m., petitioner went to Unit 615 to collect payment of rental from Lee. Upon knocking at the door, petitioner was greeted by the maid. The maid told him to wait for Lee inside the room while she went out to buy some refreshments. After

a while, petitioner heard somebody knocking at the door and he opened it. He saw around 15 to 20 armed men who suddenly barged into the room. The officer in charge asked for a certain Bernard Kim and petitioner introduced himself as the owner of the condominium unit. The police operatives then proceeded to search the house for the next half hour while petitioner was waiting in the sala. Petitioner was also forced to sign some documents at gunpoint. Petitioner was then handcuffed and brought to the PARAC office. Two days later, he was brought to the Makati Prosecutor's Office for inquest and a case was subsequently filed against him. 16
ICTaEH

In behalf of petitioner, Luis Alvarez, the administrator of Cityland Condominium, testified that Lee was the actual occupant of Unit 615 at the time petitioner was arrested. 17 Celso Fiesta, petitioner's driver, also stated in court that petitioner resides at Legaspi Tower. On 27 August 1996, he dropped petitioner off at Cityland Condominium between 1:00 and 2:00 p.m. Two and a half hours later, he went back to pick him up. As he was about to park the car, somebody poked a gun at him and introduced himself as PARAC. Fiesta was ordered to get out of the car and the PARAC team searched the vehicle. They found a gun and brought Fiesta to the DILG. He was released the following day. 18 After trial, the RTC found petitioner guilty and sentenced him to suffer imprisonment of two (2) years, four (4) months and one (1) day of prision correccional as minimum to four (4) years, nine (9) months and ten (10) days of prision correccional as maximum. 19 In convicting petitioner, the trial court relied heavily on the clear, straightforward, and candid testimonies of the prosecution witnesses:
They were all present when the search warrant was implemented at Unit 615 Cityland Condominium. No infirmity or flaw affecting their credibility exists. Further, the Court considered that they are public officers and there was no showing that they were motivated by ill-will testimonies or bad faith to falsely testify against the accused. There was no evidence of intent to harass the accused. The presumption of regularity in the performance of their functions can be fairly applied. 20

On appeal, the Court of Appeals affirmed the trial court's ruling, modifying however the penalty to be imposed on petitioner in that he shall suffer the indeterminate penalty of six months of arresto mayor as minimum to three (3) years and six (6) months of prision correccional as maximum. 21 Petitioner now seeks the reversal of said judgment. His conviction or acquittal rests on the validity of the warrantless arrest. The prosecution proffers that

petitioner was caught in flagrante delicto in possession of the subject shabujustifying his warrantless arrest. Another crucial issue arises, that of the validity of the enforcement of the search warrant as basis for the presence of the police operatives in the Cityland Condominium unit. Therefore, these matters may be summarized into two issues for our resolution: whether the search warrant was properly enforced and whether petitioner was validly arrested without warrant.
DCIEac

The issue as to whether the search warrant was validly implemented necessitates a review of the tenor of the search warrant, vis--vis the conduct of the police operatives enforcing such warrant. Search Warrant No. 96-585 reads:
REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION PEOPLE OF THE PHILIPPINES, Plaintiff, - versus -SEARCH WARRANT NO. 96-585 FOR: VIOLATION OF R.A. 6425 BERNARD LIM 22 (Dangerous Drug Act 1972) Room 615 Cityland Condominium South Superhighway, Makati City Respondent. SEARCH WARRANT TO ANY PEACE OFFICER: GREETINGS: It appearing to the satisfaction of the undersigned under examining under oath PNP SPO4 ISAGANI J. ILAS and his witness, that there are [sic] reasonable ground to believe that VIOLATION OF R.A. [No.] 6425 has been committed or is about to be committed and there are good and sufficient reasons to believe that still undetermined Quantity of Met[h]amphetamine Hydrochloride (Shabu) has [sic] in his possession and control. You are commanded to make an immediate search anytime of the day or night of the premises abovementioned and forthwith seize and take possession of the abovementioned MET[H]AMPHETAMINE HYDROCHLORIDE (SHABU) subject of the offense and bring to this

Court said drugs and persons to be dealt with as the law may direct. You are further directed to submit return within ten (10) days from today. GIVEN UNDER MY HAND AND SEAL OF THIS COURT, this 26[th] day of August 1996 in Manila, Philippines. HON. WILLIAM M. BAYHON Executive Judge, RTC Branch XXIII, Manila NOTE: This Search Warrant shall be valid for ten (10) days from date of issue. 23

Petitioner assails the improper enforcement of the search warrant in that despite the knowledge that petitioner was not the subject of such warrant, the police operatives proceeded anyway with the search and his resulting arrest. According to him, the Court of Appeals erred in declaring that where a search warrant is issued for the search of specifically described premises and not of a person, the omission of the name of the owner or occupant of such property in the warrant does not invalidate the same. Petitioner contends that this doctrine applies only if the search warrant does not indicate with all certainty the owner or occupant of the premises sought to be searched; on the contrary, the subject search warrant indicated with absolute clarity that the person subject thereof is Kim.
TcaAID

This argument is misplaced. Section 4, Rule 126 of the Revised Rules of Criminal Procedure provides for the requisites for the issuance of search warrant, to wit:
SEC. 4.Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Nowhere in said rule or any other provision in the Revised Rules of Criminal Procedure is it required that the search warrant must name the person who occupies the described premises. In Uy v. Bureau of Internal Revenue, 24 the Court has definitively ruled that where the search warrant is issued for the search of specifically described premises only and not for the search of a person, the failure to name the owner or occupant of such property in the affidavit and search warrant does not invalidate the warrant; and where the name of the owner of the premises sought to be searched is incorrectly inserted in the search

warrant, it is not a fatal defect if the legal description of the premises to be searched is otherwise correct so that no discretion is left to the officer making the search as to the place to be searched. A cursory reading of the search warrant reveals that the police officers were ordered to make an immediate search of the premises mentioned and to seize and take possession of shabu. Furthermore, they were directed to bring "persons to be dealt with as the law may direct." While petitioner may not be the person subject of the search, the fact that he was caught in flagrante delicto necessitated his valid warrantless arrest. Therefore, the fact that petitioner's name was not indicated in the search warrant is immaterial.
CTIDcA

Turning to the second issue, petitioner insists that his apprehension cannot be considered in flagrante delicto because he was not in possession of the forbidden drug. In every prosecution for the illegal possession of shabu, the following essential elements must be established: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug. 25 More importantly, the prosecution must prove that the accused had the intent to possess the drug. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion, as well as the character of the drug. Since knowledge by the accused of the existence and character of the drug in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation. 26 For the trial court, the fact of possession was clearly and convincingly established by the prosecution, to wit:

Prosecution has presented in Court the three (3) plastic sachet[s] containing 27.7458 grams of methamphetamine hydrochloride as well as all paraphernalia seized from the accused consisting of an improvised burner, two (2) pieces of weighing scale, plastic tubing, aluminum foil, empty transparent plastic sachets, Icom radio, Calculator, Cellular phone, disposable lighters, and two (2) pieces [of] blank cartridge. SPO4 Ilas and SPO2 Sinag clearly testified that they were found on top of a table in a room of [sic] Unit 615 in the afternoon of August 27, 1996 at a time when only the accused was inside the premises. Thus, the fact of possession was clearly and convincingly established. 27
cAECST

The Court of Appeals pointed out that possession necessary for conviction of the offense of possession of controlled substances may be actual or constructive:
Although the shabu was not found by the searching team on his person but in the bedroom of the subject premises, appellant is deemed in possession thereof since he was the only person in said premises. Moreover, at the time of entry of the searching team in the subject premises, appellant was half-naked from the waist up which, as the trial court correctly concluded, only "indicates extreme familiarity and gives the impression of he being at home" in the premises, of which he was the registered owner. 28

Petitioner counters that he was in all his right to be in the leased premises because he had to collect the rentals due him from his tenant. He further argues that the shabu was allegedly found on top of the table inside the bedroom and not within the immediate location where he was positioned. When he was found half-naked by police operatives in another person's house, petitioner defends his act by invoking his "long bond of friendship" with Lee which made the former treat Lee's home like his own. 29 In support of the appellate court's ruling, the Solicitor General maintained that petitioner was in constructive possession of the subject shabu by citing several circumstances showing petitioner's control and dominion over the same. First, theshabu was found on top of a table in Unit 615 of Cityland Condominium when and where only petitioner was present inside the premises. Second, petitioner introduced himself as the owner of the condominium. Third, petitioner admitted that he was at the subject premises allegedly to collect rentals from the lessee. Fourth, petitioner was found naked from the waist up by the police operatives upon entering Unit 615. The Solicitor General stresses that petitioner's actuation of being naked from the waist up while opening the door to greet visitors is natural only to someone who owns the premises. 30 Fifth, Unit 615 is a studio unit with a divider and a sala. There was no room with a door to be closed

and locked which can prevent petitioner from having free access to the shabu found on the table.
cHSIAC

This Court is convinced that petitioner's control and dominion over the shabu found on top of the table were sufficiently established by his questionable presence in Unit 615. Petitioner's explanation that he went to Lee's unit to collect rentals and was left by the maid to fend for himself while the latter went out to buy refreshments is highly suspicious. The maid never came back. The maid's testimony would have corroborated that of petitioner's. Despite the presentation of the testimonies of Cityland Condominium Administrator Luis Alvarez and other witnesses tending to prove that petitioner is the owner and lessor of Unit 615 and his actual place of residence is in Legaspi Tower, such pieces of evidence do not necessarily prove that petitioner did not have access and control over the subject premises. In fact, petitioner's overt act of getting half-naked while opening the door establishes intimate familiarity with and over his surroundings. Petitioner seeks to justify such act by invoking his "long bond of friendship" with Lee. This was, however, belied by the testimony of the building administrator which showed that Lee was a mere walk-in applicant and he began renting Unit 615 only on 1 May 1996, barely three (3) months before petitioner was apprehended. 31 Petitioner, in fact, affirmed this fact in his earlier testimony that he allowed Lee, whom he barely knew, to occupy the unit with only one month rental deposit:
Q:Is it your practice to go personally to that unit to receive the rental? A:Yes, sir. Q:That's your practice? A:Yes, sir. Q:How much is the lease price? A:P6,500.00. Q:Payable monthly? A:At the second week of the month. Q:For what month was that rental where [sic] you were suppose to collect?

A:June and July[,] your Honor. Q:Is it not a practice[,] Mr. Witness[,] that now lessee should pay the deposit and a few months in advance? A:Yes, but he promise he does not have any money and to produce later on.[sic] Q:Which rental he is going to pay? A:The deposit and the monthly rental. Q:What you are saying [sic] when he entered the premises of this property he does not paid [sic] anything? A:He just paid for the month of May. Q:What you are saying you entered into a lease contract with a person you do not know during the said month, that he entered the unit he was not able to pay you even the deposit [sic]?
IcESaA

A:He paid me just one month. Q:And you agreed? A:Yes, sir. [H]e promised to pay later on.
32

Equally doubtful is the existence of the lease contract allegedly executed between petitioner and Lee which purportedly validates the presence of the former in Unit 615, which was to collect rentals from the latter. As the Solicitor General correctly observed, the lease agreement is undated and unnotarized. 33 During cross-examination, the building administrator who presented a copy of the lease agreement could not even remember when the contract was executed.34 Petitioner also testified that the rentals are payable at the second week of each month. 35 His statement is inconsistent with his avowed effort to collect payment in the last week of the month, particularly on 27 August 1996. We further find the Solicitor General's conclusion that petitioner was privy to the existence of the shabu on top of the table credible because the unit was a small room with a piece of plywood dividing the sala and the bedroom. With petitioner seemingly comfortable in moving about the unit, the shabu and other paraphernalia could not have escaped his vision.

Even more telling are the testimonies of the police operatives who conducted the search and subsequent arrest of petitioner. Inspector Acosta testified that his team conducted a search on Unit 615 and found petitioner inside the room alone and that the search resulted in the discovery of the shabu, to wit:
Q:In connection with your duties then as the member of the PARAC[,] do you recall if there was any occasion if you meet a certain person whose name [was] Andy Quelman? A:Yes, sir. Q:During what occasion did you meet this person? A:During [sic] when we conducted the search of the Cityland Condominium[,] South Superhighway[,] Makati City.

HICSTa

Q:If this person Andy Quelman is present in this Courtroom[,] can you point him out in the Court? COURT: Will you step down on the witness stand and tap on his shoulder? A:Yes, your Honor. COURT: Make of record that the witness stepped down on the witness stand and tapped the shoulder of a person seated on the gallery who when asked of his name answered his name as Andy Quelman. Q:You said that you conducted a search, when was this? A:August 27, 1996. Q:What time? A:3:00 o'clock in the afternoon. Q:Where did you conduct the search? A:At room 615 Cityland Condominium[,] South Superhighway[,] Makati City.

xxx xxx xxx Q:By what authority did you conduct your search at room or [U]nit 615 Cityland Condominium[,] South Superhighway[,] Makati City. A:We are armed with [a] search warrant. Q:Issued by whom? A:The RTC Judge Hon. Bayhon, City of Manila. xxx xxx xxx Q:So upon arriving at the 6th floor what did you do, or what did you do? A:We knocked at the door of [R]oom 615. Q:And what happened next? A:Somebody opened the door. Q:And after the door was opened[,] what did you and your team do next?
CHcETA

A:We presented our search warrant. Q:To whom? COURT: Would you know who open[ed] the door? A:Yes, sir. PROSECUTOR GARVIDA: Q:Who? A:Andy Quelman. PROSECUTOR GARVIDA: Q:Can you describe[,] Mr. Witness[,] the appearance of Mr. Andy Quelman when he opened the door?

A:He is half[-]naked wearing pants. Q:What about the upper body? A:Naked. Q:Upon presenting the search warrant[,] what did you do next? A:We proceeded to the room to conduct the search. xxx xxx xxx Q:You said you proceeded to conduct the search. [W]hat was Mr. Quelman doing while you are conducting the search?
EIDTAa

A:He was sitting at the table inside the room. xxx xxx xxx Q:Now can you describe to this Court how you conducted the search[,] Mr. Witness? A:First we proceeded to his room and I saw Mr. Quelman sitting at his table. Later on we found at his table all the paraphernalia. Q:Can you enumerate to this Court what[,] if any[,] did you find [sic] during the search? A:We found 3 transparent plastic containing white crystalline substance. Q:Where did you find [sic]? A:Atop the table. xxx xxx xxx Q:What did you do with Mr. Quelman after you found these items which you [have] just enumerated? A:We bring [sic] Andy Quelman to our office.
36

The foregoing testimony was substantially corroborated by SPO4 Isagani Ilas and SPO2 Teodoro Sinag who were both part of the arresting team. These witnesses positively identified petitioner as the occupant of Unit 615 at the time the search

was conducted and that he was caught in flagrante delicto when the shabu was found in his constructive possession. The trial court placed great weight on the testimonies of these police officers and accorded them the presumption of regularity in the performance of their functions. 37 The prosecution of drug cases largely depends on the credibility of the police officers. The factual findings of the trial court especially those which revolve on matters of credibility of witnesses deserve to be respected when no glaring errors bordering on a gross misapprehension of the facts or no speculative, arbitrary, and unsupported conclusions can be gleaned from such findings. The evaluation of the credibility of witnesses and their testimonies is best undertaken by the trial court because of its unique opportunity to observe the witnesses' deportment, demeanor, conduct, and attitude under grilling examination. 38 In this case, the RTC was upheld by the Court of Appeals. Petitioner has not convinced this Court of the existence of any of the recognized exceptions 39 to the conclusiveness of the findings of fact of the trial and appellate courts.
ADTEaI

In sum, petitioner's unlawful possession, as exhibited by his control and dominion over the shabu found on top of the table, was duly established by the following evidence: his presence in Unit 615 at the time of his arrest; 40 his representation to the police that he was the owner of the unit; 41 his half-naked state when he opened the door, strongly implying that he had stayed in the house longer than he claimed to be; and finally, the fact that the shabu was found on top of a table beside the bed which appears to be within sight of petitioner as there was a mere divider between the sala and bedroom. 42 Having caught petitioner in flagrante delicto, the police operatives are obligated to apprehend him even without a warrant of arrest. We shall now determine the imposable penalty. Both the lower courts erred as to the respective penalties they imposed. Section 16, Article III of R.A. No. 6425, as amended, provides that if the quantity of the regulated drug involved, in this case, shabu, is less than 200 grams, the penalty to be imposed shall range from prision correccional to reclusion perpetua. Since petitioner was charged with the possession of 27.7458 grams of shabu, the imposable penalty is prision correccional. 43 Applying the Indeterminate Sentence Law, the petitioner is sentenced to suffer an indeterminate penalty ranging from four (4) months and one (1) day of arresto mayor in its medium period as minimum, to three (3) years ofprision correccional in its medium period as maximum.

WHEREFORE, the instant petition is DENIED and the assailed Court of Appeals Decision in CA-G.R. CR No. 22001 is AFFIRMED with MODIFICATION in that petitioner ANDY QUELNAN y QUINO is sentenced to suffer an indeterminate penalty of imprisonment ranging from Four (4) Months and One (1) Day of arresto mayor in its medium period as minimum to Three (3) Years of prision correccional in its medium period as maximum.
TcCDIS

SO ORDERED.

SECOND DIVISION
[G.R. No. 173051. July 31, 2007.] [Formerly G.R. No. 161678] THE PEOPLE OF THE PHILIPPINES, appellee, vs. GERARDO ORTEZA, appellant. DECISION TINGA, J :
p

Gerardo Orteza was charged before the Regional Trial Court of Tarlac City, Branch 64, with illegal sale of shabu in violation of Section 5, Article II of Republic Act No. 9165 1 (R.A. No. 9165). The Information dated 20 November 2002 against him reads:
INFORMATION The undersigned Assistant Provincial Prosecutor (detailed), upon his inquest investigation, accuses GERARDO ORTEZA y Orteza, a resident of Block 9, San Nicolas, Tarlac City and presently detained at Camp Macabulos, Tarlac City of the crime of Violation of Section 5, Article II of Republic Act 9165, (Dangerous Drug of 2002), committed as follows: That on November 19, 2002, at around 9:00 o'clock in the evening, at Tarlac City and within the jurisdiction of this Honorable Court, accused, did then and there willfully, unlawfully and criminally sell, dispense and deliver .063 gram of Methamphetamine Hydrochloride, known as Shabu,

a dangerous drug, to poseur buyer SPO1 Rodolfo Ramos for P100.00, without being authorized by law. CONTRARY TO LAW.
2

Upon arraignment, appellant entered a plea of not guilty. 3 During trial, the prosecution adopted the Joint Affidavit of Arrest 4 dated 20 November 2002 executed by PO2 Allan J. Lagasca, PO3 Daniel I. Lingsay, SPO1 Rodolfo L. Ramos, and SPO4 Pascual M. Delos Reyes as their testimonies. Delos Reyes and Lagasca appeared in court and confirmed their statements in the Joint Affidavit. 5
DaTHAc

According to the Joint Affidavit, a team comprised of the above-mentioned police officers was formed to conduct a buy-bust operation at Block 9, San Nicolas, Tarlac City on 19 November 2002 to apprehend suspected drug peddlers. The suspects have previously been under a week-long surveillance after the police officers received reports about their illegal activities. 6 The team with its back-up arrived at the place at around nine o'clock in the evening of said date. The appointed poseur-buyer SPO1 Ramos, together with the informant, approached the two (2) suspects Leng Leng and Buboy while the back-up team positioned itself nearby. SPO1 Ramos purchased one (1) sachet of shabu for One Hundred Pesos (P100.00) from Buboy. Then, SPO1 Ramos gave the pre-arranged signal. Immediately, the rest of the team rushed to the scene and placed the two (2) suspects under arrest. After a body search, the marked money was recovered from Buboy and another sachet of shabu was confiscated from Leng Leng. Thereafter, the suspects were brought to Camp Macabulos where Buboy identified himself as Gerardo Orteza. 7 Later upon examination, Engr. Marcene Agala of the Regional Crime Laboratory, Camp Olivas, San Fernando, Pampanga, confirmed that the two (2) sachets recovered from the scene were positive for methamphetamine hydrochloride. 8 As lone witness for the defense, appellant testified that on 19 November 2002 at around 5:30 p.m., he was about to enter the house when he was halted by PO2 Lagasca. Then, Lagasca allegedly forced him to go with him. Lagasca supposedly asked appellant not to make a scene as he would be freed later on. Subsequently, appellant was taken to Camp Macabulos. Appellant denied selling shabu. He denied ever speaking to SPO1 Ramos, the poseur-buyer. He also denied knowing a certain Leng Leng. 9

After trial, the trial court rendered a Decision follows:

10 dated

4 April 2002, disposing as

WHEREFORE, premises above considered finding the guilt of the accused proven beyond reasonable doubt by the Prosecution for violation of Section 5, Article II of Republic Act [No.] 9165, this Court sentences Gerardo Orteza y Orteza to [a] penalty of life imprisonment to death and a fine ranging from Ph[P]500,000.00 to Ph[P]10,000,000.00 cost against the accused. SO ORDERED.
11

The judgment of conviction was elevated to the Court for automatic review. In a Resolution 12 dated 8 November 2005 of the Court in G.R. No. 161678, 13 the case was transferred to the Court of Appeals pursuant to the Court's ruling in People v. Efren Mateo. 14
IaAHCE

Before the Court of Appeals, appellant argued that the trial court erred: (1) in giving credence to the testimonies of the prosecution witnesses; and (2) in finding him guilty of violating Section 5, Article II of R.A. No. 9165. 15 Except for some modifications, the Court of Appeals in a Decision 16 dated 28 February 2006, in CA-G.R. CR No. 01813, affirmed the decision of the trial court. The dispositive portion of the decision reads:
WHEREFORE, in light of the foregoing premises, the decision appealed from is hereby AFFIRMED save for amodification in the imposed penalty which is now fixed at life imprisonment and a fine of P500,000.00. SO ORDERED.
17

The Court of Appeals held that the requisites of the crime of illegal sale of prohibited drugs were borne out by the evidence on record. The identity of appellant as the seller was established by the positive testimonies of the members of the buy-bust team; the test conducted on the crystalline substance sold by appellant showed that it was positive forshabu; third, the exchange between the poseur-buyer and appellant was for a consideration and in fact the marked money was recovered from appellant when a body search was conducted on his person. 18 Although the poseur-buyer was not presented in court, the appellate court ruled that the unswerving and compatible testimonies of the two members of the buy-

bust team, who were eyewitness to the transaction, sufficed to pin down appellant. 19 Against these positive declarations, appellant only professed bare denials which cannot sway judgment when unsupported, the appellate court noted. 20 The Court of Appeals however modified the penalty imposed considering the trial court's failure to specify the actual penalty to be suffered by appellant and the amount of fine he was supposed to pay. Instead, it sentenced appellant to suffer the penalty of life imprisonment and pay a fine of P500,000.00. 21 Appellant is now before the Court reiterating his contention that the prosecution was not able to establish with moral certainty the actual transaction or sale of shabu as a fact. He maintains that the non-presentation of the poseur-buyer is fatal to this case as the two police officers who testified were, by their own admission, located at a distance and could not hear the alleged conversation between appellant and the poseur-buyer. 22 Through his Manifestation (In Lieu of Supplementary Brief) dated 9 August 2006, 23 appellant stated that he had exhaustively argued all the relevant issues in his Accused-Appellant's Brief filed before the Court of Appeals and that the filing of a supplemental brief might result in a repetition of the same arguments. Thus, he manifested that he was adopting the Accused-Appellant's Brief as Supplemental Brief. 24 The Office of the Solicitor General manifested that it was no longer filing a supplemental brief. 25
SDAaTC

There is merit in the appeal. The Constitution mandates that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt. It is the burden of the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. Corollarily, the prosecution must rest on its own merits and must not rely on the weakness of the defense. In fact, if the prosecution fails to meet the required quantum of evidence, the defense may logically not even present evidence in its own behalf. In which case, the presumption of innocence shall prevail and hence, the accused shall be acquitted. However, once the presumption of innocence is overcome, the defense bears the burden of evidence to show reasonable doubt as to the guilt of the accused. Reasonable doubt is that doubt engendered by an investigation of the whole proof and an inability after such investigation to let the mind rest each upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict a criminal charge, but moral certainty is required as to every proposition of proof requisite to constitute the offense. 26

In a prosecution for illegal sale of dangerous drugs, the following must be proven: (1) that the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and seller were identified. 27 What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug. The delivery of the contraband to the poseur-buyer and the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the accused. 28 The Court believes that the prosecution was not able to establish with certainty all the elements necessary for the conviction of appellant for illegal sale of shabu. First, there appears nothing in the records showing that police officers complied with the proper procedure in the custody of seized drugs as specified in People v. Lim, 29 i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the requirement raises doubt whether what was submitted for laboratory examination and presented in court was actually recovered from appellant. It negates the presumption that official duties have been regularly performed by the police officers.

In People v. Laxa, 30 where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus

delicti.

CDScaT

The Court made a similar ruling in People v. Kimura, 31 where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, 32 the Court held that the material inconsistencies with regard to when and where the markings on the shabu were

made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. Significantly, Engr. Agala, the chemical engineer who conducted the laboratory test on the two (2) sachets, testified in part as follows:
ON CROSS-EXAMINATION BY ATTY. ABRENICA xxx xxx xxx QLikewise, you did not conduct the fingerprint examination to find out or dusting of fingerprint on these sachets to find out if these indeed were handled by the accused Gerardo Orteza, correct? AYes, ma'am.
33

Secondly, the Court observes that the prosecution did not present the poseurbuyer who had personal knowledge of the transaction. In People v. Uy, 34 the Court ruled that the non-presentation of the poseur-buyer is fatal only if there is no other eyewitness to the illicit transaction. This doctrine was reiterated in People v. Ambrosio. 35 In both cases, however, not only were there other eyewitnesses to the illegal sale, the non-presentation of the poseur-buyer was also satisfactorily explained. In People v. Uy, the police officer who acted as the poseur-buyer at the time of the trial was paralyzed and confined in a hospital due to gunshot wounds. In People v. Ambrosio, the poseur-buyer was working on another buy-bust operation. The Court therein stated that to require her to testify in open court would divulge her identity and expose her to danger considering that there was another buy-bust operation going on. In this case, though, after the poseur-buyer, SPO1 Ramos, failed to appear in court despite having been subpoenaed six (6) times, 36 the prosecution did not even bother to offer any explanation for his non-appearance considering that he, a police officer, was no different from the other witnesses who were presented in the end by the prosecution. In Ramos's place, the prosecution presented two other police officers, who although members of the back-up team of the buybust operation were, in the Court's view, not reliable eyewitnesses to the transaction. Pertinently, PO2 Lagasca feebly testified as follows:
ScaHDT

ON CROSS-EXAMINATION BY

ATTY. ABRENICA Counsel for the Accused Q Mr. Witness, this is your first time to see the accused [sic]? A No, ma'am. QWhat do you mean no[?] [H]ave you seen him before? AYes, ma'am. QDid you conduct surveillance on him, Mr. Witness? AYes, ma'am. QThen you could have easily gotten a search warrant or a warrant of arrest for him[,] isn't it[?] [O]r you did not, did you, Mr. Witness? ABuy-bust operation, ma'am. QPrior to this, you have not arrest [sic] the accused, is that correct? ANot yet, ma'am. QDo you know SPO1 Rodolfo Lindo Ramos? AYes, ma'am. QAnd you are the back-up in this incident or his arrest[,] Mr. Witness, or you are the poseur-buyer? AI was the back-up, ma'am. QSo as a back-up, you positioned yourself at a place where you will not be seen by the accused, correct? AWe can see then, ma'am. QBut he cannot see you? AYes, ma'am.
DSHTaC

QAnd it was Lindo Ramos who acted as a poseur buyer? AYes, ma'am.

QNow it was only when this Lindo Ramos gave a pre-arranged signal that you approached the accused, is that correct? AYes, ma'am. QSo from a distance you can only see the signal, what was that signal, Mr. Witness? ABy waving his right hand, ma'am. QSo you cannot hear or what they were talking about, is that correct? AYes, ma'am.
37

Moreover, the testimonies of the two police officers did not include any positive face-to-face identification in open court of appellant as the seller of shabu, an aspect which was crucial to establish appellant's role in the alleged transaction. It is likewise unclear in the Joint Affidavit of Arrest, which was adopted by the two police officers as their direct testimony, whether the two had a clear and close view of the alleged sale of shabu to support the assertion that they were eyewitnesses to it. The affidavit only stated that the back-up men "who were then placed in a strategically [sic] position near the vicinity are watching the on going deal." 38 As such, the testimony of the poseur-buyer, in this case Ramos, was pivotal as only he could testify on what had really transpired during the moment of the alleged sale of shabu. His non-presentation in this case was fatal, absent any explanation for his non-appearance and reliable eyewitness who could testify in his place. Another befuddling point was the non-prosecution of Leng Leng for the same crime. It was testified that both he and appellant participated in the illegal sale but records were silent as to why he was not indicted for the crime especially since the amount of shabu mentioned in the information was the total sum of the shabu found in the two (2) sachets recovered from the scene, one from appellant and the other one from Leng Leng. 39 In addition, no proof of conspiracy was adduced to hold appellant liable for the sale of both sachets. In fact, the second sachet was never sold as it was confiscated from Leng Leng after a body search. While Section 5, Article II, R.A. No. 9165 prohibits and penalizes the illegal sale of shabu regardless of the amount, the paucity of evidence on these material points engender reasonable doubt on the credibility of the prosecution's theory.

All told, the totality of the evidence presented in the instant case did not support appellant's conviction for violation of Section 5, Article II, R.A. No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense. Accordingly, the presumption of innocence should prevail and the exoneration of appellant declared as a matter of right. WHEREFORE, the Decision dated 29 October 2003 of the Regional Trial Court of Tarlac City, Branch 64 in Criminal Case No. 12420 is REVERSED and SET ASIDE. Appellant GERARDO ORTEZA y ORTEZA is ACQUITTED of the crime charged on the ground of reasonable doubt and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause.
TEHIaA

The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio. SO ORDERED.

THIRD DIVISION
[G.R. No. 179940. April 23, 2008.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORBERTO DEL MONTE y GAPAY @ OBET,accused-appellant. DECISION CHICO-NAZARIO, J :
p

Assailed before Us is the Decision 1 of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May 2007 which affirmed with modification the Decision 2 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, in Criminal Case No. 3437-M-02, finding accused-appellant Norberto del Monte, a.k.a. Obet, guilty of violation of Section 5, 3 Article II of Republic Act No. 9165, otherwise known as "Comprehensive Dangerous Drugs Act of 2002."

On 11 December 2002, accused-appellant was charged with Violation of Section 5, Article II of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002. The accusatory portion of the information reads:
That on or about the 10th day of December 2002, in the municipality of Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there wilfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat-sealed transparent plastic sachet of Methylamphetamine Hydrochloride weighing 0.290 gram. 4

The case was raffled to Branch 78 of the RTC of Malolos, Bulacan and docketed as Criminal Case No. 3437-M-02. When arraigned on 20 January 2003, appellant, assisted by counsel de oficio, pleaded "Not Guilty" to the charge. 5 On 17 February 2003, the pre-trial conference was concluded. 6 Thereafter, trial on the merits ensued.
cTECHI

The prosecution presented as its lone witness PO1 Gaudencio M. Tolentino, Jr., the poseur-buyer in the buy-bust operation conducted against appellant, and a member of the Philippine National Police (PNP) assigned with the Philippine Drug Enforcement Agency (PDEA) Regional Office 3/Special Enforcement Unit (SEU) stationed at the Field Office, Barangay Tarcan, Baliuag, Bulacan. The version of the prosecution is as follows: On 10 December 2002, at around 3:00 o'clock in the afternoon, a confidential informant went to the office of the PDEA SEU in Barangay Tarcan, Baliuag, Bulacan and reported that appellant was selling shabu. Upon receipt of said information, a briefing on a buy-bust operation against appellant was conducted. The team was composed of SPO2 Hashim S. Maung, as team leader, PO1 Gaudencio Tolentino, Jr. as the poseur-buyer, and PO1 Antonio Barreras as backup operative. After the briefing, the team, together with the confidential informant, proceeded to Poblacion Dike for the execution of the buy-bust operation. When the team arrived at appellant's place, they saw the appellant standing alone in front of the gate. The informant and PO1 Tolentino approached appellant. The informant introduced PO1 Tolentino to appellant as his friend, saying"Barkada ko, user." PO1 Tolentino gave appellant P300.00 consisting of

three marked P100 bills. 7 The bills were marked with "GT JR", PO1 Tolentino's initials. Upon receiving the P300.00, appellant took out a plastic sachet from his pocket and handed it over to PO1 Tolentino. As a pre-arranged signal, PO1 Tolentino lit a cigarette signifying that the sale had been consummated. PO1 Barreras arrived, arrested appellant and recovered from the latter the marked money. The white crystalline substance 8 in the plastic sachet which was sold to PO1 Tolentino was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan, for laboratory examination to determine the presence of the any dangerous drug. The request for laboratory examination was signed by SPO2 Maung. 9 Per Chemistry Report No. D-728-2002, 10the substance bought from appellant was positive for methamphetamine hydrochloride, a dangerous drug. The testimony of Nellson Cruz Sta. Maria, Forensic Chemical Officer who examined the substance bought from appellant, was dispensed after both prosecution and defense stipulated that the witness will merely testify on the fact that the drugs subject matter of this case was forwarded to their office for laboratory examination and that laboratory examination was indeed conducted and the result was positive for methamphetamine hydrochloride. 11 For the defense, the appellant took the witness stand, together with his common-law wife, Amelia Mendoza; and nephew, Alejandro Lim. From their collective testimonies, the defense version goes like this:
CTAIDE

On 10 December 2002, appellant was sleeping in his sister's house in Poblacion Dike when a commotion woke him up. His nephew, Alejandro Lim, was shouting because the latter, together with appellant's common-law wife, Amelia Mendoza, and a niece, was being punched and kicked by several police officers. When appellant tried to pacify the policemen and ask them why they were beating up his common-law wife and other relatives, the policemen arrested him, mauled him, punched him on the chest, slapped him and hit him with a palo-palo. He sustained swollen face, lips and tooth. His common-law wife was likewise hit on the chest with the palo-palo. The policemen then took appellant and his common-law wife to a house located in the middle of a field where the former demanded P15,000.00 for their liberty. The next day, appellant was brought to the police station. Amelia Mendoza identified PO1 Tolentino and PO1 Barreras as the police officers who manhandled them and who demanded P15,000.00 so that she and appellant

could go home. The following day at 6:00 a.m., she said her child and cousin arrived with the P15,000.00. She was released but appellant was detained. She does not know why the police officers filed this case against appellant. What she knows is that they were asking money from them. Alejandro Lim merely corroborated the testimonies of appellant and Amelia Mendoza. On 8 March 2004, the trial court rendered its decision convicting appellant of Violation of Section 5, Article II of Republic Act No. 9165, and sentenced him to life imprisonment and to pay a fine of P5,000,000.00. The dispostive portion of the decision reads:
WHEREFORE, the foregoing considered, this Court hereby finds accused Norberto del Monte y Gapay @ Obet GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Art. II of R.A. 9165 and sentences him to suffer the penalty of LIFE IMPRISONMENT and a fine of P5,000,000.00. With cost. The drugs subject matter of this case is hereby ordered forfeited in favor of the government. The Branch of this Court is directed to turn over the same to the Dangerous Drugs Board within ten (10) days from receipt hereof for proper disposal thereof. 12

The trial court found the lone testimony of PO1 Gaudencio M. Tolentino, Jr. to be credible and straightforward. It established the fact that appellant was caught selling shabu during an entrapment operation conducted on 10 December 2002. Appellant was identified as the person from whom PO1 Tolentino bought P300.00 worth of shabu as confirmed by Chemistry Report No. D-728-2002. On the other hand, the trial court was not convinced by appellant's defense of frame-up and denial. Appellant failed to substantiate his claims that he was merely sleeping and was awakened by the screams of his relatives who were being mauled by the police officers.
DTaAHS

Appellant filed a Notice of Appeal on 10 March 2004. 13 With the filing thereof, the trial court directed the immediate transmittal of the entire records of the case to us. 14 However, pursuant to our ruling in People v. Mateo, 15 the case was remanded to the Court of Appeals for appropriate action and disposition. 16 On 28 May 2007, the Court of Appeals affirmed the trial court's decision but reduced the fine imposed on appellant to P500,000.00. It disposed of the case as follows:

WHEREFORE, the appeal is DISMISSED and the decision dated March 8, 2004 of the RTC, Branch 78, Malolos, Bulacan, in Criminal Case No. 3437-M-02, finding accused-appellant Norberto del Monte guilty beyond reasonable doubt of Violation of Section 5, Article II, Republic Act No. 9165, and sentencing him to suffer the penalty of life imprisonment is AFFIRMED with the MODIFICATION that the amount of fine imposed upon him is reduced from P5,000,000.00 to P500,000.00. 17

A Notice of Appeal having been timely filed by appellant, the Court of Appeals forwarded the records of the case to us for further review. 18 In our Resolution 19 dated 10 December 2007, the parties were notified that they may file their respective supplemental briefs, if they so desired, within 30 days from notice. Both appellant and appellee opted not to file a supplemental brief on the ground they had exhaustively argued all the relevant issues in their respective briefs and the filing of a supplemental brief would only contain a repetition of the arguments already discussed therein. Appellant makes a lone assignment of error:
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE INADMISSIBILITY OF THE EVIDENCE AGAINST HIM FOR FAILURE OF THE ARRESTING OFFICERS TO COMPLY WITH SECTION 21 OF R.A. 9165. 20

Appellant anchors his appeal on the arresting policemen's failure to strictly comply with Section 21 of Republic Act No. 9165. He claims that pictures of him together with the alleged confiscated shabu were not taken immediately upon his arrest as shown by the testimony of the lone prosecution witness. He adds that PO1 Tolentino and PO1 Antonio Barreras, the police officers who had initial custody of the drug allegedly seized and confiscated, did not conduct a physical inventory of the same in his presence as shown by their joint affidavit of arrest. Their failure to abide by said section casts doubt on both his arrest and the admissibility of the evidence adduced against him.
CEDScA

At the outset, it must be stated that appellant raised the police officers' alleged non-compliance with Section 21 21 of Republic Act No. 9165 for the first time on appeal. This, he cannot do. It is too late in the day for him to do so. In People v. Sta. Maria 22 in which the very same issue was raised, we ruled:

The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers' alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal. (Emphases supplied.)

In People v. Pringas, 23 we explained that non-compliance with Section 21 will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused. In the case at bar, appellant never questioned the custody and disposition of the drug that was taken from him. In fact, he stipulated that the drug subject matter of this case was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan for laboratory examination which examination gave positive result for methamphetamine hydrochloride, a dangerous drug. We thus find the integrity and the evidentiary value of the drug seized from appellant not to have been compromised. We would like to add that non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. One example is that provided in Section 31 of Rule 132 of the Rules of Court wherein a party producing a document as genuine which has been altered and appears to be altered after its execution, in a part material to the question in dispute, must account for the alteration. His failure to do so shall make the document inadmissible in evidence. This is clearly provided for in the rules.
HCSDca

We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight evidentiary merit or probative value to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. 24 What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. 25 All these elements have been shown in the instant case. The prosecution clearly showed that the sale of the drugs actually happened and that the shabu subject of the sale was brought and identified in court. The poseur buyer positively identified appellant as the seller of the shabu. Per Chemistry Report No. D-7282002 of Forensic Chemical Officer Nellson Cruz Sta. Maria, the substance, weighing 0.290 gram, which was bought by PO1 Tolentino from appellant in consideration of P300.00, was examined and found to be methamphetamine hydrochloride (shabu). In the case before us, we find the testimony of the poseur-buyer, together with the dangerous drug taken from appellant, more than sufficient to prove the crime charged. Considering that this Court has access only to the cold and impersonal records of the proceedings, it generally relies upon the assessment of the trial court, which had the distinct advantage of observing the conduct and demeanor of the witnesses during trial. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses having heard their testimonies and observed their deportment and manner of testifying during the trial. 26 The rule finds an even more stringent application where said findings are sustained by the Court of Appeals. 27 Finding no compelling reason to depart from the findings of both the trial court and the Court of Appeals, we affirm their findings.

Appellant denies selling shabu to the poseur-buyer insisting that he was framed, the evidence against him being "planted", and that the police officers were exacting P15,000.00 from him.
cDaEAS

In the case at bar, the evidence clearly shows that appellant was the subject of a buy-bust operation. Having been caught in flagrante delicto, his identity as seller of the shabu can no longer be doubted. Against the positive testimonies of the prosecution witnesses, appellant's plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail. 28 Frame-up, like alibi, is generally viewed with caution by this Court, because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecutions of violations of the Dangerous Drugs Act. 29 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner. 30 This, appellant failed to do. The presumption remained unrebutted because the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive. The presentation of his common-law wife, Amelia Mendoza, and his nephew, Alejandro Lim, to support his claims fails to sway. We find both witnesses not to be credible. Their testimonies are suspect and cannot be given credence without clear and convincing evidence. Their claims, as well as that of appellant, that they were maltreated and suffered injuries remain unsubstantiated. As found by the trial court:
The accused, on the other hand, in an effort to exculpate himself from liability raised the defense of frame-up. He alleged that at the time of the alleged buy bust he was merely sleeping at the house of his sister. That he was awakened by the yells and screams of his relatives as they were being mauled by the police officers. However, this Court is not convinced. Accused failed to substantiate these claims of maltreatment even in the face of his wife's and nephew's testimony. No evidence was presented to prove the same other than their self-serving claims. 31

Moreover, we agree with the observation of the Office of the Solicitor General that the witnesses for the defense cannot even agree on what time the arresting policemen allegedly arrived in their house. It explained:
To elaborate, appellant testified that it was 3 o'clock in the afternoon of December 10, 2002 when he was roused from his sleep by the policemen who barged into the house of his sister (TSN, July 7, 2003, p.

2). His common-law wife, however, testified that it was 10-11 o'clock in the morning when the policemen came to the house (TSN, Oct. 13, 2003, p. 6). On the other hand, Alejandro Lim testified that he went to sleep at 11 o'clock in the morning and it was 10 o'clock in the morning when the policemen arrived (TSN, Feb. 2, 2004, p. 6). He thus tried to depict an absurd situation that the policemen arrived first before he went to sleep with appellant. 32
aITECD

Having established beyond reasonable doubt all the elements constituting the illegal sale of drugs, we are constrained to uphold appellant's conviction. The sale of shabu is penalized under Section 5, Article II of Republic Act No. 9165. Said section reads:
SEC. 5.Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

Under said law, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00. For selling 0.290 gram of shabu to PO1 Tolentino, and there being no modifying circumstance alleged in the information, the trial court, as sustained by the Court of Appeals, correctly imposed the penalty of life imprisonment in accordance with Article 63 (2) 33 of the Revised Penal Code.

As regards the fine to be imposed on appellant, the trial court pegged the fine at P5,000,000.00 which the Court of Appeals reduced to P500,000.00. Both amounts are within the range provided for by law but the amount imposed by the Court of Appeals, considering the quantity of the drugs involved, is more appropriate. WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May 2007, sustaining the conviction of appellant Norberto Del Monte, a.k.a. Obet, for

violation of Section 5, Article II of Republic Act No. 9165, is hereby AFFIRMED. No costs. SO ORDERED.

THIRD DIVISION
[G.R. No. 170234. February 8, 2007.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO F. NICOLAS, accused-appellant. DECISION CHICO-NAZARIO, J :
p

Assailed before Us is the decision 1 of the Court of Appeals in CA-G.R. CR-H.C. No. 01191 dated 23 August 2005 which affirmed in toto the decision 2 of the Regional Trial Court (RTC) of Pasig City, Branch 164, in Criminal Case No. 11566D, finding accused-appellant Bernardo Felizardo Nicolas, a.k.a. Bernie, guilty of violation of Section 5, 3 Article II of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002. In an Information dated 7 August 2002, accused-appellant Bernardo Felizardo Nicolas, a.k.a. Bernie, was charged with Violation of Section 5, Article II of Republic Act No. 9165, the accusatory portion thereof reading:
On or about August 6, 2002, in Pasig City and within the jurisdiction of this Honorable Court, the accused, who is not being authorized by law, did, then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Danilo S. Damasco, one (1) heat-sealed transparent plastic sachet containing 0.42 gram of white crystalline substance which was found positive to the test for methamphetamine hydrochloride (shabu), a dangerous drug, in violation of the said law. 4

The case was raffled to Branch 164 of the RTC of Pasig City and docketed as Criminal Case No. 11566-D.

When arraigned on 30 September 2002, appellant, assisted by counsel de oficio, pleaded "Not Guilty" to the charge. 5The Pre-Trial Conference of the case was terminated on the same day. Thereafter, the case was heard. The prosecution presented two witnesses: PO2 Danilo S. Damasco 6 and SPO2 Dante Zipagan, 7 both members of the Station Drug Enforcement Unit of the Pasig Police Station. The testimony of Police Inspector Delfin A. Torregoza, Forensic Chemical Officer, Eastern Police District Crime Laboratory Office, was, however, dispensed with after both prosecution and defense stipulated that the specimen 8 submitted in court is the same one mentioned in the Request for Laboratory Examination 9 and in Chemistry Report No. D-1501-02E, 10 and that same was regularly examined by said forensic chemical officer.
acHITE

For the defense, appellant 11 took the witness stand together with his commonlaw wife, Susan dela Cruz Villasoto, 12and brother, Jose Nicolas. 13 The diametrical versions of the People and the accused are narrated by the trial court as follows:
VERSION OF THE PEOPLE On August 6, 2002, at about 9:30 o'clock in the evening, a confidential informant stepped inside the office of the Station Drug Enforcement Unit of the Pasig Police Station, Pasig City and informed SPO4 Numeriano S. De Lara, Officer In-Charge of that unit, that a certain alias Bernie was selling shabu at his place along Santiago Street, in Barangay Bagong Ilog, Pasig City. Immediately, SPO4 De Lara organized a team to conduct a surveillance operation and the entrapment of alias Bernie, if warranted by the situation. The team was composed of PO2 Danilo S. Damasco, PO2 Montefalcon, PO2 Orig and SPO2 Zipagan who was the team leader. PO2 Damasco was designated to act as poseur-buyer in the buy-bust operation while the other police officers would serve as his back-ups to assist in the possible apprehension of alias Bernie. After a short briefing, the team of police operatives, including the confidential informant, proceeded to the target place at Santiago Street, Bagong Ilog, Pasig City. SPO2 Dante Zipagan, the team leader, instructed the confidential informant to first check and look for the whereabouts of alias Bernie. The informant, after five minutes, returned and informed the team that he found alias Bernie in front of his house and the team decided to proceed with the planned entrapment of alias Bernie. PO2 Damasco and the informant then walked towards the house of alias Bernie while the back-up police officers placed themselves strategically in different positions where they could see PO2 Damasco and the

informant in the act of negotiating with alias Bernie. PO2 Damasco and the informant saw alias Bernie conversing with a male person in front of his house. After the informant greeted alias Bernie, he introduced PO2 Damasco to alias Bernie whose real name is Bernardo Nicolas, the accused herein, as a user of shabu and would like now to buy some Php500.00 worth of the substance from him. Alias Bernie, responded that he still had one piece of that stuff and was willing to sell it to poseur-buyer Damasco. Accused asked for the money which was premarked by Damasco with initials DSD (Exh. D-1) which stands for the name of Danilo S. Damasco. Damasco then handed the five hundred peso bill (Exh. D) to accused who accepted it. Accused, in return, gave Damasco one plastic sachet containing white crystalline substance which looked like that of shabu. For a moment, PO2 Damasco examined the plastic sachet and its content and then announced to the accused he was a police officer and arresting him for violation of the drugs law. Accused Bernardo Nicolas alias Bernie got shocked and surprised. As Damasco was holding the accused, the back-up officers arrived and assisted him in handling the accused. Damasco recovered the buy-bust money and the police team took him away to their station, where he was turned over to a police investigator together with the small plastic sachet of suspected shabu that Damasco had purchased from the accused. SPO4 Numeriano S. De Lara sent the small plastic sachet containing white crystalline substance which was then marked with EXH.-A BFN/080602 to the Eastern Police District Crime Laboratory Office at St. Francis St., Mandaluyong City, as per his letter memorandum dated August 6, 2002 (Exhs. B and B-1). The specimen was received at the EPD Crime Laboratory office by P/Insp. Delfin Torregoza, a Forensic Chemical Officer, who weighed and examined the specimen which he found to contain 0.42 gram of white crystalline substance which was tested positive for methamphetamine hydrochloride as per his Chemistry Report No. D-1501-02E (Exhs. C and C-1). Accused Bernardo F. Nicolas was consequently charged with Violation of Section 5, Article II of R.A. 9165. VERSION OF DEFENSE xxx xxx xxx [Appellant] testified that on August 6, 2002 at about 10:00 o'clock in the evening, he was outside of his house conversing with his brother, Jose Nicolas, and a friend named Arnold Mendez. He had just came (sic) out of his house in order to close the billiard salon that he owned. As they were then huddled in animated conversation, two motor vehicles stopped in front of his billiard parlor, a car and a van. The passengers of

the van alighted and one of them pointed a gun at him. As accused was not familiar with the men, he could not recognize them. He learned, later on, that the man who poked a gun at him was PO2 Danilo Damasco who was accompanied by other persons numbering about four or five of them. Damasco warned him not to move, holding and waiving in his hand a plastic sachet which Damasco said he bought from accused Bernardo Nicolas. The police officers then proceeded to put handcuffs on the hands of the accused, in spite of his protest denying anything to do with the plastic sachet of alleged shabu being displayed by Damasco. The police officers also handcuffed and arrested Arnold Mendez. Jose Nicolas did not allow himself to be arrested and handcuffed. When he sensed that he would be handcuffed, he immediately fled and ran into his house, locking himself in. Luckily for him, the police officers did not pursue him any longer. He just watched the incident by peeping through the window of his house. Accused Bernardo Nicolas alias Bernie and Arnold Mendez, were then forced into the police vehicle and taken to the police station, although Nicolas showed resistance which forced the police officers to physically carry him into their vehicle. Accused Bernard Nicolas was then charged with Violation of Section 5, Article II, R.A. 9165.
TDCaSE

Appellant denies the charge. He insists that there was no buy-bust operation and that the shabu (methamphetamine hydrochloride) allegedly sold by him to the poseur buyer was planted evidence. He claims that the trumped-up charge is a way of getting even with him because he, together with his wife, had filed a case before the National Police Commission (NAPOLCOM) for grave misconduct against several policemen (PO2 Joel Tapec, PO1 Christopher Semana and five John Does) assigned at the Station Drug Enforcement Unit of the Pasig Police Station, for entering and robbing their house on 5 February 2002. He further claims that the policemen who arrested him for allegedly selling shabu were the John Does mentioned in the complaint he and his wife filed with the NAPOLCOM. In its decision dated 8 October 2003, the trial court found appellant guilty beyond reasonable doubt of the crime charged and sentenced him to life imprisonment. The dispositive portion of the decision reads:
WHEREFORE, the court finds accused BERNARDO F. NICOLAS GUILTY beyond reasonable doubt, as principal of violation of Section 5, Article II, R.A. 9165 and hereby imposes upon him the penalty of life imprisonment and a fine of five hundred thousand pesos (P500.00), 14 with the accessory penalties provided under Section 35 thereof. 15

From the decision, appellant filed a Notice of Appeal informing the court that he is appealing the same to the Court of Appeals. 16 Though the Notice of Appeal specified that the decision is being appealed to the Court of Appeals, the trial court nonetheless forwarded the records of the case to the Supreme Court pursuant to Section 3, Rule 122 of the Rules of Court. 17 On 22 November 2004, appellant filed an appellant's brief before the Supreme Court. On 31 March 2005, the Office of the Solicitor General filed the People's brief. 18

Since the penalty imposed by the trial court was life imprisonment, the case was remanded to the Court of Appeals for appropriate action and disposition pursuant to our ruling in People v. Mateo. 19 On 23 August 2005, the Court of Appeals rendered its decision affirming in full the decision of the trial court. 20 Appellant filed a Notice of Appeal assailing the decision before the Supreme Court. 21 With the elevation of the records of the case to the Supreme Court, the parties were required to submit their respective supplemental briefs, if they so desire, within 30 days from notice. 22 The parties opted not to file supplemental briefs on the ground that they have fully argued their positions in their respective briefs. 23 Appellant assigns as errors the following:
I. THE TRIAL COURT GRAVELY ERRED IN GIVING FAITH AND CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN TOTALLY DISREGARDING THE VERSION OF THE DEFENSE. II. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

Appellant observed that (1) the policemen did not conduct surveillance first; (2) they did not have any agreement as regards the money to be used in buying

the shabu; and (3) they failed to talk about any signal to inform the back-up policemen that the transaction has been consummated. He contends that the absence of these things is unusual and that it made even more doubtful that the buy-bust operation really took place. These observations will not purge him of the charge. Settled is the rule that the absence of a prior surveillance or test-buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. 24 A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment. 25Flexibility is a trait of good police work. 26 In the case at bar, the buy-bust operation was conducted without need of any prior surveillance for the reason that the informant accompanied the policemen to the person who is peddling the dangerous drugs.
CDaTAI

Appellant faults the policemen because there was no agreement or discussion among themselves as regards the marked money and the pre-arranged signal. From the records, it is clear that it was PO2 Damasco who prepared the marked money 27 as shown by his initials on the top right corner of the P500.00 bill that was used in purchasing the shabu from appellant. 28 The fact that the team leader and the other members of the team did not discuss or talk about the marked money does not necessarily mean that there was no buy-bust operation. As explained by SPO2 Zipagan, since PO2 Damasco was the designated poseur buyer it was the latter's discretion as to how to prepare the marked money. It is not required that all the members of the buy-bust team know how the marked money is to be produced and marked inasmuch as they have their respective roles to perform in the operation. As this Court sees it, the other members of the team left the matter of the marked money to one person the poseur buyer because it was he who was to deal directly with the drug pusher. As to the absence of a pre-arranged signal, same is not fatal to the cause of the prosecution. The employment of a pre-arranged signal, or the lack of it, is not indispensable in a buy-bust operation. What determines if there was, indeed, a sale of dangerous drugs is proof of the concurrence of all the elements of the offense. A buy-bust operation is a form of entrapment which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law.29 The elements necessary for the prosecution of illegal sale of drugs are (1)

the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefore. 30 What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. 31 In the case under consideration, all these elements have been established. The witnesses for the prosecution clearly showed that the sale of the drugs actually happened and that the shabu subject of the sale was brought and identified in court. The poseur buyer (PO2 Damasco) categorically identified appellant as the seller of the shabu. His testimony was corroborated by SPO2 Zipagan. Per Chemistry Report No. D-1501-02E of Police Inspector Delfin A. Torregoza, the substance, weighing 0.42 gram, which was bought by PO2 Damasco from appellant in consideration of P500.00, was examined and found to be methamphetamine hydrochloride (shabu).
ASHaTc

We quote the material portions of the testimony of the poseur buyer that detailed the apprehension of appellant, as follows:
A:And we briefed and after a short briefing we proceeded to the alleged residence of Bernie and when we reached the place, I particularly saw the subject person in front of the alleged house. Q:You said we, whom are you referring to as those who went with you to the house of Bernie? A:The confidential informant. Q:After reaching the house of Bernie, what happened there? A:I saw the subject person infront of his alleged house talking to another male person. Q:What was the general condition of that place outside the house of Bernie when you saw him? A:Dim light, sir. Q:After you first saw Bernie talking with somebody else, what did you do?

A:The confidential informant greeted alias Bernie and after greeting said person the other male person he was talking to went farther from us and they conversed. Q:And after that conversation between your informant and Bernie, what happened? A:The confidential informant introduced me as a shabu user and as a customer. Q:How far were you from Bernie when you were introduced? A:Only two (sic) away. Q:Less than a meter? A:Yes, sir. Q:What was the response of Bernie as you were introduced as a shabu user? A:He checked my personality first and he asked me if I will get the stuff, he asked me in tagalog, kukuha ka ba? Q:And what did you tell him? A:I answered him, kung mayroon kukuha ako. Q:And what was his answer? A:He answered me that, mayroon kaya tamang-tama kasi isa na lang itong natitira sa akin panggamit ko sana. Q:At that very moment, after you were told by Bernie isa na lang ang natitira, what did you? A:I asked him kung puwede pang bilhin and then he told me, isa na lang ito panggamit ko, magkano ba ang kukunin mo? Q:What was your answer? A:I told him, P500.00 worth. Q:And what is [his] reply?
ADcHES

A:Okay, ibibigay ko na lang sa inyo. Q:And what happened next? A:He asked my payment first. Q:And what did you do after he asked your payment? A:I gave him the pre-marked money. Q:What (sic) that bill made of? A:P500.00 bill. Q:Where did you put that marking in that bill? A:I put the marking on the upper right portion of the bill inside the 500. Q:What are the markings did you put there? A:I put my initials DSD. Q:Now after you gave him that P500.00 marked money, what else happened? A:After he received the pre-marked money then he gave me one (1) plastic sachet containing white crystalline substance after receiving said I examined the plastic sachet.
HcTEaA

Q:After that examination of yours, what did you do? A:After a brief examination immediately I introduced myself as a police officer and subsequently, arrested alias Bernie. Q:After you introduced yourself as a police officer, what was the reaction of alias Bernie? A:He was shocked, sir. Q:Did he tell you anything? A:None, sir. Q:And what did you do after arresting him immediately?

A:After informing his constitutional right I recovered the pre-marked money. Q:You mean, you frisked him, Mr. Witness? A:Yes, sir. Q:What else did you recover from him aside from the mark money? A:Nothing more.
32

Appellant tries to discredit PO2 Damasco and SPO2 Zipagan by showing an inconsistency in their testimonies regarding the condition of the scene of the incident. He points out that PO2 Damasco stressed that the place was dark while SPO2 Zipagan said that the area was well-lighted. 33 After going over the testimonies of the two police operatives, we find no inconsistency in their testimonies. When asked about the general condition of the place outside the house of appellant, PO2 Damasco answered "dim light." 34 On the other hand, SPO2 Zipagan said the place was "a lighted area." 35 PO2 Damasco did not say that the place was dark nor did SPO2 Zipagan say that the place was well-lighted. What is clear is that the place was lighted. Thus, since both witnesses said that the place was lighted, the inconsistency is more apparent than real. Even assuming ad arguendothat this can be considered an inconsistency, same is trivial to adversely affect their credibility. We now go to appellant's contention that the policemen who arrested him were impelled by improper motive. He argues that he was merely talking to his brother and a friend when the policemen suddenly arrived and insisted that he had soldshabu to PO2 Damasco. He claims that the charge against him was driven by the policemen's desire to get even with him for filing a case for grave misconduct against the said policemen with the NAPOLCOM. He added that the trial court should have considered the motive as to why he was charged and that the possibility of vengeance is not remote. We find appellant's imputation of ill motive on the police officers to be unsubstantiated by clear and convincing evidence. We agree in the trial court's ruling when it said:

The evidence does not show that Damasco and Zipagan were moved by ill-will in testifying against the accused. There was no ill feeling or personal animosity existing between the police officers and the accused at the time of the latter's arrest. It is true that accused Bernardo F. Nicolas and his common-law wife Susan Dela Cruz Villasoto filed an administrative case against PO2 Joel Tapec and PO1 Christopher Semana, both of the Pasig City Police Station for grave misconduct before the National Police Commission which is docketed as ADM CASE No. 2003-008 (NCR). But the filing of this case against Tapec and Semana is not enough reason for Damasco and Zipagan to fabricate or plant evidence against the accused. There was absolutely no reason at all for them to risk their lives and career to go and plant evidence against the accused which is in violation of Section 29 of R.A. 9165 that imposes upon any person found guilty of planting any dangerous drug regardless of quantity and purity, the penalty of death. These police officers are presumed to know this law and the court believes that these police officers do not wish to lose their lives by fabricating evidence against innocent individuals. Accused Bernardo Nicolas, naturally, was expected to deny the accusation against him, for admission would automatically result in conviction. The testimony of his common-law wife, Susan Dela Cruz Villasoto is not much of help to the accused'[s] defense. Since she did not witness what transpired when accused went out of the house in the evening of August 6, 2002. All that she substantially testified to was that she heard shouting outside of their house and saw three persons forcibly carrying her husband to the other side of the road. (TSN, July 7, 2003, p. 4). Witness Jose F. Nicolas, to the mind of the court is not a credible witness. He claimed he was present at the time accused was arrested. He said he fled in order to avoid being handcuffed and arrested by the police when his brother alias Bernie was arrested. He did not even visit his brother in jail. He talked to him only on August 25, 2003 to discuss with him his testimony in court. (TSN, September 15, 2003, p. 13). Being accused's close relative, Jose Nicolas is expected to testify favorably in behalf of the accused whose testimony, of course, is not sufficient to overthrow the strength and weight of the testimonies of the police officers Damasco and Zipagan. 36

We likewise find appellant's declaration that the policemen who arrested him were the very same ones who robbed his house on 5 February 2002 to be a mere afterthought in order that he may justify his claim of improper motive on the part of the policemen. How convenient, indeed, it is for him to make such a declaration. From the time of the alleged break-in in his house on 5 February 2002 until the time he was arrested on 6 August 2002 for selling shabu, he never lifted a finger to try and find out the identities of the alleged five John Does mentioned in his complaint with the NAPOLCOM. He could have easily gone to

the Station Drug Enforcement Unit of the Pasig Police Station, but this he did not do. Only when he was arrested during an entrapment operation did he make such a claim. The timing thereof renders such declaration very dubious and unreliable.
SIEHcA

Appellant's contention that he was framed-up is made even more suspect by the fact that the statement 37 of his common-law wife that he had gone out of the house for only two minutes when the policemen arrived and took him away is belied by the statement 38 of his brother that he had been outside the house for 30 minutes and was talking with his brother and Arnold Mendez when the policemen arrived. Frame-up, like alibi, is generally viewed with caution by this Court, because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecutions of violations of the Dangerous Drugs Act. 39 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner. 40 In the case at bar, the presumption remained uncontradicted because the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive. Prosecutions involving illegal drugs largely depend on the credibility of the police officers who conducted the buy-bust operation. Considering that this Court has access only to the cold and impersonal records of the proceedings, it generally relies upon the assessment of the trial court, which had the distinct advantage of observing the conduct and demeanor of the witnesses during trial. Hence, factual findings of the trial courts are accorded respect absent any showing that certain facts of weights and substance bearing on the elements of the crime have been overlooked, misapprehended or misapplied. 41 We have no reason to deviate from this rule. We affirm the factual findings of the trial court as affirmed by the Court of Appeals. The evidence presented by the prosecution proves to a moral certainty petitioner's guilt of the crime of selling dangerous drugs. The sale of shabu is penalized under Section 5, Article II of Republic Act No. 9165. Said section reads:
SEC. 5.Sale, Trading, Administration, Dispensation, Delivery, Distribution

and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. The penalty of life imprisonment to death

and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person,

who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.
AaSIET

Under said law, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00. For selling 0.42 gram of shabu to PO2 Damasco, the trial court, as sustained by the Court of Appeals, imposed the penalty of life imprisonment and a fine of P500,000.00 in accordance with Article 63(2) 42 of the Revised Penal Code. Section 98 of Republic Act No. 9165, however, provides for the limited application of the provisions of the Revised Penal Code on said law. This Section reads:
SEC. 98.Limited Applicability of the Revised Penal Code. Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. (Underscoring supplied.)

With the aforesaid section, the provisions of the Revised Penal Code shall no longer apply to the provisions of the Drugs law except when the offender is a minor. Thus, Article 63(2) of the Revised Penal Code shall not be used in the determination of the penalty to be imposed on the accused. Since Section 98 of the Drugs Law contains the word "shall," the non-applicability of the Revised Penal Code provisions is mandatory, subject only to the exception in case the offender is a minor. In the imposition of the proper penalty, the courts, taking into account the circumstances attendant in the commission of the offense, are given the discretion to impose either life imprisonment or death, and the fine as provided for by law. In light, however, of the effectivity of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death has been prohibited. Consequently, the penalty to be meted on appellant shall only be life imprisonment and fine. Hence, the penalty of life imprisonment and a fine of P500,000.00 were properly imposed on the accused-appellant.

WHEREFORE, premises considered, the instant appeal is DISMISSED. The decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01191 dated 23 August 2005 which affirmed in toto the decision of the Regional Trial Court of Pasig City, Branch 164, in Criminal Case No. 11566-D, finding accused-appellant Bernardo Felizardo Nicolas, a.k.a. Bernie, guilty of violation of Section 5, Article II of Republic Act No. 9165, is hereby AFFIRMED.
aCATSI

SO ORDERED.

EN BANC
[G.R. No. 152259. July 29, 2004.] ALFREDO T. ROMUALDEZ, petitioner, vs. The Honorable SANDIGANBAYAN (Fifth Division) and the PEOPLE of the PHILIPPINES, respondents. DECISION PANGANIBAN, J :
p

Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial, however they may be named or identified whether as a motion to quash or motion to dismiss or by any other nomenclature delay the administration of justice and unduly burden the court system. Grounds not included in the first of such repetitive motions are generally deemed waived and can no longer be used as bases of similar motions subsequently filed. Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who intervene, directly or indirectly, in any business, transaction, contract or application with the Government. This provision is not vague or impermissibly broad, because it can easily be understood with the use of simple statutory construction. Neither may the constitutionality of a criminal statute such as this be challenged on the basis of the overbreadth and the void-for-vagueness doctrines, which apply only to free-speech cases.

The Case

Before us is a Petition for Certiorari 1 under Rule 65 of the Rules of Court, seeking to set aside the November 20, 2001 2and the March 1, 2002 3 Resolutions of the Sandiganbayan in Criminal Case No. 13736. The first Resolution disposed thus:
WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment of the accused and the pre-trial of the case shall proceed as scheduled. 4

The second Resolution denied reconsideration.

The Facts
The facts of the case are narrated by the Sandiganbayan as follows:
[The People of the Philippines], through the Presidential Commission on Good Government (PCGG), filed on July 12, 1989 an information before [the anti-graft court] charging the accused [with] violation of Section 5, Republic Act No. 3019, 5 as amended. The Information reads: That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro Manila, Philippines, and within the jurisdiction of [the Sandiganbayan], said [petitioner], brother-inlaw of Ferdinand E. Marcos, former President of the Philippines, and therefore, related to the latter by affinity within the third civil degree, did then and there wil[l]fully and unlawfully, and with evident bad faith, for the purpose of promoting his self-interested [sic] and/or that of others, intervene directly or indirectly, in a contract between the National Shipyard and Steel Corporation (NASSCO), a government-owned and controlled corporation and the Bataan Shipyard and Engineering Company (BASECO), a private corporation, the majority stocks of which is owned by former President Ferdinand E. Marcos, whereby the NASSCO sold, transferred and conveyed to the BASECO its ownership and all its titles and interests over all equipment and facilities including structures, buildings, shops, quarters, houses, plants and expendable and semi-expendable assets, located at the Engineer Island known as the Engineer Island Shops including some of its equipment and machineries from Jose Panganiban, Camarines Norte needed by BASECO in its shipbuilding and ship repair program for the amount of P5,000,000.00. Contrary to law.

On December 27, 1996, the accused filed his first MOTION TO DISMISS AND TO DEFER ARRAIGNMENT claiming that no valid preliminary investigation was conducted in the instant case. He asserts that if a preliminary investigation could be said to have been conducted, the same was null and void having been undertaken by a biased and partial investigative body. On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving the accused fifteen days to file a Motion for Reinvestigation with the Office of the Special Prosecutor. [Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and Prohibition with prayer for temporary restraining order. On January 21, 1998, the Supreme Court dismissed the petition for failure to show that [the Sandiganbayan] committed grave abuse of discretion in issuing the assailed order. On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a Motion to Quash. On September 22, 1999, . . . Special Prosecution Officer (SPO) III Victorio U. Tabanguil, manifested that the prosecution had already concluded the reinvestigation of the case. He recommended the dismissal of the instant case. Both the Deputy Special Prosecutor and the Special Prosecutor approved the recommendation. However, Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in Court. Subsequently, [petitioner] filed on October 8, 1999 his second MOTION TO QUASH AND TO DEFER ARRAIGNMENT. On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit. On June 19, 2001, [the] accused filed a MOTION FOR LEAVE TO FILE MOTION TO DISMISS. On June 29, 2001, the [Sandiganbayan] admitted the motion and admitted the attached (third) Motion to Dismiss. The [Motion to Dismiss] raise[d] the following grounds: I.THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER] WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION STAGE IN THE FOLLOWING WAYS:

A.NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE INSTANT CASE; AND B.THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED AND PARTIAL INVESTIGATOR II.THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS VIOLATED III.PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION IV.THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY PRESCRIPTION 6

Ruling of the Sandiganbayan

The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had already been raised by him and passed upon in its previous Resolutions. 7 In resolving the third ground, the anti-graft court pointed out that Section 17 of the 1973 Constitution became effective only in 1981 when the basic law was amended. Since his alleged illegal intervention had been committed on or about 1975, the amended provision was inapplicable to him. 8 In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the other grounds he had raised. It ruled that his right to a preliminary investigation was not violated, because he had been granted a reinvestigation. 9 It further held that his right to be informed of the nature and cause of the accusation was not trampled upon, either, inasmuch as the Information had set forth the essential elements of the offense charged. 10 Hence, this Petition.
11

The Issues
In his Memorandum, petitioner assigns the following errors for our consideration:
CAIHaE

Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion amounting to lack of, or in excess of jurisdiction

I.In not dismissing and/or quashing Criminal Case No. 13736 despite clear and incontrovertible evidence that: A.Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness violates the due process right of an individual to be informed of the nature and the cause of the accusation against him; B.Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due process right of an individual to be presumed innocent until the contrary is proved; C.The constitutional right of petitioner . . . to be informed of the nature and the cause of the accusation against him was violated; D.The constitutional right to due process of law of petitioner . . . was violated during the preliminary investigation stage in the following ways: [i]No valid preliminary investigation was conducted for Criminal Case No. 13736; and [ii]The preliminary investigation was conducted by a biased and partial investigator. E.The criminal action or liability has been extinguished by prescription; and F.Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner . . . is immune from criminal prosecution. And II.In light of the foregoing, in denying petitioner[s] . . . right to equal protection of the laws. 12

Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether the criminal action or liability has been extinguished by prescription; and (5) whether petitioner is immune from criminal prosecution under then Section 17 of Article VII of the 1973 Constitution.

The Courts Ruling

The Petition has no merit.

First Issue: Constitutionality of Section 5, Republic Act 3019

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7, 2001 Motion for Reconsideration of the Order denying his Motion to Dismiss was this Supplemental Motion which was, in effect, his third motion to quash. 13 We note that the Petition for Certiorari before us challenges the denial of his original, not his Supplemental, Motion to Dismiss. Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a motion for reconsideration of the denial. Had reconsideration been turned down, the next proper remedy would have been either (1) a petition for certiorari 14 if there was grave abuse of discretion which should be filed within 60 days from notice of the assailed order; 15 or (2) to proceed to trial without prejudice to his right, if final judgment is rendered against him, to raise the same questions before the proper appellate court. 16 But instead of availing himself of these remedies, he filed a Motion to Dismiss on June 19, 2001.

Impropriety of Repetitive Motions

There is no substantial distinction between a motion to quash and a motion to dismiss. Both pray for an identical relief, which is the dismissal of the case. Such motions are employed to raise preliminary objections, so as to avoid the necessity of proceeding to trial. A motion to quash is generally used in criminal proceedings to annul a defective indictment. A motion to dismiss, the nomenclature ordinarily used in civil proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of Court use the term motion to quash in criminal, 17 and motion to dismiss in civil, proceedings. 18 In the present case, however, both the Motion to Quash and the Motion to Dismiss are anchored on basically the same grounds and pray for the same

relief. The hairsplitting distinction posited by petitioner does not really make a difference. By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A party is not permitted to raise issues, whether similar or different, by installment. The Rules abhor repetitive motions. Otherwise, there would be no end to preliminary objections, and trial would never commence. A second motion to quash delays the administration of justice and unduly burdens the courts. Moreover, Rule 117 provides that grounds not raised in the first motion to quash are generally deemed waived. 19 Petitioners Motion to Dismiss violates this rule.

Constitutionality of the Challenged Provision

If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However, given the importance of this case in curtailing graft and corruption, the Court will nevertheless address the other issues on their merit. Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act constituting the offense is allegedly vague and impermissibly broad. It is best to stress at the outset that the overbreadth 20 and the vagueness 21 doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. Mr. Justice Vicente V. Mendoza explained the reason as follows:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible chilling effect upon protected speech. The theory is that [w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity. The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if

facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.
xxx xxx xxx In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing on their faces statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. As has been pointed out, vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] as applied to a particular defendant. 22(emphasis supplied)

To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity. 23 While mentioned in passing in some cases, the void-forvagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, 24 the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec 25 decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec 26 held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness. Indeed, an on-its-face invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of actual case and controversy and permit decisions to be made in a sterile abstract context having no factual concreteness. InYounger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words: 27
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the

speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a manifestly strong medicine to be employed sparingly and only as a last resort. In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged. 28 As conduct not speech is its object, the challenged provision must be examined only as applied to the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness. The questioned provision reads as follows:
Section 5.Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession.

Petitioner also claims that the phrase to intervene directly or indirectly, in any business, transaction, contract or application with the Government is vague and violates his right to be informed of the cause and nature of the accusation against him. 29 He further complains that the provision does not specify what acts are punishable under the term intervene, and thus transgresses his right to be presumed innocent. 30 We disagree. Every statute is presumed valid. 31 On the party challenging its validity weighs heavily the onerous task of rebutting this presumption. 32 Any reasonable doubt

about the validity of the law should be resolved in favor of its constitutionality. 33To doubt is to sustain, as tersely put by Justice George Malcolm. In Garcia v. Executive Secretary, 34 the rationale for the presumption of constitutionality was explained by this Court thus:
The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted. 35

In the instant case, petitioner has miserably failed to overcome such presumption. This Court has previously laid down the test for determining whether a statute is vague, as follows:
. . . [A] statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 36 But the doctrine does

not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be saved by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. 37 With more reason, the doctrine cannot be

invoked where the assailed statute is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. 38 It must be stressed, however, that

the vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes.39 A simpler test was decreed in Dans v. People, 40 in which the Court said that there was nothing vague about a penal law that adequately answered the basic query What is the violation? 41 Anything beyond the hows and the whys are evidentiary matters that the law itself cannot possibly disclose, in view of the uniqueness of every case. 42 The question What is the violation? is sufficiently answered by Section 5 of RA 3019, as follows:
1.The offender is a spouse or any relative by consanguinity or affinity within the third civil degree of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives; and 2.The offender intervened directly or indirectly in any business, transaction, contract or application with the government.

Applicability of Statutory Construction

As to petitioners claim that the term intervene is vague, this Court agrees with the Office of the Solicitor General that the word can easily be understood through simple statutory construction. The absence of a statutory definition of a term used in a statute will not render the law void for vagueness, if the meaning can be determined through the judicial function of

construction. 43 Elementary is the principle that words should be construed in their ordinary and usual meaning.
. . . A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; 44 much less do we have to define every

word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act . . .
. . . [I]t is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, 45 unless it is evident that the legislature intended

a technical or special legal meaning to those words. 46 The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed. 47 The term intervene should therefore be understood in its ordinary acceptation, which is to to come between. 48Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 any person who intervenes in any manner in any business, transaction, contract or application with the government. As we have explained, it is impossible for the law to provide in advance details of how such acts of intervention could be performed. But the courts may pass upon those details once trial is concluded. Thus, the alleged vagueness of intervene is not a ground to quash the information prior to the commencement of the trial.
ASEcHI

In sum, the Court holds that the challenged provision is not vague, and that in any event, the overbreath and void for vagueness doctrines are not applicable to this case.

Second Issue: Allegedly Vague Information

Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that the Information itself is also unconstitutionally vague,

because it does not specify the acts of intervention that he supposedly performed. 49Again, we disagree. When allegations in the information are vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars. 50 The pertinent provision in the Rules of Court is Section 9 of Rule 116, which we quote:
Section 9.Bill of particulars. The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired.

The rule merely requires the information to describe the offense with sufficient particularity as to apprise the accused of what they are being charged with and to enable the court to pronounce judgment. 51 The particularity must be such that persons of ordinary intelligence may immediately know what is meant by the information. 52 While it is fundamental that every element of the offense must be alleged in the information, 53 matters of evidence as distinguished from the facts essential to the nature of the offense need not be averred. 54 Whatever facts and circumstances must necessarily be alleged are to be determined by reference to the definition and the essential elements of the specific crimes. 55 In the instant case, a cursory reading of the Information shows that the elements of a violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense committed by petitioner with such particularity as to enable him to prepare an intelligent defense. Details of the acts he committed are evidentiary matters that need not be alleged in the Information.

Third Issue: Preliminary Investigation

Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned before this Court in GR No. 128317 the Sandiganbayans Order giving him 15 days to file a Motion for Reinvestigation with the Office of the Special Prosecutor. 56 Citing Cojuangco v. Presidential Commission on Good Government, 57 he undauntedly averred that he was deprived of his right to a preliminary investigation, because the PCGG acted both as complainant and as investigator. 58

In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary investigation, the latter could not do so with the cold neutrality of an impartial judge in cases in which it was the agency that had gathered evidence and subsequently filed the complaint. 59 On that basis, this Court nullified the preliminary investigation conducted by PCGG and directed the transmittal of the records to the Ombudsman for appropriate action. It is readily apparent that Cojuangco does not support the quashal of the Information against herein petitioner. True, the PCGG initiated the present Complaint against him; hence, it could not properly conduct the preliminary investigation. However, he was accorded his rights the Sandiganbayan suspended the trial and afforded him a reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus followed. The Sandiganbayans actions are in accord also with Raro v. Sandiganbayan, 60 which held that the failure to conduct a valid preliminary investigation would not warrant the quashal of an information. If the information has already been filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while the preliminary investigation is being conducted or completed. 61

Fourth Issue: Prescription

The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the Sandiganbayan on October 8, 1999. 62 Such issue should be disregarded at this stage, since he failed to challenge its ruling debunking his Motion within the 60-day period for the filing of a petition for certiorari. A party may not circumvent this rule by filing a subsequent motion that raises the same issue and the same arguments. Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious. He points out that according to the Information, the offense was committed during the period from July 16, 1975 to July 29, 1975. He argues that when the Information was filed on July 12, 1989, 63 prescription had already set in, because the prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years from the time the offense was allegedly committed. The increase of this prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the enactment of Batas Pambansa Blg. 195. 64

Act No. 3326, as amended, 65 governs the prescription of offenses penalized by special laws. Its pertinent provision reads:
Sec. 2.Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

Consistent with the provision quoted above, this Court has previously reckoned the prescriptive period of cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from the discovery of the violation. 66 In Republic v. Desierto, the Court explained:
This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto. In the said recent case, the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President Fidel V. Ramos to investigate and to recover the so-called Behest Loans, where the Philippine Government guaranteed several foreign loans to corporations and entities connected with the former President Marcos . . . In holding that the case had not yet prescribed, this Court ruled that: In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of RA No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the beneficiaries of the loans. Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission. xxx xxx xxx

People v. Duque is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof,

i.e., discovery of the unlawful nature of the constitutive act or acts. (Italics supplied)

There are striking parallelisms between the said Behest Loans Case and the present one which lead us to apply the ruling of the former to the latter. First, both cases arose out of seemingly innocent business transactions;second, both were discovered only after the government created bodies to investigate these anomalous transactions; third, both involve prosecutions for violations of RA No. 3019; and, fourth, in both cases, it was sufficiently raised in the pleadings that the respondents conspired and connived with one another in order to keep the alleged violations hidden from public scrutiny. This Courts pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and instructive as to the date when the discovery of the offense should be reckoned, thus: In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetuate fraud against the government. The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions. Hence, the

counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed. 67

The above pronouncement is squarely applicable to the present case. The general rule that prescription shall begin to run from the day of the commission of the crime cannot apply to the present case. It is not legally prudent to charge the State, the aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged intervention was made. The accused is the late President Ferdinand E. Marcos brother-in-law. He was charged with intervening in a sale

involving a private corporation, the majority stocks of which was allegedly owned by President Marcos. Prior to February 1986, no person was expected to have seriously dared question the legality of the sale or would even have thought of investigating petitioners alleged involvement in the transaction. It was only after the creation 68 of PCGG 69 and its exhaustive investigations that the alleged crime was discovered. This led to the initiation on November 29, 1988 of a Complaint against former President Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from the discovery of the offense.

Fifth Issue Immunity from Prosecution

Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval officer specifically, as naval aide-de-camp of former President Marcos. 70 He relies on Section 17 of Article VII of the 1973 Constitution, as amended, which we quote:
The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. "xxx xxx xxx"

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the immunity amendment became effective only in 1981 while the alleged crime happened in 1975. In Estrada v. Desierto, 71 this Court exhaustively traced the origin of executive immunity in order to determine the extent of its applicability. We explained therein that executive immunity applied only during the incumbency of a President. It could not be used to shield a non-sitting President from prosecution for alleged criminal acts done while sitting in office. The reasoning of petitioner must therefore fail, since he derives his immunity from one who is no longer sitting as President. Verily, the felonious acts of public officials and their close relatives are not acts of the State, and the officer who acts illegally is not acting as such but stands on the same footing as any other trespasser.

In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in issuing the assailed Resolutions. 72 On the contrary, it acted prudently, in accordance with law and jurisprudence. WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the Sandiganbayan AFFIRMED. Costs against petitioner. SO ORDERED.
ECAaTS

Davide, Jr., C .J ., Quisumbing, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr. and Azcuna, JJ ., concur. Puno, Ynares-Santiago and Sandoval-Gutierrez, JJ ., concur in the result. Corona, J ., is on leave. Tinga, J ., concurs in the result. Please see separate opinion. Chico-Nazario, J ., took no part.
TINGA, J.: I concur in the result of the ponencia and the proposition that Section 5 of the Anti-Plunder Law. is constitutional. The validity of the provision has been passed upon by the Court before in Estrada v. Sandiganbayan. 1 I also agree with theponencia's reiteration of the ruling in. Estrada that Section 5 is receptive to the basic principle in statutory construction that words should be construed in their ordinary and usual meaning. 2 However, with all due respect, I raise serious objections to the ponencia's holding that the so-called "void for vagueness" doctrine has special application only to free speech cases, 3 and the undeclared proposition that penal laws may not be stricken down on the ground of ambiguity. 4 I am aware that the assertions rely upon the of the hereinponente 5 and Mr. Justice Vicente Mendoza 6 in Estrada. I am also aware that the critical portion of Mr. Justice Mendoza's separate opinion in Estrada was cited with approval by Mr. Justice Bellosillo's ponencia therein. 7 Still, I respectfully urge that the Court reexamine these contentions, which I humbly submit are flawed and contrary to fundamental principles of due process.
EHTSCD

The Bill of Rights occupies a position of primacy in the fundamental law. 8 It is thus sacrosanct in this jurisdiction that no person shall be deprived of life, liberty or property without due process of law. 9 A challenge to a penal statute premised on the argument that the law is vague is a proper invocation of the due ' process clause. A statute that lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the due process clause, for failure to accord persons fair notice of the conduct to avoid. 10 As held by the Court in People v. Dela Piedra: 11
Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its. penalties. A criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning. 12

It should also be reckoned that the Bill of Rights likewise guarantees that no person shall be held to answer for a criminal offense without due process of law, 13 and that the accused enjoys the right to be informed of the nature and cause of the accusation against him or her. 14 The Bill of Rights ensures the fullest measure of protection to an accused. If a particular mode of constitutional challenge, such as one predicated on "void for vagueness," is available to an ordinary person deprived of property or means of expression, then more so should it be accessible to one who is in jeopardy of being deprived of liberty or of life. 15

"Vagueness" and "Overbreadth" Are Distinct Concepts

Separate Opinions
A fundamental flaw, to my mind, in the analysis employed by the ponencia and some of the separate opinions in Estradais the notion that the "vagueness" and overbreadth" doctrines are the same and should be accorded similar treatment. This is erroneous.

Mr. Justice Kapunan, in his dissenting opinion in Estrada, offers a correct distinction between "vagueness" and "overbreadth":
A view has been proffered that "vagueness and overbreadth doctrines are not applicable to penal laws." These two concepts, while related, are distinct from each other. On one hand, the doctrine of overbreadth

applies generally to statutes that infringe upon freedom of speech. On the other hand, the "void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or other fundamental constitutional right. (not merely those that regulate speech or other fundamental constitutional rights.) The fact that a particular criminal

statute does not infringe upon free speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed. 16

This view should be sustained, especially in light of the fact that the "void for vagueness" doctrine has long been sanctioned as a means to invalidate penal statutes.

"Void For Vagueness" Invalidation of Penal Statutes has Long-Standing Jurisprudential History
As early as 1926, the United States Supreme Court held in Connally v. General Construction Co., thus: 17
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

Thus in Connally, a statute prescribing penalties for violation of an eight-hour workday law was voided, presenting as it did, a "double uncertainty, fatal to its validity as a criminal statute." 18 In Lanzetta v. State of New Jersey, 19 a challenge was posed to a statute defining a "gangster" and prescribing appropriate penalties, for being void for vagueness. The U.S. Supreme Court ruled that the definition of a "gang" under the statute was vague, and the statute void for vagueness. It was of no Moment that the information against the accused described the offense with particularity.

If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. (United States v. Reese, 92 U.S. 214, 221;Czarra v. Board of Medical Supervisors, 25 App. D.C. 443, 453.) It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. (See Stromberg v. California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A. L. R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666.) No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. 20 (Emphasis supplied)

In Bouie v. City of Columbia, 21 civil rights protesters were charged with violating a criminal trespass statute proscribing entry upon the lands of another after notice prohibiting such entry. A state court construed the statute as applicable to the act of remaining on the premises of another after receiving notice to leave. The U.S. Supreme Court reversed, applying again the void-for-vagueness doctrine. Said Court admitted that "typical applications of the principle, the uncertainty as to the statute's prohibition resulted from vague or overbroad language in the statute itself." 22 Yet the: Court noted that "[t]here can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." 23 Accordingly, the Court overturned the convictions, holding that "the crime for which [they] were convicted was not enumerated in the statute at the time of their conduct," thus denying the accused due process of law. 24 In Papachristou v. City of Jacksonville, 25 a statute penalizing vagrancy was voided by the U.S. Supreme Court, again for being vague:
This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," (United States v. Harriss, 347 U.S. 612, 617), and because it encourages arbitrary and erratic arrests and convictions (Thornhill v. Alabama, 310 U.S. 88;Herndon v. Lowry, 301 U.S. 242). 26

Kolender v. Lawson

involves another affirmation of the well-established doctrine. There, the US Supreme Court invalidated a loitering statute requiring a loiterer to produce credible and reliable identification when requested by a peace officer. It elucidated:
27

Although the doctrine focuses on both actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine "is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcements. Where the legislature foils to provide such minimal guidelines, a criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors and juries to pursue their personal predilections. 28

In the fairly recent case of City of Chicago v. Morales, 29 the U.S. Supreme Court affirmed a lower court ruling invalidating as void for vagueness an ordinance prohibiting "criminal street gang members" from loitering in public places, as well as the conviction based on the invalidated ordinance. The US Court again asserted:
For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." (See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982)). It is a criminal law that contains no mens rearequirement (see Colautti v. Franklin, 439 U. S. 379, 395 (1979)), and infringes on constitutionally protected rights (see id., at 391). When vagueness permeates the text of such a law, it is subject to'' facial attack. Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. (See Kolender v. Lawson, 461 U. S., at 357). 30

Given the wealth of jurisprudence invalidating penal statutes for suffering from the void-for-vagueness defect, it is mystifying why the notion that the doctrine applies only to "free-speech" cases has gained a foothold with this Court. It might be argued that the above-cited cases are foreign jurisprudence, inapplicable to this jurisdiction. Yet it is submitted that the rule is applicable here, not because of its repeated affirmation by American courts, but because such rule is lucidly consistent with our own fundamental notions of due process, as enunciated in our own Constitution.
What then is the standard of due process which must' exist both as a procedural and as substantive requisite to free the challenged ordinance, or any government action for that matter, from the imputation of legal infirmity; sufficient to spell its doom? It is responsiveness to the

supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reasons and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever branch" in the light of reason drawn from . considerations of fairness that reflect [democratic] traditions of legal and political thought." It is not a narrow or "technical conception with fixed content unrelated to time, place and circumstances," decisions based on such a clause requiring a "close and perceptive inquiry into fundamental principles of our society." 31

The dissent of Justice White, joined by Justice Rehnquist, in Kolender v. Lawson finds some kinship with Mr. Justice Mendoza's views in Estrada, insofar as they point out a distinction between the "vagueness" doctrine, as applied to criminal statutes, on one hand, and as applied to US First Amendment cases, on the other.
The usual rule is that the alleged vagueness of a criminal statute must be judged in light of the conduct that is charged to be violative of the statute. If the actor is given sufficient notice that his conduct is within the proscription of the statute, his conviction is not vulnerable on vagueness grounds, even if as applied to other conduct, the law would be unconstitutionally vague. None of our cases "suggests that one who has received fair warning of the criminality, of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." The correlative rule is. that a criminal statute is not unconstitutionally vague on its face unless it is "impermissibly vague in all of its applications."

These general rules are equally applicable to cases where First Amendment or other "fundamental" interests are involved. The Court has held that in such circumstances "more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression, a "greater degree of specificity" is demanded than in other contexts. But the difference in such cases "relates to how strict a test of

vagueness shall be applied in judging a particular criminal statute." It does not permit the challenger of the statute to confuse vagueness and overbreadth by attacking the enactment as being vague as applied to conduct other than his own. Of course, if his own actions are themselves

protected by the First Amendment or other constitutional provision, or if the statute does not fairly warn that it is proscribed, he may not be convicted. But it would be unavailing for him to claim that although he
knew his own conduct was unprotected and was plainly enough forbidden by the statute, others may be in doubt as to whether their acts are banned by the law. 32 (Emphasis supplied)

Still, the quoted dissenting opinion concedes the applicability of the void-forvagueness rule in striking infirm criminal statutes. It just enunciates a greater demand for "specificity" in statutes which may infringe on free speech protections. Moreover, Mr. Justice Mendoza likewise invoked American jurisprudence in support of his view that the overbreadth and vagueness doctrines apply only to free speech cases. 33 He cites, among others, 34 and Broadrick v. Oklahoma. 35 InSalerno, the US Supreme Court notes that the "overbreadth" doctrine was inapplicable outside the context of the First Amendment. 36 Notably though, the US Court did not make the same assertion as to the "vagueness" doctrine. Had it done so in Salerno, it would have been incongruent with its previous rulings, as well as with its subsequent ones.

Broadrick v. Oklahoma did not pertain to a challenge to a penal statute, but

rather an Oklahoma law restricting the political activities of that state's classified civil servants. 37 Again, Broadrick may advert to a correct interpretation of the "overbreadth" doctrine. However, in the face of numerous jurisprudence affirming the "vagueness" challenge of American penal laws neither Broadrick nor Salerno can be utilized to assert a converse rule. Mr. Justice Mendoza's opinion also cites from the American constitutional law textbook of Sullivan and Gunther, to assert that "vagueness challenges in the First Amendment context, like overbreadth challenges, typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated only as applied to a .particular defendant." 38 This may be a correct restatement of the American rule. Yet, it does not necessarily mean that penal laws are not susceptible to a void-for-vagueness challenge. In fact, in the same page cited in Mr. Justice Mendoza's opinion, Sullivan and Gunther cite cases wherein American penal laws were stricken down for being void for vagueness,

such as Connally v. General Construction Co., Kolender v. Lawson, and Papachristou v. Jacksonville. 39 The same citation likewise refers to the odd situation wherein unlike in First Amendment cases, due process invalidations for vagueness apply only to a particular defendant. Sullivan and Gunther posit that the broader protection afforded in First Amendment cases follow from "a special concern about the `chilling effect' of vague statutes on protected speech." 40 However, the ponencia latches onto this distinction in order to foist the bugaboo of "mass acquittal" of criminals due to the facial invalidation of criminal statutes. 41 Moreover, the ponencia asserts that such invalidation would constitute a departure from the usual requirement of actual case and controversy and permit decisions to be made in a sterile abstract context having no factual concreteness." 42 Such concerns are overwrought. In this jurisdiction, judicial review over the constitutionality of statutes, penal or otherwise, avails only upon the concurrence of (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) a plea that the function be exercised at the earliest opportunity; and (4) a necessity that the constitutional question be passed upon in order to decide the case. 43Challenges to the validity of laws are not lightly undertaken, and the non-existence of any of the four conditions precedent bar a successful challenge. Surely, not just anybody picked off the street prepossesses the requisite standing, nor could just any case present itself as the proper vehicle for a constitutional attack. These conditions precedent successfully weigh the concerns of the State, fearful of instabilities brought by frequent invalidations of the laws it passes, and with the basic component of justice that a person to whom a wrong is done by the State can seek vindication from the courts. Our basic jurisprudential barrier has shielded this Court for generations from exercising unwarranted and unmitigated judicial review. There is no need to further raise the bar for review, especially on such flimsy foundations, lest we insulate ourselves from the pleas of the truly prejudiced, truly injured, truly violated. At the same time, the ponencia raises the concern that the invalidation of a void law will unnecessarily benefit those without actual cases or controversies. It must be remembered though that the Court will not unhesitatingly strike down a statute if a narrower alternative affording the same correct relief is available. Within the confines of this discretion, all the tools of searching inquiry are at the Court's disposal to carve as narrow a rule as necessary.

Still and all, if there is no alternative but to strike down a void law, there should be no hesitation on the part of this Court in ruling it so, no matter the effective scope and reach of the decision. The State has no business promulgating void laws, which stick out like a cancer infecting our constitutional order. When faced with the proper opportunity, it is the Court's duty to excise the tumor no matter how painful. Unfortunately, the solution advocated by the ponenciabarring penal statutes from "void for vagueness" assaults hides the patient from the doctor.

People v. Dela Piedra, earlier cited, 44 did not invalidate the statute questioned

therein on the void for vagueness ground. Yet it affirms that the "void for vagueness" challenge to a penal law may be sustained if the statute contravenes due process. The circumstance, as the ponencia herein points out, that no penal law has been declared unconstitutional on the ground of ambiguity, does not mean that no penal law can ever be invalidated on that ground. As long as the due process clause remains immanent in our Constitution, its long reach should be applied to deter and punish unwarranted deprivations of life, liberty or property. Violations of due process are myriad, ranging as they do from the simple to the complicated, from the isolated to the intermittent, from the abashed to the brazen. No advance statement can outrightly cast an act as beyond the ambit of the due process clause, especially when applied to the lot of an accused, for such is simply presumptuous and anathema to the spirit of fair play. I may disagree with the eventual conclusions of Justices Kapunan, YnaresSantiago and Sandoval-Gutierrez in theEstrada case that Section 5 of the AntiPlunder Law is void for vagueness. Yet, I submit that their inquiry as to whether the said criminal statute was void for being vague is a juristic exercise worth pursuing. If the ponencia affirms the earlier erroneous doctrine as asserted in the main by Mr. Justice Mendoza in Estrada, then I express the same fear articulated by Mr. Justice Kapunan in his dissent, that "such stance is tantamount to saying that no criminal law can be challenged however repugnant it is to the constitutional right to due process." 45
Footnotes

FIRST DIVISION
[G.R. No. 160211. August 28, 2006.]

VENANCIO R. NAVA, petitioner, vs. The Honorable Justices RODOLFO G. PALATTAO, GREGORY S. ONG, and MA. CRISTINA G. CORTEZ-ESTRADA as Members of the Sandiganbayan's Fourth Division, and the PEOPLE OF THE PHILIPPINES, respondents. DECISION PANGANIBAN, C.J :
p

A meticulous review of the records and the evidence establishes the guilt of the accused beyond reasonable doubt. Clearly, the prosecution was able to prove all the elements of the crime charged. Hence, the conviction of petitioner is inevitable. The Case Before us is a Petition for Certiorari 1 under Rule 65 of the Rules of Court, assailing the June 2, 2003 Decision 2 and September 29, 2003 Resolution of the Sandiganbayan in Criminal Case No. 23627. The dispositive portion of the challenged Decision reads:
"WHEREFORE, premises considered, judgment is hereby rendered convicting accused VENANCIO NAVA Y RODRIGUEZ of the crime of violation of the Anti-Graft and Corrupt Practices Act particularly Section 3(g) thereof, or entering on behalf of government in any contract or transaction manifestly and grossly disadvantageous to the same whether or not the pubic officer profited or will profit thereby. In the absence of any aggravating or mitigating circumstances, applying the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of imprisonment of six (6) years, and one (1) day as minimum to twelve (12) years and one (1) day as maximum and to suffer perpetual disqualification from public office. Accused Nava is further ordered to pay the government the amount of P380,013.60 which it suffered by way of damages because of the unlawful act or omission committed by the herein accused Venancio Nava. "From the narration of facts, there hardly appears any circumstance that would suggest the existence of conspiracy among the other accused in the commission of the crime.

"Thus in the absence of conspiracy in the commission of the crime complained of and as the herein other accused only acted upon the orders of accused Venancio Nava, in the absence of any criminal intent on their part to violate the law, the acts of the remaining accused are not considered corrupt practices committed in the performance of their duties as public officers and consequently, accused AJATIL JAIRAL Y PONGCA, ROSALINDA MERKA Y GUANZON & JOSEPH VENTURA Y ABAD are hereby considered innocent of the crime charged and are hereby acquitted." 3

The assailed Resolution dated September 29, 2003, denied reconsideration. The Facts The Sandiganbayan narrated the facts of this case as follows:
"The complaint involving the herein accused was initiated by the COA, Region XI, Davao City, which resulted from an audit conducted by a team which was created by the COA Regional Office per COA Regional Assignment Order No. 91-74 dated January 8, 1991. The objective of the team [was] to conduct an audit of the 9.36 million allotment which was released in 1990 by the DECS, Region XI to its Division Offices.

aATHIE

"In the Audit Report, the amount of P603,265.00 was shown to have been released to the DECS Division of Davao del Sur for distribution to the newly nationalized high schools located within the region. Through the initiative of accused Venancio Nava, a meeting was called among his seven (7) schools division superintendents whom he persuaded to use the money or allotment for the purchase of Science Laboratory Tools and Devices (SLTD). In other words, instead of referring the allotment to the one hundred fifty-five (155) heads of the nationalized high schools for the improvement of their facilities, accused Nava succeeded in persuading his seven (7) schools division superintendents to use the allotment for the purchase of science education facilities for the calendar year 1990. "In the purchase of the school materials, the law provides that the same shall be done through a public bidding pursuant to Circular No. 85-55, series of 1985. But in the instant case, evidence shows that accused Nava persuaded his seven (7) schools division superintendents to ignore the circular as allegedly time was of the essence in making the purchases and if not done before the calendar year 1990, the funds allotted will revert back to the general fund.

"In the hurried purchase of SLTD's, the provision on the conduct of a public bidding was not followed. Instead the purchase was done through negotiation. Evidence shows that the items were purchased from Joven's Trading, a business establishment with principal address at Tayug, Pangasinan; D'[I]mplacable Enterprise with principal business address at 115 West Capitol Drive, Pasig, Metro Manila and from Evelyn Miranda of 1242 Oroqueta Street, Sta. Cruz, Manila. As disclosed by the audit report, the prices of the [SLTDs] as purchased from the above-named sellers exceeded the prevailing market price ranging from 56% to 1,175% based on the mathematical computation done by the COA audit team. The report concluded that the government lost P380,013.60. That the injury to the government as quantified was the result of the nonobservance by the accused of the COA rules on public bidding and DECS Order No. 100 suspending the purchases of [SLTDs]." 4

The Commission on Audit (COA) Report recommended the filing of criminal and administrative charges against the persons liable, including petitioner, before the Office of the Ombudsman-Mindanao. Petitioner was subsequently charged in an Information worded as follows:
5

filed on April 8, 1997,

"That on or about the period between November to December 1990, and for sometime prior or subsequent thereto, in Digos, Davao Del Sur and/or Davao City, Philippines and within the jurisdiction of this Honorable Court, the accused Venancio R. Nava (DECS-Region XI Director) and Ajatil Jairal (Division Superintendent, DECS, Davao del Sur), both high[-]ranking officials and Rosalinda Merka, and Teodora Indin (Administrative Officer and Assistant Division Superintendent, respectively of DECS-Division of Davao Del Sur), all low ranking officials, while in the discharge of their respective official functions, committing the offense in relation to their office and with grave abuse [of] authority, conniving and confederating with one another, did then and there willfully, unlawfully and feloniously enter, on behalf of the government, into transactions with D'Implacable Enterprise and Joven's Trading, respectively, represented by accused Antonio S. Tan and Evelyn Miranda and Joseph Ventura for the purchase of Science Laboratory Tools and Devices (SLTD) intended for use by the public high schools in the area amounting to [P603,265.00], Philippine currency, without the requisite public bidding and in violation of DECS Order No. 100, Series of 1990, which transaction involved an overprice in the amount of P380,013.60 and thus, is manifestly and grossly disadvantageous to the government." 6

Special Prosecution Officer II Evelyn T. Lucero-Agcaoill recommended the dismissal of the foregoing Information on the ground, among others, that there was no probable cause. She argued that only estimates were made to show the discrepancy of prices instead of a comparative listing on an item to item basis. 7 The recommendation was disapproved, however, by then Ombudsman Aniano A. Desierto. Ruling of the Sandiganbayan After due trial, only petitioner was convicted, while all the other accused were acquitted. 8 Petitioner was found guilty of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act, or entering on behalf of the government any contract or transaction manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or would profit thereby. The Sandiganbayan (SBN) said that, in the purchase of the Science Laboratory Tools and Devices (SLTDs), petitioner had not conducted a public bidding in accordance with COA Circular No. 85-55A. As a result, the prices of the SLTDs, as purchased, exceeded the prevailing market price from 56 percent to 1,175 percent, based on the mathematical computations of the COA team. 9 In his defense, petitioner had argued that the said COA Circular was merely directory, not mandatory. Further, the purchases in question had been done in the interest of public service. 10 The Sandiganbayan did not give credence to the foregoing defenses raised by petitioner. On the contrary, it found the evidence adduced by petitioner's coaccused, Superintendent Ajatil Jairal, to be "enlightening," manifesting an intricate web of deceit spun by petitioner and involving all the other superintendents in the process. 11 The graft court did not accept the claim of petitioner that he signed the checks only after the other signatories had already signed them. The evidence showed that blank Philippine National Bank (PNB) checks had been received by Nila E. Chavez, a clerk in the regional office, for petitioner's signature. The Sandiganbayan opined that the evidence amply supported Jairal's testimony that the questioned transactions had emanated from the regional office, as in fact, all the documents pertinent to the transaction had already been prepared and signed by petitioner when the meeting with the superintendents was called sometime in August 1990. 12

In that meeting, the superintendents were given prepared documents like the Purchase Orders and vouchers, together with the justification. 13 This circumstance prompted Jairal to conduct his own canvass. The Sandigabayan held that this act was suggestive of the good faith of Jairal, thereby negating any claim of conspiracy with the other co-accused and, in particular, petitioner. In its assailed Resolution, the SBN denied petitioner's Motion for Reconsideration. It held that the series of acts culminating in the questioned transactions constituted violations of Department of Education, Culture and Sports (DECS) Order No. 100; and COA Circular No. 85-55A. Those acts, ruled the SBN, sufficiently established that the contract or transaction entered into was manifestly or grossly disadvantageous to the government.
ITECSH

Hence, this Petition.

14

The Issues Petitioner raises the following issues for our consideration:
"I.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings of the Special Audit Team that irregularly conducted the audit beyond the authorized period and which team falsified the Special Audit Report. "II.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the special audit report where the Special Audit Team egregiously failed to comply with the minimum standards set by the Supreme Court and adopted by the Commission on Audit in violation of petitioner's right to due process, and which report suppressed evidence favorable to the petitioner. "III.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the Special Audit Report considering that none of the allegedly overpriced items were canvassed or purchased by the Special Audit Team such that there is no competent evidence from which to determine that there was an overprice and that the transaction was manifestly and grossly disadvantageous to the government.

"IV.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that there was an overprice where none of the prices of the questioned items exceeded the amount set by the Department of Budget and Management. "V.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings in the decision in Administrative Case No. XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase and that there was no overpricing. "VI.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings of XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase, there was no overpricing, and that the purchases did not violate DECS Order No. 100. "VII.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in failing to absolve the petitioner where conspiracy was not proven and the suppliers who benefited from the alleged overpricing were acquitted. "VIII.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in admitting in evidence and giving probative value to Exhibit '8' the existence and contents of which are fictitious. "IX.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in giving credence to the self-serving and perjurious testimony of co-accused Ajatil Jairal that the questioned transactions emanated from the regional office [in spite] of the documentary evidence and the testimony of the accused supplier which prove that the transaction emanated from the division office of Digos headed by co-accused Ajatil Jairal. "X.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that the petitioner entered into a transaction that was manifestly and grossly disadvantageous to the government where the evidence

clearly established that the questioned transactions were entered into by the division office of Digos through co-accused Ajatil Jairal. "XI.Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in convicting the petitioner in the absence of proof beyond reasonable doubt." 15

All these issues basically refer to the question of whether the Sandiganbayan committed reversible errors (not grave abuse of discretion) in finding petitioner guilty beyond reasonable doubt of violation of Section 3(g), Republic Act No. 3019. The Court's Ruling The Petition has no merit.

Propriety of Certiorari
At the outset, it must be stressed that to contest the Sandiganbayan's Decision and Resolution on June 2, 2003 and September 29, 2003, respectively, petitioner should have filed a petition for review on certiorari under Rule 45, not the present Petition for Certiorari under Rule 65. Section 7 of Presidential Decree No. 1606, 16 as amended by Republic Act No. 8249, 17 provides that "[d]ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court." Section 1 of Rule 45 of the Rules of Court likewise provides that "[a] party desiring to appeal by certiorari from a judgment or final order or resolution of the . . . Sandiganbayan . . . whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth."
ACaTIc

Procedural Issue:

Basic is the principle that when Rule 45 is available, recourse under Rule 65 cannot be allowed either as an add-on or as a substitute for appeal. 18 The special civil action for certiorari is not and cannot be a substitute for an appeal, when the latter remedy is available. 19 This Court has consistently ruled that a petition for certiorari under Rule 65 lies only when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. 20 A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the

judgment and the acts of the lower court or agency or as in this case, the Sandiganbayan. 21 Since the assailed Decision and Resolution were dispositions on the merits, and the Sandiganbayan had no remaining issue to resolve, an appeal would have been the plain, speedy and adequate remedy for petitioner. To be sure, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 22 For this procedural lapse, the Petition should have been dismissed outright. Nonetheless, inasmuch as it was filed within the 15-day period provided under Rule 45, the Court treated it as a petition for review (not certiorari) under Rule 45 in order to accord substantial justice to the parties. Thus, it was given due course and the Court required the parties to file their Memoranda.

Sufficiency of Evidence
Petitioner argues that the Sandiganbayan erred in convicting him, because the pieces of evidence to support the charges were not convincing. Specifically, he submits the following detailed argumentation:
"1.the Special Audit Report was fraudulent, incomplete, irregular, inaccurate, illicit and suppressed evidence in favor of the Petitioner; "2.there was no competent evidence to determine the overprice as none of the samples secured by the audit team from the Division of Davao del Sur were canvassed or purchased by the audit team; "3.the allegedly overpriced items did not exceed the amount set by the Department of Budget and Management; "4.the decision in an administrative investigation were selectively lifted out of context; "5.the administrative findings that Petitioner was justified in undertaking a negotiated purchase, that there was no overpricing, and that the purchases did not violate DECS Order No. 100 were disregarded; "6.Exhibit '8', the contents of which are fictitious, was admitted in evidence and given probative value;
DEHcTI

Main Issue:

"7.The suppliers who benefited from the transactions were acquitted, along with the other accused who directly participated in the questioned transactions; and "8.The self-serving and perjury-ridden statements of co-accused Jairal were given credence despite documentary and testimonial evidence to the contrary." 23

Petitioner further avers that the findings of fact in the Decision dated October 21, 1996 in DECS Administrative Case No. XI-91-088 24 denied any overpricing and justified the negotiated purchases in lieu of a public bidding. 25 Since there was no overpricing and since he was justified in undertaking the negotiated purchase, petitioner submits that he cannot be convicted of violating Section 3(g) of Republic Act No. 3019.

Validity of Audit
'The principal evidence presented during trial was the COA Special Audit Report (COA Report). The COA is the agency specifically given the power, authority and duty to examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of fund and property owned by or pertaining to the government. 26 It has the exclusive authority to define the scope of its audit and examination and to establish the required techniques and methods. 27 Thus, COA's findings are accorded not only respect but also finality, when they are not tainted with grave abuse of discretion. 28 Only upon a clear showing of grave abuse of discretion may the courts set aside decisions of government agencies entrusted with the regulation of activities coming under their special technical knowledge and training. 29 In this case, the SBN correctly accorded credence to the COA Report. As will be shown later, the Report can withstand legal scrutiny. Initially, petitioner faults the audit team for conducting the investigation beyond the twenty-one day period stated in the COA Regional Office Assignment Order No. 91-174 dated January 8, 1991. But this delay by itself did not destroy the credibility of the Report. Neither was it sufficient to constitute fraud or indicate bad faith on the part of the audit team. Indeed, in the conduct of an audit, the length of time the actual examination occurs is dependent upon the documents involved. If the documents are voluminous, then it necessarily follows that more time would be needed. 30 What is important is that the findings of the audit should be sufficiently supported by evidence.

Petitioner also imputes fraud to the audit team for making "it appear that the items released by the Division Office of Davao Del Sur on 21 February 1991 were compared with and became the basis for the purchase of exactly the same items on 20 February 1991." 31 The discrepancy regarding the date when the samples were taken and the date of the purchase of the same items for comparison was not very material. The discrepancy per se did not constitute fraud in the absence of ill motive. We agree with respondents in their claim of clerical inadvertence. We accept their explanation that the wrong date was written by the supplier concerned when the items were bought for comparison. Anyway, the logical sequence of events was clearly indicated in the COA Report:
"1.5.1.Obtained samples of each laboratory tools and devices purchased by the Division of Davao del Sur, Memorandum Receipts covering all the samples were issued by the agency to the audit team and are marked as Exhibits 1.2 and 3 of this Report." "1.5.2.Bought and presented these samples to reputable business establishments in Davao City like Mercury Drug Store, Berovan Marketing Incorporated and [A]llied Medical Equipment and Supply Corporation (AMESCO) where these items are also available, for price verification. "1.5.3.Available items which were exactly the same as the samples presented were purchased from AMESCO and Berovan Marketing Incorporated, the business establishments which quoted the lowest prices. Official receipts were issued by the AMESCO and Berovan Marketing Incorporated which are hereto marked as Exhibits 4, 5, 6 and 7 respectively." 32

The COA team then tabulated the results as follows:

Recanvassed% ofTotal PurchasedPrice + 10%Over-QuantityAmount of ItemUnit CostAllow.DifferencepricingPurchasedOverpricing Flask Brush made of NylonP112.20P8.80P103.401,175%400P41,360.00 Test Tube Glass Pyrex (18x50 mm)22.3614.308.0656%3502,821.00

33

Graduated Cylinder Pyrex (100ml)713.00159.50553.50347%324179,334.00 Glass Spirit Burner (alcohol lamp)163.5038.50125.00325%14418,000.00 Spring Balance (12.5kg) Germany551.0093.50457.50489%10246,665.00 Iron Wire Gauge16.209.906.3064%47296.10 Bunsen Burner701.0090.75610.25672%15091,537.50 TotalP380,013.60

What is glaring is the discrepancy in prices. The tabulated figures are supported by Exhibits "E-1," "E-2," "E-3," and "E-4," the Official Receipts evidencing the equipment purchased by the audit team for purposes of comparison with those procured by petitioner. 34 The authenticity of these Exhibits is not disputed by petitioner. As the SBN stated in its Decision, the fact of overpricing as reflected in the aforementioned exhibits was testified to or identified by Laura S. Soriano, team leader of the audit team. 35 It is hornbook doctrine that the findings of the trial court are accorded great weight, since it was able to observe the demeanor of witnesses firsthand and up close. 36 In the absence of contrary evidence, these findings are conclusive on this Court. It was therefore incumbent on petitioner to prove that the audit team or any of its members thereof was so motivated by ill feelings against him that it came up with a fraudulent report. Since he was not able to show any evidence to this end, his contention as to the irregularity of the audit due to the discrepancy of the dates involved must necessarily fail.
AcEIHC

An audit is conducted to determine whether the amounts allotted for certain expenditures were spent wisely, in keeping with official guidelines and regulations. It is not a witch hunt to terrorize accountable public officials. The presumption is always that official duty has been regularly performed 37 both on the part of those involved with the expense allotment being audited and on the part of the audit team unless there is evidence to the contrary.

Due Process
Petitioner likewise invokes Arriola v. Commission on Audit 38 to support his claim that his right to due process was violated. In that case, this Court ruled that the disallowance made by the COA was not sufficiently supported by evidence, as it

was based on undocumented claims. Moreover, in Arriola, the documents that were used as basis of the COA Decision were not shown to petitioners, despite their repeated demands to see them. They were denied access to the actual canvass sheets or price quotations from accredited suppliers. As the present petitioner pointed out in his Memorandum, the foregoing jurisprudence became the basis for the COA to issue Memorandum Order No. 97012 dated March 31, 1997, which states:
"3.2To firm up the findings to a reliable degree of certainty, initial findings of overpricing based on market price indicators mentioned in pa. 2.1 above have to be supported with canvass sheet and/or price quotations indicating: a)the identities of the suppliers or sellers; b)the availability of stock sufficient in quantity to meet the requirements of the procuring agency; c)the specifications of the items which should match those involved in the finding of overpricing; d)the purchase/contract terms and conditions which should be the same as those of the questioned transaction"

Petitioner's reliance on Arriola is misplaced. First, that Decision, more so, the COA Memorandum Order that was issued pursuant to the former, was promulgated after the period when the audit in the present case was conducted. NeitherArriola nor the COA Memorandum Order can be given any retroactive effect.

Second and more important, the circumstances in Arriola are different from those
in the present case. In the earlier case, the COA merely referred to a cost comparison made by the engineer of COA-Technical Services Office (TSO), based on unit costs furnished by the Price Monitoring Division of the COA-TSO. The COA even refused to show the canvass sheets to the petitioners, explaining that the source document was confidential. In the present case, the audit team examined several documents before they arrived at their conclusion that the subject transactions were grossly disadvantageous to the government. These documents were included in the Formal Offer of Evidence submitted to the Sandiganbayan. 39 Petitioner was

likewise presented an opportunity to controvert the findings of the audit team during the exit conference held at the end of the audit, but he failed to do so.

40

Further, the fact that only three canvass sheets/price quotations were presented by the audit team does not bolster petitioner's claim that his right to due process was violated. To be sure, there is no rule stating that all price canvass sheets must be presented. It is enough that those that are made the basis of comparison be submitted for scrutiny to the parties being audited. Indubitably, these documents were properly submitted and testified to by the principal prosecution witness, Laura Soriano. Moreover, petitioner had ample opportunity to controvert them.

Public Bidding
Petitioner oscillates between denying that he was responsible for the procurement of the questioned SLTDs, on the one hand; and, on the other, stating that the negotiated purchase was justifiable under the circumstances. On his disavowal of responsibility for the questioned procurement, he claims that the transactions emanated from the Division Office of Digos headed by Jairal. 41 However, in the administrative case 42 filed against petitioner before the DECS, it was established that he "gave the go signal" 43 that prompted the division superintendents to procure the SLTDs through negotiated purchase. This fact is not disputed by petitioner, who quotes the same DECS Decision in stating that his "acts were justifiable under the circumstances then obtaining at that time and for reasons of efficient and prompt distribution of the SLTDs to the high schools." 44 In justifying the negotiated purchase without public bidding, petitioner claims that "any delay in the enrichment of the minds of the public high school students of Davao del Sur is detrimental and antithetical to public service." 45 Although this reasoning is quite laudable, there was nothing presented to substantiate it. Executive Order No. 301 states the general rule that no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities may be renewed or entered into without public bidding. The rule however, is not without exceptions. Specifically, negotiated contracts may be entered into under any of the following circumstances:
"a.Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property;

"b.Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service;
STcaDI

"c.Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; "d.Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or non-conforming to specifications; "e.In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; "f.Whenever the purchase is made from an agency of the government." 46

National Center for Mental Health v. Commission on Audit

upheld the validity of the negotiated contracts for the renovation and the improvement of the National Center for Mental Health. In that case, petitioners were able to show that the long overdue need to renovate the Center "made it compelling to fast track what had been felt to be essential in providing due and proper treatment and care for the center's patients." 48
47

This justification was likewise accepted in Baylon v. Ombudsman 49 in which we recognized that the purchases were made in response to an emergency brought about by the shortage in the blood supply available to the public. The shortage was a matter recognized and addressed by then Secretary of Health Juan M. Flavier, who attested that "he directed the NKTI [National Kidney and Transplant Institute] to do something about the situation and immediately fast-track the implementation of the Voluntary Blood Donation Program of the government in order to prevent further deaths owing to the lack of blood." 50 Unfortunately for petitioner, there was no showing of any immediate and compelling justification for dispensing with the requirement of public bidding. We cannot accept his unsubstantiated reasoning that a public bidding would

unnecessarily delay the purchase of the SLTDs. Not only would he have to prove that indeed there would be a delay but, more important, he would have to show how a public bidding would be detrimental and antithetical to public service. As the COA Report aptly states, the law on public bidding is not an empty formality. It aims to secure the lowest possible price and obtain the best bargain for the government. It is based on the principle that under ordinary circumstances, fair competition in the market tends to lower prices and eliminate favoritism. 51 In this case, the DECS Division Office of Davao del Sur failed to conduct bidding on the subject transactions. The procurement of laboratory tools and devices was consummated with only the following documents to compensate for the absence of a public bidding:
"1.13.a. Price lists furnished by the Supply Coordination Office 1.13.b. Price lists furnished by the Procurement Services of the Department of Budget and Management 1.13.c. Price lists of Esteem Enterprises"
52

The COA Report states that the Division Office merely relied on the above documents as basis for concluding that the prices offered by D'Implacable Enterprises and Joven's Trading were reasonable. But as found by the COA, reliance on the foregoing supporting documents was completely without merit on the following grounds:
"a.The Supply Coordination Office was already dissolved or abolished at the time when the transactions were consummated, thus, it is illogical for the management to consider the price lists furnished by the Supply Coordination Office. "b.The indorsement letter made by the Procurement Services of the Department of Budget and Management containing the price lists specifically mentions Griffin and George brands, made in England. However, the management did not procure these brands of [SLTDs]. "c.The price lists furnished by the Esteem Enterprises does not deserve the scantest consideration, since there is no law or regulation specifically mentioning that the price lists of the Esteem Enterprises will be used as basis for buying [SLTDs]." 53

Granting arguendo that petitioner did not have a hand in the procurement and that the transactions emanated from the Division Office of Davao del Sur, we still find him liable as the final approving authority. In fact, Exhibit "B-2" Purchase Order No. 90-024, amounting to P231,012 and dated December 17, 1990 was recommended by Jairal and approved by petitioner. 54 This exhibit was part of the evidence adduced in the Sandiganbayan to prove that the purchase of the SLTDs was consummated and duly paid by the DECS without any proof of public bidding. Although this Court has previously ruled 55 that all heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies or enter into negotiations, it is not unreasonable to expect petitioner to exercise the necessary diligence in making sure at the very least, that the proper formalities in the questioned transaction were observed that a public bidding was conducted. This step does not entail delving into intricate details of product quality, complete delivery or fair and accurate pricing. Unlike other minute requirements in government procurement, compliance or non-compliance with the rules on public bidding is readily apparent; and the approving authority can easily call the attention of the subordinates concerned. To rule otherwise would be to render meaningless the accountability of highranking public officials and to reduce their approving authority to nothing more than a mere rubber stamp. The process of approval is not a ministerial duty of approving authorities to sign every document that comes across their desks, and then point to their subordinates as the parties responsible if something goes awry.
aSTcCE

Suspension of Purchases
Obviously working against petitioner is DECS Order No. 100 dated September 3, 1990 which states thus:
"In view of the Government's call for economy measures coupled with the deficiency in allotments intended for the payment of salary standardization, retirement benefits, bonus and other priority items, the procurement of reference and supplementary materials, tools and devices, equipment, furniture, including land acquisition and land improvement shall be suspended for CY 1990. However, the following items shall be exempted from the said suspension:

a)textbooks published by the Instructional Materials Corporation and its commercial edition; b)elementary school desks and tablet arm chairs[.]"

As the COA Report succinctly states, the Administrative Order is explicit in its provisions that tools and devices were among the items whose procurement was suspended by the DECS for the year 1990. Petitioner claims that in the administrative case against him, there was no mention of a violation of DECS Order No. 100.56 He alleges that the purchases of SLTDs by the division superintendents were entered into and perfected on July 1, 1990; that is, more than two (2) months before the issuance of DECS Order No. 100. He also alleged that the Sub-Allotment Advice (SAA) to the DECS Regional Office No. XI in the amount of P9.36M out of which P603,265.00 was used for the procurement of the questioned SLTDs had been released by the DECS Central Office in August 1990, a month before the issuance of DECS Order No. 100. The Court notes that these arguments are mere assertions bereft of any proof. There was no evidence presented to prove that the SAA was issued prior to the effectivity of DECS Order No. 100. On the other hand, the COA Report states that the DECS Division of Davao del Sur received the following Letters of Advice of Allotments (LAA): 57
"LAA NO.AMOUNTDATE OF LAA DO CO471-774-90P141,956.00October 24, 1990 DO-CO471-797-90P161,309.00November 16, 1990 DO-CO471-1007-90P300,000.00December 14, 1990"

The foregoing LAAs were attached as annexes 58 to the COA Report and were presented during trial in the Sandiganbayan. 59 Also, Schools Division Superintendent Jairal had sent a letter to petitioner, requesting favorable consideration of a forthcoming release of funding for the different barangay and municipal high schools. The letter was dated October 16, 1990, 60 and was made well within the effectivity of the DECS Order. In that letter, Jairal mentioned the receipt by his office of DECS Order No. 100, albeit wrongly interpreting it as suspending only the purchases of reference books,

supplementary readers, and so on, but allegedly silent on the purchase of laboratory supplies and materials. 61 Finally, the SLTDs were purchased within the covered period of DECS Order No. 100, as evidenced by the following relevant documents adduced by the COA audit team, among others:
1)Disbursement Voucher dated November 27, 1990 for the payment of various laboratory supplies and materials by DECS, Davao del Sur in the amount of P303,29.40 62 2)Official Receipt No. 455 dated January 7, 1991 amounting to P68,424.00 issued by Joven's Trading 63 3)Report of Inspection dated November 26, 1990 signed by Jacinta Villareal and Felicisimo Canoy 64 4)Sales Invoice No. 044 dated November 26, 1990 issued by Joven's Trading in favor of DECS amounting to P303,259.40 65 5)Certificate of Acceptance dated November 27, 1990 signed by Felicismo Canoy 66 6)Purchase Order No. 90-021 in favor of Joven's Trading dated November 26, 1990 recommended for approval by Ajatil Jairal 7)Official Receipt No. 92356 dated January 7, 1991 issued by D'Implacable Enterprises amounting to P231,012.00 68 8)Purchase Order No. 90-024 dated December 17, 1990 recommended for approval by Ajatil Jairal and approved Director Venancio Nava amounting to P231,012.00." 69

67

The confluence of the foregoing circumstances indubitably establishes that petitioner indeed wantonly disregarded regulations. Additionally, DECS Order No. 100 negates his claim that the negotiated transaction done instead of a public bidding was justified. If that Order suspended the acquisition of tools and devices, then there was all the more reason for making purchases by public bidding. Since the buying of tools and devices was specifically suspended, petitioner cannot argue that the purchases were done in the interest of public service.

Proof of Guilt

To sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be clearly proven that 1) the accused is a public officer; 2) the public officer entered into a contract or transaction on behalf of the government; and 3) the contract or transaction was grossly and manifestly disadvantageous to the government. 70 From the foregoing, it is clear that the Sandiganbayan did not err in ruling that the evidence presented warranted a verdict of conviction. Petitioner is a public officer, who approved the transactions on behalf of the government, which thereby suffered a substantial loss. The discrepancy between the prices of the SLTDs purchased by the DECS and the samples purchased by the COA audit team clearly established such undue injury. Indeed, the discrepancy was grossly and manifestly disadvantageous to the government.

We must emphasize however, that the lack of a public bidding and the violation of an administrative order do not by themselves satisfy the third element of Republic Act No. 3019, Section 3(g); namely, that the contract or transaction entered into was manifestly and grossly disadvantageous to the government, as seems to be stated in the Resolution of the Sandiganbayan denying the Motion for Reconsideration. 71 Lack of public bidding alone does not result in a manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the government. 72 If the accused is to be sent to jail, it must be because there is solid evidence to pin that person down, not because of the omission of a procedural matter alone. Indeed, all the elements of a violation of Section 3(g) of Republic Act No. 3019 should be established to prove the culpability of the accused. In this case, there is a clear showing that all the elements of the offense are present. Thus, there can be no other conclusion other than conviction. We note, however, that petitioner was sentenced to suffer the penalty of six (6) years and one (1) day as minimum to twelve (12) years and one (1) day as maximum. Under Section 9 of Republic Act 3019, petitioner should be punished with imprisonment of not less than six (6) years and one (1) month nor more than fifteen years. Thus, we adjust the minimum penalty imposed on petitioner in accordance with the law.

WHEREFORE, the Petition is DENIED. The assailed Decision and Resolution are AFFIRMED, with the MODIFICATION that the minimum sentence imposed shall be six (6) years and one (1) month, not six (6) years and one (1) day. Costs against petitioner.
ITADaE

SO ORDERED.

FIRST DIVISION
[G.R. No. 171144. November 24, 2006.] SANTOS L. NACAYTUNA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J :
p

This petition for review 1 under Rule 45 of the Rules of Court assails the October 4, 2005 Decision 2 of the Sandiganbayan in Criminal Case No. 27759 finding petitioner Santos L. Nacaytuna guilty beyond reasonable doubt of violating Sec. 3(e) of Republic Act (R.A.) No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act; and its January 4, 2006 Resolution 3 denying petitioner's motion for reconsideration. On November 17, 1999, petitioner Santos L. Nacaytuna, who was then Municipal Mayor of San Miguel, Surigao del Sur appointed his wife, herein private complainant Marydole V. Nacaytuna as Municipal Health Officer. 4 In the course of her employment, Marydole drafted a letter of resignation dated April 7, 2000 which petitioner purportedly received on even date. In May 2001, Marydole left the conjugal home and lived separately from petitioner. 5 Sometime in April 2002, a certain Marly Prieto informed Marydole that petitioner has accepted her resignation effective at the end of April 2002. 6 Marydole questioned the acceptance of her resignation before the Civil Service Commission (CSC) and the Office of the Ombudsman claiming that she never tendered the resignation letter.
DSATCI

The CSC declared the acceptance of Marydole's resignation illegal and ordered her reinstatement with full backwages. Meanwhile, upon recommendation by the Ombudsman, an information was filed against petitioner for violation of Sec. 3(e) of R.A. No. 3019, which reads:
That sometime during the period of April 2002 or shortly prior or subsequent thereto, in the Municipality of San Miguel, Surigao del Sur and within the jurisdiction of this Honorable Court, accused Santos L. Nacaytuna, a high ranking public officer, being the Municipal Mayor of San Miguel, Surigao del Sur, committing the offense while in the performance of his official functions, did there and then, willfully, unlawfully, feloniously, and thru evident bad faith, cause upon Dr. Marydole L. Nacaytuna undue injury by removing here from office as the Rural Health Officer of San Miguel, Surigao del Sur using the latter's supposed resignation letter dated 07 April 2000 and approving the same on 23 April 2002 despite the fact that said resignation letter has not been officially tendered to the accused thereby depriving her not only of her office but also the salaries and other monetary benefits attached to it to her damage and prejudice. CONTRARY TO LAW.
7

Marydole testified that she drafted the resignation letter sometime in April 2000 but she never tendered the same to petitioner; that she continued working even after drafting the letter and after the same has been approved because she had no intention of resigning; that petitioner probably got the letter from among her belongings which she left behind in their conjugal abode. Petitioner testified that the April 7, 2000 resignation letter was received by his private secretary on said date; that he kept the letter in his office until he accepted the resignation on April 23, 2002; that he did not immediately approve the letter because he was still assessing Marydole's performance; and that he consulted the CSC prior to approving the resignation.
DTIACH

On October 4, 2005, the Sandiganbayan rendered the assailed Decision, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered finding accused Santos L. Nacaytuna guilty beyond reasonable doubt of violating Sec. 3 (e) of R.A. 3019 as charged, and applying the Indeterminate Sentence Law, sentencing him to suffer imprisonment of six (6) years and one (1) month as minimum to ten (10) years as maximum, and perpetual disqualification to hold public office.

SO ORDERED.

Petitioner filed a motion for reconsideration but was denied hence the instant petition raising the following errors: 9
I THAT THE HONORABLE SANDIGANBAYAN ERRED IN CONCLUDING THAT DR. MARYDOLE L. NACAYTUNA DID NOT TENDER HER RESIGNATION II THAT THE GUILT OF THE PETITIONER WAS NOT PROVED BEYOND REASONABLE DOUBT III THAT THE HONORABLE SANDIGANBAYAN ERRED IN DENYING THE MOTION FOR RECONSIDERATION

Petitioner contends that Marydole tendered her resignation on April 7, 2000, which he validly accepted in April 2002. He claims he is presumed to have regularly performed his official duties as Municipal Mayor; that his guilt was not proved beyond reasonable doubt; and that no undue injury was caused to Marydole because she was reinstated and given her backwages.
CTHaSD

The sole issue for resolution is whether the prosecution sufficiently proved petitioner's guilt beyond reasonable doubt. After a careful review of the evidence on record, we find that the Sandiganbayan correctly found petitioner guilty as charged. Section 3(e) of R.A. No. 3019 states:
SEC. 3.Corrupt practices by public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (e)Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross

inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
IDcAHT

Violation of Section 3(e) of R.A. No. 3019 requires proof of the following facts:
1.)The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; 2.)The public officer committed the prohibited act during the performance of his official duty or in relation to his public position; 3.)The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and 4.)His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties. 10

All the foregoing facts were established beyond reasonable doubt. Petitioner, as Municipal Mayor, was a public officer. His acceptance of Marydole's resignation was done in the performance of his official duty. It was also proved that Marydole never tendered the resignation letter hence petitioner was evidently acting in bad faith when he made it appear that it was submitted. Worse, he accepted the same knowing that it was never tendered in the first place. Petitioner's actuations caused undue injury to Marydole because it resulted to her removal from office and the withholding of her salaries. Resignation is the "act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and its acceptance by competent and lawful authority." 11 To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. 12 In the instant case, the intention to relinquish and the act of relinquishment are clearly absent. While Marydole admits having written and prepared the resignation letter dated April 7, 2000, the evidence shows that she did not actually tender the same and refrained from pursuing her intention to resign. As observed by the Sandiganbayan, petitioner's account of how he received the resignation letter is rife with inconsistencies. Before the CSC, he claimed that

AIDcTE

Marydole's resignation letter "reached him not through the normal course of transmitting written communications" 13 because protocol is not strictly observed between them as husband and wife. However, when he testified before the Sandiganbayan, he claimed that the letter was received by his private secretary. The Sandiganbayan thus correctly disregarded petitioner's testimony. On the other hand, Marydole consistently maintained that she never resigned from her position as Municipal Health Officer. She continued working after the letter was drafted and allegedly tendered on April 7, 2000 until its supposed acceptance on April 23, 2002, and even thereafter, despite the fact that her salaries were withheld. Upon being informed of the acceptance of her resignation, she protested by writing petitioner a letter on April 24, 2002. The length of time between the alleged resignation and its acceptance likewise negates petitioner's claim of good faith. The letter was allegedly drafted and tendered on April 7, 2000 but was accepted only two years hence or on April 23, 2002. Petitioner's allegation that he first observed and assessed Marydole's performance before accepting her resignation deserves no credence at all. His contention that he consulted the CSC before taking any action on Marydole's resignation was correctly disregarded by the Sandiganbayan, thus:
Accused's allegation that he consulted the Civil Service Commission before he accepted the resignation of the complainant and he was advised that the acceptance is at his discretion does not lend strength to his cause for, not only is it self-serving and unsupported by any other evidence, it betrays his desire to remove the accused from her office and cause injury to her. Otherwise he could have just asked the complainant if she was resigning or not, but he failed to do so. Such failure and his belated acceptance of the complainant's untendered resignation, which may have been motivated by their apparent marital problems, are clear indications of evident bad faith. 14

The penalty for violation of Section 3(e) of R.A. No. 3019 is "imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office." 15 Under the Indeterminate Sentence Law, if the offense is punished by special law, the Court shall sentence the accused to an indeterminate penalty, the maximum term of which shall not exceed the maximum fixed by said law and the minimum term shall not be less than the minimum prescribed by the same. 16 Hence, the Sandiganbayan correctly imposed the indeterminate penalty of imprisonment ranging from six (6) years

and one (1) month, as minimum, to ten (10) years, as maximum, with perpetual disqualification from public office.
CSHEAI

WHEREFORE, the petition is DENIED. The Decision dated October 4, 2005 of the Sandiganbayan in Criminal Case No. 27759 finding petitioner Santos L. Nacaytuna guilty beyond reasonable doubt of violation of Section 3 (e) of Republic Act No. 3019, and sentencing him to suffer the indeterminate penalty of imprisonment ranging from six (6) years and one (1) month, as minimum, to ten (10) years, as maximum, with perpetual disqualification to hold public office, and its Resolution dated January 4, 2006 denying the motion for reconsideration, are AFFIRMED. SO ORDERED.

THIRD DIVISION
[G.R. No. 140231. July 9, 2007.] PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), represented by ORLANDO L. SALVADOR, petitioner, vs. HON. ANIANO A. DESIERTO, Office of the Ombudsman-Manila, CONCERNED MEMBERS OF THE PNB BOARD OF DIRECTORS, REYNALDO TUASON, CARLOS CAJELO, JOSE BARQUILLO, JR., LORETO SOLSONA, PRIMICIAS BANAGA, JOHN DOES, and NORTHERN COTABATO SUGAR INDUSTRIES, INC. (NOCOSII), respondents. DECISION AUSTRIA-MARTINEZ, J :
p

The Presidential Commission on Good Government 1 (petitioner) filed the herein Petition for Certiorari under Rule 65 of the Rules of Court assailing the Resolution 2 dated May 21, 1999 of Ombudsman Aniano A. Desierto in OMB No. 0-95-0890 which dismissed petitioner's criminal complaint for violation of Section 3 (e) and (g) of Republic Act (R.A.) No. 3019 3 against concerned members of Philippine National Bank (PNB) Board of Directors and Northern Cotabato Sugar

Industries, Inc. (NOCOSII) officers, namely: Reynaldo Tuason, Carlos Cajelo, Jose Barquillo, Jr., Loreto Solsona, Primicias Banaga and John Does (respondents); and the Order 4 dated July 23, 1999 which denied petitioner's Motion for Reconsideration. The facts: On October 8, 1992, then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans (Committee) which was tasked to inventory all behest loans, determine the parties involved and recommend whatever appropriate actions to be pursued thereby. On November 9, 1992, President Ramos issued Memorandum Order No. 61 expanding the functions of the Committee to include the inventory and review of all non-performing loans, whether behest or non-behest. The Memorandum set the following criteria to show the earmarks of a "behest loan," to wit: "a) it is undercollaterized; b) the borrower corporation is undercapitalized; c) a direct or indirect endorsement by high government officials like presence of marginal notes; d) the stockholders, officers or agents of the borrower corporation are identified as cronies; e) a deviation of use of loan proceeds from the purpose intended; f) the use of corporate layering; g) the non-feasibility of the project for which financing is being sought; and, h) the extraordinary speed in which the loan release was made."
THIAaD

Among the accounts referred to the Committee's Technical Working Group (TWG) were the loan transactions between NOCOSII and PNB. After it had examined and studied all the documents relative to the said loan transactions, the Committee classified the loans obtained by NOCOSII from PNB as behest because of NOCOSII's insufficient capital and inadequate collaterals. Specifically, the Committee's investigation revealed that in 1975, NOCOSII obtained loans by way of Stand-By Letters of Credit from the PNB; that NOCOSII was able to get 155% loan value from the offered collateral or an excess of 85% from the required percentage limit; that the plant site offered as one of the collaterals was a public land contrary to the General Banking Act; that by virtue of the marginal note of then President Marcos in the letter of Cajelo, NOCOSII was allowed to use the public land as plant site and to dispense with the mortgage requirement of PNB; that NOCOSII's paid-up capital at the time of the

approval of the guaranty was only P2,500,000.00 or only about 6% of its obligation. Based on the Sworn Statement of PCGG consultant Orlando Salvador, petitioner filed with the Office of the Ombudsman the criminal complaint against respondents. Petitioner alleges that respondents violated the following provisions of Section 3 (e) and (g) of R.A. No. 3019:
Sec. 3.Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx e.Causing undue injury to any party, including the Government or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
DHcESI

xxx xxx xxx g.Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

The respondents failed to submit any responsive pleading before the the Ombudsman, prompting Graft Investigator Officer (GIO) I Melinda S. DiazSalcedo to resolve the case based on the available evidence. In a Resolution dated January 12, 1998 in OMB-0-95-0890, GIO Diaz-Salcedo recommended the dismissal of the case on the ground of insufficiency of evidence or lack of probable cause against the respondents and for prescription of the offense. Ombudsman Desierto approved the recommendation on May 21, 1999. 5 Petitioner filed a Motion for Reconsideration 6 but it was denied by GIO DiazSalcedo in the Order dated July 9, 1999, which was approved by Ombudsman Desierto on July 23, 1999. 7

Forthwith, petitioner elevated the case to this Court and in support of its petition alleges that:
A)The Respondent Ombudsman gravely abused his discretion or acted without or in excess of jurisdiction in dismissing the complaint filed by the Petitioner on the ground of Prescription considering that: 1.THE RIGHT OF THE STATE TO RECOVER BEHEST LOANS AS ILL-GOTTEN WEALTH IS IMPRESCRIPTIBLE UNDER ARTICLE XI, SECTION 15, OF THE 1987 CONSTITUTION; 2.PRESCRIPTION DOES NOT RUN IN FAVOR OF A TRUSTEE TO THE PREJUDICE OF THE BENEFICIARY; 3.THE OFFENSES CHARGED ARE IN THE NATURE OF CONTINUING CRIMES AS THE STATE CONTINUES TO SUFFER INJURY ON EACH DAY OF DEFAULT IN PAYMENT. HENCE, PRESCRIPTION DOES NOT APPLY; 4.PRESCRIPTION AS A MATTER OF DEFENSE MUST BE PLEADED, OTHERWISE, IT IS DEEMED WAIVED; 5.PRESCRIPTION HAS NOT BEEN INVOKED IN THIS CASE. SINCE IT MAY BE WAIVED OR MAY NOT BE SET IN DEFENSE, THE OMBUDSMAN CANNOT MOTU PROPRIO DISMISS THE COMPLAINT ON GROUND OF PRESCRIPTION; 6.ARTICLE 91 OF THE REVISED PENAL CODE WHICH ADOPTS THE "DISCOVERY RULE" SHALL APPLY IN THIS CASE; 7.THE LOAN CONTRACT AS OTHER LOAN TRANSACTIONS IN THE NATURE OF BEHEST LOANS ARE KEPT SECRET. 8 B)The respondent Ombudsman gravely abused his discretion or acted without or in excess of jurisdiction in not finding that a probable cause exists for violation by the private respondents of section 3 (e) and (g) of RA 3019 despite the presence of clear, overwhelming and unrebutted evidence. 9
TcADCI

In its Comment, the Ombudsman, without delving on the issue of prescription, in view of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto (1999), 10 contends that its finding of insufficiency of evidence or lack of probable cause against respondents deserves great weight and respect, and must be accorded full weight and credit.

No comment was filed by the rest of the respondents. The issue before the Court is whether the Ombudsman committed grave abuse of discretion in ruling that: (a) the offense leveled against respondents has prescribed; and (b) no probable cause exists against respondents. The petition is partly meritorious. Respondent Ombudsman committed grave abuse of discretion in dismissing the subject complaint on the ground of prescription. Respondents members of the PNB Board of Directors and Officers of NOCOSII are charged with violation of R.A. No. 3019, a special law. Amending said law, Section 4, Batas Pambansa Blg. 195, 11 increased the prescriptive period from ten to fifteen years. The applicable law in the computation of the prescriptive period is Section 2 of Act No. 3326, 12 as amended, which provides:
Sec. 2.Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.
EcHIDT

The issue of prescription has long been laid to rest in the aforementioned Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 13 where the Court held:
. . . it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the "beneficiaries of the loans.' Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission. The assertion by the Ombudsman that the phrase 'if the same not be known' in Section 2 of Act No. 3326 does not mean 'lack of knowledge'

but that the crime 'is not reasonably knowable' is unacceptable, as it provides an interpretation that defeats or negates the intent of the law, which is written in a clear and unambiguous language and thus provides no room for interpretation but only application. 14

The Court reiterated the above ruling in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto(2001), 15 thus:
In cases involving violations of R.A. No. 3019 committed prior to the February 1986 Edsa Revolution that ousted President Ferdinand E. Marcos, we ruled that the government as the aggrieved party could not have known of the violations at the time the questioned transactions were made (PCGG vs. Desierto, G.R. No. 140232, January 19, 2001, 349 SCRA 767; Domingo v. Sandiganbayan, supra, Note 14; Presidential Ad Hoc Fact Finding Committee on Behest Loans v. Desierto, supra, Note 16). Moreover, no person would have dared to question the legality of those transactions. Thus, the counting of the prescriptive period commenced from the date of discovery of the offense in 1992 after an exhaustive investigation by the Presidential Ad Hoc Committee on Behest Loans.

As to when the period of prescription was interrupted, the second paragraph of Section 2, Act No. 3326, as amended, provides that prescription is interrupted 'when proceedings are instituted against the guilty person.16

Records show that the act complained of was discovered in 1992. The complaint was filed with the Office of the Ombudsman on April 5, 1995, 17 or within three (3) years from the time of discovery. Thus, the filing of the complaint was well within the prescriptive period of 15 years. On the issue of whether the Ombudsman committed grave abuse of discretion in finding that no probable cause exists against respondents, it must be stressed that the Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. 18 Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsman's exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise. 19 Said exercise of powers is based upon his constitutional mandate20 and the courts will not interfere in its exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the

Constitution to the Office of the Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided to file an information or dismiss a complaint by a private complainant. 21
HSATIC

While there are certain instances when this Court may intervene in the prosecution of cases, such as, (1) when necessary to afford adequate protection to the constitutional rights of the accused; (2) when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) when there is a prejudicial question which is sub-judice; (4) when the acts of the officer are without or in excess of authority; (5) where the prosecution is under an invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) where the court has no jurisdiction over the offense; (8) where it is a case of persecution rather than prosecution; (9) where the charges are manifestly false and motivated by the lust for vengeance; and (10) when there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied, 22 none apply here. After examination of the records and the evidence presented by petitioner, the Court finds no cogent reason to disturb the findings of the Ombudsman. No grave abuse of discretion can be attributed to the Ombudsman. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. 23 The exercise of power must have been done in an arbitrary or despotic manner by reason of passion or personal hostility. It must be so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 24 The disquisition of GIO Diaz-Salcedo, in dismissing the criminal complaint, as approved by Ombudsman Desierto, is worth-quoting, thus:
Taking into consideration the provisions of Administrative Order No. 13 and Memorandum Order No. 61, the subject transactions can not be classified as behest. Evaluation of the records of this case reveals that the loans acquired by NOCOSII are actually foreign loans from Midland Bank Ltd. of London. There were no direct loans released by PNB but merely credit accommodations to guaranty the loans from Midland Bank.
HAaDTE

Anent complainant's claim that the collaterals offered by NOCOSII are insufficient, it should be noted that under PNB Board Resolution No. 689 dated July 30, 1975, one of the conditions imposed to NOCOSII was the execution of contract assigning all NOCOSII's share of sugar and molasses to PNB. NOCOSII was also required to increase its paid up capital at P5,000,000.00 a year starting April 30, 1976 up to April 30, 1980 or a total of P25,000,000.00. In addition thereto, the stockholders of NOCOSII were required to pledge or assign all their present and future shares to PNB while the accommodation remains standing. The proposed plant site which was offered as collateral was estimated to cost P307,903,000.00. The foregoing collaterals offered by NOCOSII are more than sufficient to cover the loans of P333,465,260.00. Furthermore, since the loan was approved by PNB, it presupposes that all the required clearances were submitted by NOCOSII including the clearance from the Office of the President; and having complied with all the documentary requirements, NOCOSII became entitled to the release of the loan. Complainant further alleged that NOCOSII was undercapitalized because its paid up capital was only P50,000,000.00. Complainant, however, failed to consider the other assets of NOCOSII which also form part of its capital. . . . 25

The finding of insufficiency of evidence or lack of probable cause by the Ombudsman is borne out by the evidence presented by petitioner: firstly, there were no direct loans released by PNB but merely credit accommodations to guaranty NOCOSII's foreign loans from Midland Bank Ltd. of London; secondly, NOCOSII effectively came under government control since 1975 when PNB acquired a majority of the voting rights in NOCOSII and was given the power to appoint a comptroller therein; thirdly, PNB's credit accommodations to NOCOSII between 1975 and 1981 in the aggregate sum of P333,465,260.00 were sufficiently secured by: (1) the Assignment of Subscription Rights and/or Pledge of Shares dated September 5, 1975 whereby NOCOSII officers pledged their shares of stock, representing 90% of NOCOSII's subscribed capital stock, and assigned their subscription rights to future stocks in favor of PNB; 26 (2) the Deed of Assignment dated September 5, 1975 whereby NOCOSII assigned its share of sugar and molasses from the operation of its sugar central located at Barrio Mateo, Matalam, North Cotabato in favor of PNB; 27 (3) the Joint and Solidary Agreement dated September 5, 1975 whereby the NOCOSII officers bound themselves jointly and severally liable with the corporation for the payment of NOCOSII's obligations to PNB; 28 (4) the Real Estate Mortgage dated October 2, 1981 whereby NOCOSII mortgaged various buildings, machineries

and equipments, otherwise known as the NOCOSII Sugar Mill Plant, with an estimated value of P307,593,000.00 in favor of PNB; 29 and (5) the Chattel Mortgage with Power of Attorney dated October 2, 1981 whereby NOCOSII mortgaged various transportation, agricultural and heavy equipment in favor of the PNB; 30 fourthly, PNB imposed other conditions, such as, (1) the submission by NOCOSII of the Central Bank's approval of its foreign loans; (2) the submission by NOCOSII of the required clearances from the National Economic Development Authority (NEDA) and/or Presidential Committee on Sugar Industry (PHILSUGIN); (3) submission by NOCOSII of its milling contracts covering a total area of not less than 14,000 hectares; (4) submission by NOCOSII of the government permit that the planters can cultivate the required hectarage; (5) further increase in NOCOSII's total paid-in capital to P25,000,000.00 at P5,000,000.00 a year starting April 30, 1976 up to April 30, 1980; (6) deposit in NOCOSII's account with the PNB of all cash proceeds of NOCOSII's foreign loans the disposition of which shall be subject to the bank's control; and, (7) designation by the PNB of its own representatives in NOCOSII's Board of Directors and its own comptroller who shall have the authority to control all disbursements and receipts of funds of NOCOSII. 31
HSaIET

The herein assailed Orders being supported by substantial evidence, there is no basis for the Court to exercise its supervisory powers over the ruling of the Ombudsman. As long as substantial evidence supports the Ombudsman's ruling, that decision will not be overturned. 32 WHEREFORE, the petition is DISMISSED. Except as to prescription, the assailed Resolution dated May 21, 1999 and Order dated July 23, 1999 of the Ombudsman in OMB No. 0-95-0890 are AFFIRMED. No costs. SO ORDERED.

THIRD DIVISION
[G.R. No. 151085. August 20, 2008.] JOEMAR ORTEGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION

NACHURA, J :
p

Before this Court is a Petition 1 for Review on Certiorari under Rule 45 of the Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA) Decision 2 dated October 26, 2000 which affirmed in toto the Decision 3 of the Regional Trial Court (RTC) of Bacolod City, Branch 50, dated May 13, 1999, convicting petitioner Joemar Ortega 4(petitioner) of the crime of Rape.
SCaEcD

The Facts
Petitioner, then about 14 years old, 5 was charged with the crime of Rape in two separate informations both dated April 20, 1998, for allegedly raping AAA, 6 then about eight (8) years of age. The accusatory portions thereof respectively state:
Criminal Case No. 98-19083 That sometime in August, 1996, in the Municipality of XXX, Province of YYY, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, did then and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual intercourse with the said AAA, a minor, then about 6 years old, against her will.
DHIETc

CONTRARY TO LAW.

Criminal Case No. 98-19084 That on or about the 1st day of December, 1996, in the Municipality of XXX, Province of YYY, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, did then and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual intercourse with the said AAA, a minor, then about 6 years old, against her will. CONTRARY TO LAW.
8

Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the offense charged. 9 Thus, trial on the merits ensued. In the course of the trial, two varying versions arose.
cEAaIS

Version of the Prosecution

On February 27, 1990, AAA was born to spouses FFF and MMM. 10 Among her siblings CCC, BBB, DDD, EEE and GGG, AAA is the only girl in the family. Before these disturbing events, AAA's family members were close friends of petitioner's family, aside from the fact that they were good neighbors. However, BBB caught petitioner raping his younger sister AAA inside their own home. BBB then informed their mother MMM who in turn asked AAA. 11 There, AAA confessed that petitioner raped her three (3) times on three (3) different occasions. The first occasion happened sometime in August 1996. MMM left her daughter AAA, then 6 years old and son BBB, then 10 years old, in the care of Luzviminda Ortega 12 (Luzviminda), mother of petitioner, for two (2) nights because MMM had to stay in a hospital to attend to her other son who was sick. 13 During the first night at petitioner's residence, petitioner entered the room where AAA slept together with Luzviminda and her daughter. Petitioner woke AAA up and led her to the sala. There petitioner raped AAA. The second occasion occurred the following day, again at the petitioner's residence. Observing that nobody was around, petitioner brought AAA to their comfort room and raped her there. AAA testified that petitioner inserted his penis into her vagina and she felt pain. In all of these instances, petitioner warned AAA not to tell her parents, otherwise, he would spank her. 14 AAA did not tell her parents about her ordeal.
SHAcID

The third and last occasion happened in the evening of December 1, 1996. Petitioner went to the house of AAA and joined her and her siblings in watching a battery-powered television. At that time, Luzviminda was conversing with MMM. While AAA's siblings were busy watching, petitioner called AAA to come to the room of CCC and BBB. AAA obeyed. While inside the said room which was lighted by a kerosene lamp, petitioner pulled AAA behind the door, removed his pants and brief, removed AAA's shorts and panty, and in a standing position inserted his penis into the vagina of AAA. 15 AAA described petitioner's penis as about five (5) inches long and the size of two (2) ballpens. She, likewise, narrated that she saw pubic hair on the base of his penis. 16 This last incident was corroborated by BBB in his testimony. When BBB was about to drink water in their kitchen, as he was passing by his room, BBB was shocked to see petitioner and AAA both naked from their waist down in the act of sexual intercourse. BBB saw petitioner holding AAA and making a pumping motion. Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left. Thereafter, BBB reported the incident to his mother, MMM. 17 MMM testified that when she asked AAA about what BBB saw, AAA told her that petitioner inserted his fingers and his penis into her vagina. MMM learned that

this was not the only incident that petitioner molested AAA as there were two previous occasions. MMM also learned that AAA did not report her ordeal to them out of fear that petitioner would spank her. MMM testified that when BBB reported the matter to her, petitioner and Luzviminda already left her house. After waiting for AAA's brothers to go to sleep, MMM, with a heavy heart, examined AAA's vagina and she noticed that the same was reddish and a whitish fluid was coming out from it. Spouses FFF and MMM were not able to sleep that night. The following morning, at about four o'clock, MMM called Luzviminda and petitioner to come to their house. MMM confronted Luzviminda about what petitioner did to her daughter, and consequently, she demanded that AAA should be brought to a doctor for examination. 18 MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas 19 (Dr. Katalbas), the Rural Health Officer of the locality who examined AAA and found no indication that she was molested. 20 Refusing to accept such findings, on December 12, 1996, MMM went to Dr. Joy Ann Jocson (Dr. Jocson), Medical Officer IV of the Bacolod City Health Office. Dr. Jocson made an unofficial written report 21 showing that there were "abrasions on both right and left of the labia minora and a small laceration at the posterior fourchette". She also found that the minor injuries she saw on AAA's genitals were relatively fresh; and that such abrasions were superficial and could disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her certification that her findings required the confirmation of the Municipal Health Officer of the locality.
TIDaCE

Subsequently, an amicable settlement 22 was reached between the two families through the DAWN Foundation, an organization that helps abused women and children. Part of the settlement required petitioner to depart from their house to avoid contact with AAA. 23 As such, petitioner stayed with a certain priest in the locality. However, a few months later, petitioner went home for brief visits and in order to bring his dirty clothes for laundry. At the sight of petitioner, AAA's father FFF was infuriated and confrontations occurred. At this instance, AAA's parents went to the National Bureau of Investigation (NBI) which assisted them in filing the three (3) counts of rape. However, the prosecutor's office only filed the two (2) instant cases.

Version of the Defense

Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and Luzviminda Ortega. 24 He is the second child of three siblings an elder brother and a younger sister. Petitioner denied the accusations made against him. He testified that: his parents and AAA's parents were good friends; when MMM left

AAA and her brothers to the care of his mother, petitioner slept in a separate room together with BBB and CCC while AAA slept together with Luzviminda and his younger sister; he never touched or raped AAA or showed his private parts to her; petitioner did not threaten AAA in any instance; he did not rape AAA in the former's comfort room, but he merely accompanied and helped AAA clean up as she defecated and feared the toilet bowl; in the process of washing, he may have accidentally touched AAA's anus; on December 1, 1996, petitioner together with his parents, went to AAA's house; 25 they were dancing and playing together with all the other children at the time; while they were dancing, petitioner hugged and lifted AAA up in a playful act, at the instance of which BBB ran and reported the matter to MMM, who at the time was with Luzviminda, saying that petitioner and AAA were having sexual intercourse; 26 petitioner explained to MMM that they were only playing, and that he could not have done to AAA what he was accused of doing, as they were together with her brothers, and he treated AAA like a younger sister; 27 BBB was lying; AAA's parents and his parents did not get angry at him nor did they quarrel with each other; petitioner and his parents peacefully left AAA's house at about nine o'clock in the evening; however, at about four o'clock in the morning, petitioner and his parents were summoned by MMM to go to the latter's house; upon arriving there they saw BBB being maltreated by his father as AAA pointed to BBB as the one who molested her; and MMM and Luzviminda agreed to bring AAA to a doctor for examination. 28 Luzviminda corroborated the testimony of her son. She testified that: her son was a minor at the time of the incident; CCC and BBB were the children of MMM in her first marriage, while AAA and the rest of her siblings were of the second marriage; CCC and BBB are half-brothers of AAA; when MMM entrusted AAA and her brothers to her sometime in August of 1996, she slept with AAA and her youngest daughter in a separate room from petitioner; on December 1, 1996, she was at AAA's house watching television and conversing with MMM, while FFF and Loreto were having a drinking spree in the kitchen; from where they were seated, she could clearly see all the children, including petitioner and AAA, playing and dancing in the dining area; she did not hear any unusual cry or noise at the time; while they were conversing, BBB came to MMM saying that petitioner and AAA were having sexual intercourse; upon hearing such statement, Luzviminda and MMM immediately stood up and looked for them, but both mothers did not find anything unusual as all the children were playing and dancing in the dining area; Luzviminda and MMM just laughed at BBB's statement; the parents of AAA, at that time, did not examine her in order to verify BBB's statement nor did they get angry at petitioner or at them; and they peacefully left AAA's house. However, the following day, MMM woke Luzviminda

up, saying that FFF was spanking BBB with a belt as AAA was pointing to BBB nor to petitioner as the one who molested her. At this instance, Luzviminda intervened, telling FFF not to spank BBB but instead, to bring AAA to a doctor for examination. Luzviminda accompanied MMM to Dr. Katalbas who found no indication that AAA was molested. She also accompanied her to Dr. Jocson. After getting the results of the examination conducted by Dr. Jocson, they went to the police and at this instance only did Luzviminda learn that MMM accused petitioner of raping AAA. Petitioner vehemently denied to Luzviminda that he raped AAA. Thereafter, MMM and Luzviminda went to their employer who recommended that they should seek advice from the Women's Center. At the said Center, both agreed on an amicable settlement wherein petitioner would stay away from AAA. Thus, petitioner stayed with a certain priest in the locality for almost two (2) years. But almost every Saturday, petitioner would come home to visit his parents and to bring his dirty clothes for laundry. Every time petitioner came home, FFF bad-mouthed petitioner, calling him a rapist. Confrontations occurred until an altercation erupted wherein FFF allegedly slapped Luzviminda. Subsequently, AAA's parents filed the instant cases. 29

The RTC's Ruling

On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail over the positive identification of petitioner as the perpetrator of the crime by AAA and BBB, who testified with honesty and credibility. Moreover, the RTC opined that it could not perceive any motive for AAA's family to impute a serious crime of Rape to petitioner, considering the close relations of both families. Thus, the RTC disposed of this case in this wise:
DCcSHE

FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y Felisario GUILTY beyond reasonable doubt as Principal by Direct Participation of the crime of RAPE as charged in Criminal Cases Nos. 9819083 and 98-19084 and there being no aggravating or mitigating circumstance, he is sentenced to suffer the penalty of Two (2) Reclusion Temporal in its medium period. Applying the Indeterminate Sentence Law, the accused shall be imprisoned for each case for a period of Six (6) years and One (1) day of Prision Mayor, as minimum, to Fifteen (15) years of Reclusion Temporal, as maximum. The accused is condemned to pay the offended party AAA, the sum of P100,000.00 as indemnification for the two (2) rapes (sic).
caCEDA

Aggrieved, petitioner appealed the RTC Decision to the CA.

30

Taking into consideration the age of petitioner and upon posting of the corresponding bail bond for his provisional liberty in the amount of P40,000.00, the RTC ordered the petitioner's release pending appeal. 31

The CA's Ruling

On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the petitioner's defense of denial could not prevail over the positive identification of the petitioner by the victim AAA and her brother BBB, which were categorical, consistent and without any showing of ill motive. The CA also held that the respective medical examinations conducted by the two doctors were irrelevant, as it is established that the slightest penetration of the lips of the female organ consummates rape; thus, hymenal laceration is not an element of rape. Moreover, the CA opined that petitioner acted with discernment as shown by his covert acts. Finally, the CA accorded great weight and respect to the factual findings of the RTC, particularly in the evaluation of the testimonies of witnesses.
HCETDS

Petitioner filed his Motion for Reconsideration 32 of the assailed Decision which the CA denied in its Resolution 33 dated November 7, 2001. Hence, this Petition based on the following grounds:
I. THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN FACTS OF SUBSTANCE AND VALUE WHICH IF CONSIDERED MIGHT AFFECT THE RESULT OF THE CASE. II. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FAILED TO APPRECIATE THE MEDICAL FINDINGS OF DR. LUCIFREE KATALBAS. III. THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE COURT, THAT PETITIONER-APPELLANT IN FACT COMMITTED AND IS CAPABLE OF COMMITTING THE ALLEGED RAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE SEVERAL OF THE ALLEGED VICTIM'S FAMILY MEMBERS AND THEIR RESPECTIVE MOTHERS WERE PRESENT IS IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE.

AaEcDS

IV. THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE FACTS SET FORTH BY THE ALLEGED VICTIM REGARDING THE CIRCUMSTANCES ATTENDING THE COMMISSION OF RAPE SOMETIME IN AUGUST 1996. 34

Petitioner argues that, while it is true that the factual findings of the CA are conclusive on this Court, we are not prevented from overturning such findings if the CA had manifestly overlooked certain facts of substance and value which if considered might affect the result of the case. Petitioner stresses that from the testimonies of AAA and BBB, it can be deduced that penetration was achieved; thus, AAA felt pain. Petitioner contends that assuming the allegations of AAA are true that petitioner inserted his fingers and his penis into her vagina, certainly such acts would leave certain abrasions, wounds and/or lacerations on the genitalia of AAA, taking into consideration her age at the time and the alleged size of petitioner's penis. However, such allegation is completely belied by the medical report of Dr. Katalbas who, one day after the alleged rape, conducted a medical examination on AAA and found that there were no signs or indications that AAA was raped or molested. Petitioner submits that the CA committed a grave error when it disregarded such medical report since it disproves the allegation of the existence of rape and, consequently, the prosecution failed to prove its case; thus, the presumption of innocence in favor of the petitioner subsists. Moreover, petitioner opines that like AAA, petitioner is also a child of the barrio who is innocent, unsophisticated and lacks sexual experience. As such, it is incredible and contrary to human reason that a 13-year-old boy would commit such act in the very dwelling of AAA, whose reaction to pain, at the age of six, could not be controlled or subdued. Petitioner claims that poverty was MMM's motive in filing the instant case, as she wanted to extort money from the parents of the petitioner. Petitioner points out that the medical report of Dr. Jocson indicated that the abrasions that were inflicted on the genitalia of AAA were relatively fresh and the same could disappear within a period of 3 to 4 days. Considering that Dr. Jocson conducted the medical examination on December 12, 1996, or after the lapse of eleven (11) days after the alleged incident of rape, and that AAA's parents only filed the instant case after almost a year, in order to deter Luzviminda from filing a case of slander by deed against FFF, it is not inconceivable that MMM inflicted said abrasions on AAA to prove their case and to depart from the initial confession of AAA that it was actually BBB who raped her. Finally, petitioner submits that AAA and BBB were merely coached by MMM to fabricate these stories. 35

On the other hand, respondent People of the Philippines through the Office of the Solicitor General (OSG) contends that: the arguments raised by the petitioner are mere reiterations of his disquisitions before the CA; the RTC, as affirmed by the CA, did not rely on the testimonies of both doctors since despite the absence of abrasions, rape is consummated even with the slightest penetration of the lips of the female organ; what is relevant in this case is the reliable testimony of AAA that petitioner raped her in August and December of 1996; even in the absence of force, rape was committed considering AAA's age at that time; as such, AAA did not have any ill motive in accusing petitioner; and it is established that the crime of rape could be committed even in the presence of other people nearby. Moreover, the OSG relies on the doctrine that the evaluation made by a trial court is accorded the highest respect as it had the opportunity to observe directly the demeanor of a witness and to determine whether said witness was telling the truth or not. Lastly, the OSG claims that petitioner acted with discernment when he committed the said crime, as manifested in his covert acts. 36 However, Republic Act (R.A.) No. 9344, 37 or the Juvenile Justice and Welfare Act of 2006, was enacted into law on April 28, 2006 and it took effect on May 20, 2006. 38 The law establishes a comprehensive system to manage children in conflict with the law 39 (CICL) and children at risk 40 with child-appropriate procedures and comprehensive programs and services such as prevention, intervention, diversion, rehabilitation, re-integration and after-care programs geared towards their development. In order to ensure its implementation, the law, particularly Section 8 41 thereof, has created the Juvenile Justice and Welfare Council (JJWC) and vested it with certain duties and functions 42 such as the formulation of policies and strategies to prevent juvenile delinquency and to enhance the administration of juvenile justice as well as the treatment and rehabilitation of the CICL. The law also provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65, 66, 67 and 68 of R.A. No. 9344's Transitory Provisions. 43 The said Transitory Provisions expressly provide:
Title VIII Transitory Provisions SEC. 64.Children in Conflict with the Law Fifteen (15) Years Old and Below. Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer. Such officer,

upon thorough assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child to prevention programs, as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child.
ETHIDa

SEC. 65.Children Detained Pending Trial. If the child is detained pending trial, the Family Court shall also determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a youth detention home. SEC. 66.Inventory of "Locked-up" and Detained Children in Conflict with the Law. The PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all children in conflict with the law under their custody.
SIcEHC

SEC. 67.Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict with the law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation Law.

SEC. 68.Children Who Have Been Convicted and are Serving Sentences. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable laws.
EAcHCI

Ostensibly, the only issue that requires resolution in this case is whether or not petitioner is guilty beyond reasonable doubt of the crime of rape as found by both the RTC and the CA. However, with the advent of R.A. No. 9344 while petitioner's case is pending before this Court, a new issue arises, namely, whether the pertinent provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time he committed the alleged rape, he was merely 13 years old. In sum, we are convinced that petitioner committed the crime of rape against AAA. In a prosecution for rape, the complainant's candor is the single most important factor. If the complainant's testimony meets the test of credibility, the accused can be convicted solely on that basis. 44 The RTC, as affirmed by the CA, did not doubt AAA's credibility, and found no ill motive for her to charge petitioner of the heinous crime of rape and to positively identify him as the malefactor. Both courts also accorded respect to BBB's testimony that he saw petitioner having sexual intercourse with his younger sister. While petitioner asserts that AAA's poverty is enough motive for the imputation of the crime, we discard such assertion for no mother or father like MMM and FFF would stoop so low as to subject their daughter to the tribulations and the embarrassment of a public trial knowing that such a traumatic experience would damage their daughter's psyche and mar her life if the charge is not true. 45 We find petitioner's claim that MMM inflicted the abrasions found by Dr. Jocson in the genitalia of AAA, in order to extort money from petitioner's parents, highly incredible. Lastly, it must be noted that in most cases of rape committed against young girls like AAA who was only 6 years old then, total penetration of the victim's organ is improbable due to the small vaginal opening. Thus, it has been held that actual penetration of the victim's organ or rupture of the hymen is not required. 46 Therefore, it is not necessary for conviction that the petitioner succeeded in having full penetration, because the slightest touching of the lips of the female organ or of the labia of the pudendum constitutes rape. 47 However, for one who acts by virtue of any of the exempting circumstances, although he commits a crime, by the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal liability arises. 48 Therefore, while there is a crime committed, no criminal liability attaches. Thus, in Guevarra v. Almodovar, 49we held:
aACHDS

[I]t is worthy to note the basic reason behind the enactment of the exempting circumstances embodied in Article 12 of the RPC; the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. In

expounding on intelligence as the second element of dolus, Albert has stated: "The second element of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and because . . . the infant (has) no intelligence, the law exempts (him) from criminal liability." It is for this reason, therefore, why minors nine years of age and below are not capable of performing a criminal act.
HCaIDS

In its Comment 50 dated April 24, 2008, the OSG posited that petitioner is no longer covered by the provisions of Section 64 of R.A. No. 9344 since as early as 1999, petitioner was convicted by the RTC and the conviction was affirmed by the CA in 2001. R.A. No. 9344 was passed into law in 2006, and with the petitioner now approximately 25 years old, he no longer qualifies as a child as defined by R.A. No. 9344. Moreover, the OSG claimed that the retroactive effect of Section 64 of R.A. No. 9344 is applicable only if the child-accused is still below 18 years old as explained under Sections 67 and 68 thereof. The OSG also asserted that petitioner may avail himself of the provisions of Section 38 51 of R.A. No. 9344 providing for automatic suspension of sentence if finally found guilty. Lastly, the OSG argued that while it is a recognized principle that laws favorable to the accused may be given retroactive application, such principle does not apply if the law itself provides for conditions for its application. We are not persuaded. Section 6 of R.A. No. 9344 clearly and explicitly provides:
SEC. 6.Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.
aCIHcD

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.
EScHDA

Likewise, Section 64 of the law categorically provides that cases of children 15 years old and below, at the time of the commission of the crime, shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer (LSWDO). What is controlling, therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL's age at the time of the promulgation of judgment but the CICL's age at the time of the commission of the offense. In short, by virtue of R.A. No. 9344, the age of criminal irresponsibility has been raised from 9 to 15 years old. 52 Given this precise statutory declaration, it is imperative that this Court accord retroactive application to the aforequoted provisions of R.A. No. 9344 pursuant to the well-entrenched principle in criminal law favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to the accused are given retroactive effect. 53 This principle is embodied in Article 22 of the Revised Penal Code, which provides:
Art. 22.Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws, a final sentence has been pronounced and the convict is serving the same.
EIcSTD

We also have extant jurisprudence that the principle has been given expanded application in certain instances involving special laws. 54 R.A. No. 9344 should be no exception. In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the deliberations on the bill in the Senate, quoted as follows:
Sections 67-69 On Transitory Provisions
Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages 34 to 35, may I humbly propose that we should insert, after Sections 67 to 69, the following provision:

ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS LAW PENDING THE CREATION OF THE OFFICE OF JUVENILE WELFARE AND RESTORATION (OJWR) AND THE LOCAL COUNCIL FOR THE PROTECTION OF CHILDREN (LCPC) WITHIN A YEAR, SHALL BE IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD SHALL UNDERTAKE DIVERSION PROGRAMS FOR THEM, PRIORITIZING THE YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND THE LIGHTER OFFENSES.
AaHTIE

The only question will be: Will the DSWD have enough facilities for these adult offenders? Senator Pangilinan Mr. President, according to the CWC, the DSWD does not have the capability at the moment. It will take time to develop the capacity. Senator Santiago. Well, we can say that they shall be transferred whenever the facilities are ready. Senator Pangilinan. Yes. Mr. President, just a clarification. When we speak here of children who do not have criminal liability under this law, we are referring here to those who currently have criminal liability, but because of the retroactive effect of this measure, will now be exempt. It is quite confusing.
HDICSa

Senator Santiago. That is correct. Senator Pangilinan. In other words, they should be released either to their parents or through a diversion program, Mr. President. That is my understanding. Senator Santiago. Yes, that is correct. But there will have to be a process of sifting before that. That is why I was proposing that they should be given to

the DSWD, which will conduct the sifting process, except that apparently, the DSWD does not have the physical facilities. Senator Pangilinan. Mr. President, conceptually, we have no argument. We will now have to just craft it to ensure that the input raised earlier by the good Senator is included and the capacity of the DSWD to be able to absorb these individuals. Likewise, the issue should also be incorporated in the amendment.
CTaIHE

The President. Just a question from the Chair. The moment this law becomes effective, all those children in conflict with the law, who were convicted in the present Penal Code, for example, who will now not be subject to incarceration under this law, will be immediately released. Is that the understanding?

Senator Pangilinan. Yes, Mr. President. Senator Santiago. They would immediately fall under . . . . Senator Pangilinan. The diversion requirements, Mr. President. Senator Santiago. Yes. The President. But since the facilities are not yet available, what will happen to them? Senator Santiago.

Well, depending on their age, which has not yet been settled . . . . . provides, for example, for conferencing family mediation, negotiation, apologies, censure, et cetera. These methodologies will apply. They do not necessarily have to remain in detention.
CTSDAI

Senator Pangilinan. Yes, that is correct, Mr. President. But it will still require some sort of infrastructure, meaning, manpower. The personnel from the DSWD will have to address the counseling. So, there must be a transition in terms of building the capacity and absorbing those who will benefit from this measure. The President. Therefore, that should be specifically provided for as an amendment. Senator Pangilinan. That is correct, Mr. President. The President. All right. Is there any objection? [Silence] There being none, the Santiago amendment is accepted. 55 xxx xxx xxx PIMENTEL AMENDMENTS xxx xxx xxx Senator Pimentel. xxx xxx xxx Now, considering that laws are normally prospective, Mr. President, in their application, I would like to suggest to the Sponsor if he could incorporate some kind of a transitory provision that would make this law apply also to those who might already have been convicted but are awaiting, let us say, execution of their penalties as adults when, in fact, they are juveniles.

Senator Pangilinan. Yes, Mr. President. We do have a provision under the Transitory Provisions wherein we address the issue raised by the good Senator, specifically, Section 67. For example, "Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer." So that would be giving retroactive effect. Senator Pimentel. Of cases that are still to be prosecuted. Senator Pangilinan. Yes. Senator Pimentel. What about those that have already been prosecuted? I was trying to cite the instance of juvenile offenders erroneously convicted as adults awaiting execution.
cSCADE

Senator Pangilinan. Mr. President, we are willing to include that as an additional amendment, subject to style. Senator Pimentel. I would certainly appreciate that because that is a reality that we have to address, otherwise injustice will really be . . . Senator Pangilinan. Yes, Mr. President, we would also include that as a separate provision. The President. In other words, even after final conviction if, in fact, the offender is able to prove that at the time of the commission of the offense he is a

minor under this law, he should be given the benefit of the law.
AaSIET

Senator Pimentel. Yes, Mr. President. That is correct. Senator Pangilinan. Yes, Mr. President. We accept that proposed amendment.
56

The Court is bound to enforce this legislative intent, which is the dominant factor in interpreting a statute. Significantly, this Court has declared in a number of cases, that intent is the soul of the law, viz.:
The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and intent of the lawmaker. The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to the intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature. 57

Moreover, penal laws are construed liberally in favor of the accused. 58 In this case, the plain meaning of R.A. No. 9344's unambiguous language, coupled with clear lawmakers' intent, is most favorable to herein petitioner. No other interpretation is justified, for the simple language of the new law itself demonstrates the legislative intent to favor the CICL.
EHTADa

It bears stressing that the petitioner was only 13 years old at the time of the commission of the alleged rape. This was duly proven by the certificate of live birth, by petitioner's own testimony, and by the testimony of his mother. Furthermore, petitioner's age was never assailed in any of the proceedings before the RTC and the CA. Indubitably, petitioner, at the time of the commission of the crime, was below 15 years of age. Under R.A. No. 9344, he is exempted from criminal liability.

However, while the law exempts petitioner from criminal liability for the two (2) counts of rape committed against AAA, Section 6 thereof expressly provides that there is no concomitant exemption from civil liability. Accordingly, this Court sustains the ruling of the RTC, duly affirmed by the CA, that petitioner and/or his parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the nature of actual or compensatory damages, and is mandatory upon a conviction for rape.
AIDSTE

The RTC, however, erred in not separately awarding moral damages, distinct from the civil indemnity awarded to the rape victim. AAA is entitled to moral damages in the amount of P50,000.00 for each count of rape, pursuant to Article 2219 of the Civil Code, without the necessity of additional pleading or proof other than the fact of rape. Moral damages are granted in recognition of the victim's injury necessarily resulting from the odious crime of rape. 59 A final note. While we regret the delay, we take consolation in the fact that a law intended to protect our children from the harshness of life and to alleviate, if not cure, the ills of the growing number of CICL and children at risk in our country, has been enacted by Congress. However, it has not escaped us that major concerns have been raised on the effects of the law. It is worth mentioning that in the Rationale for the Proposed Rule on Children Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, it was found that:
The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 raising the age of criminal irresponsibility from 9 years old to 15 years old has compounded the problem of employment of children in the drug trade several times over. Law enforcement authorities, Barangay Kagawads and the police, most particularly, complain that drug syndicates have become more aggressive in using children 15 years old or below as couriers or foot soldiers in the drug trade. They claim that Republic Act No. 9344 has rendered them ineffective in the faithful discharge of their duties in that they are proscribed from taking into custody children 15 years old or below who openly flaunt possession, use and delivery or distribution of illicit drugs, simply because their age exempts them from criminal liability under the new law. 60

The Court is fully cognizant that our decision in the instant case effectively exonerates petitioner of rape, a heinous crime committed against AAA who was only a child at the tender age of six (6) when she was raped by the petitioner, and one who deserves the law's greater protection. However, this consequence is inevitable because of the language of R.A. No. 9344, the wisdom of which is

not subject to review by this Court. 61 Any perception that the result reached herein appears unjust or unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a meaning detached from the manifest intendment and language of the law. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case. 62 WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 9819084 filed against petitioner Joemar F. Ortega are hereby DISMISSED. Petitioner is hereby referred to the local social welfare and development officer of the locality for the appropriate intervention program. Nevertheless, the petitioner is hereby ordered to pay private complainant AAA, civil indemnity in the amount of One Hundred Thousand Pesos (P100,000.00) and moral damages in the amount of One Hundred Thousand Pesos (P100,000.00). No costs.
IHTASa

Let a copy of this Decision be furnished the two Houses of Congress and the Juvenile Justice and Welfare Council (JJWC). SO ORDERED.

FIRST DIVISION
[G.R. No. 159208. August 18, 2006.] RENNIE DECLARADOR, petitioner, vs. HON. SALVADOR S. GUBATON, Presiding Judge, Branch 14, Roxas City, and FRANK BANSALES, respondents. DECISION CALLEJO, SR., J :
p

This is a Petition for Certiorari seeking to nullify the portion of the Decision 1 of the Regional Trial Court (RTC), Roxas City, Branch 14, in Criminal Case No. C1419-10-2002, suspending the sentence of respondent Frank Bansales and ordering his commitment to the Regional Rehabilitation Center for Youth at Concordia, Nueva Valencia, Guimaras.

Frank Bansales was born on June 3, 1985. He was a student at the Cabug-Cabug National High School in President Roxas, Capiz. At around 9:45 a.m. on July 25, 2002, Yvonne Declarador was stabbed to death. After conducting the autopsy on the cadaver, Rural Health Physician Pilar Posadas prepared a Post-Mortem Certificate indicating that the victim sustained 15 stab wounds on different parts of the body. 2 On October 10, 2002, an Information charging Frank Bansales with murder was filed by the Assistant Provincial Prosecutor with the Family Court. The accusatory portion reads:
That on or about 9:45 o'clock in the morning of July 25, 2002, inside a classroom in Cabug-Cabug National High School in President Roxas, Capiz, Philippines, and within the jurisdiction of this Honorable Court, the accused armed with a knife and with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault and stab with the said knife [his] teacher, one YVONNE DECLARADOR, thereby hitting and inflicting upon the latter multiple fatal stab wounds in the different parts of the body which caused the immediate death of the said Yvonne Declarador. The crime was committed with the attendance of the qualifying aggravating circumstances of evident premeditation and abuse of superior strength considering that the attack was made by the accused using a long knife which the latter carried along with him from his house to the school against his lady teacher who was unarmed and defenseless at that time and by inflicting upon the latter about fifteen (15) fatal knife wounds resulting to her death. 3

In view of the plea of the accused and the evidence presented, the RTC rendered judgment on May 20, 2003 finding Bansales guilty of murder. However, the court suspended the sentence of the accused and ordered his commitment to the Regional Rehabilitation for Youth at Concordia, Nueva Valencia, Guimaras. The dispositive portion of the decision reads:
In view of the Plea of Guilty by the accused and the evidence presented by the prosecution, the court finds CICL Frank Bansales GUILTY beyond reasonable doubt of the crime of Murder being charged. Being a minor, 17 years of age at the time of the commission of the offense charged, he is entitled to a special mitigating circumstance of minority, and is sentenced to suffer an indeterminate imprisonment of twelve (12) years and one (1) day to seventeen (17) years and four (4) month of reclusion temporal and to pay the heirs of Yvonne Declarador, a civil indemnity of

Seventy-Five Thousand Pesos (P75,000.00), Fifty Thousand Pesos (P50,000.00) for moral damages, Forty-Three Thousand Pesos (P43,000.00) for funeral expenses, attorney's fee of One Hundred Thousand Pesos (P100,000.00) and unearned income of One Million Three Hundred Seventy Thousand Pesos and Seventy Centavos (P1,370,000.70).
HCETDS

The parents (father and mother of juvenile Frank Bansales) and his teacher-in-charge at the Cabug-Cabug National High School of President Roxas, Capiz, are jointly subsidiarily liable in case of insolvency, as the crime was established to have been committed inside the classroom of Cabug-Cabug National High School and during school hours. Pursuant to the provision of P.D. 603, as amended, the sentence is suspended and the Child in conflict with the law (CICL), Frank Bansales is ordered committed to the Regional Rehabilitation Center for Youth at Concordia, Nueva Valencia, Guimaras. Furnish copies of this decision the Office of the Provincial Prosecutor, the Private Prosecutors, the DSWD Capiz Provincial Office, Roxas City, the Regional Rehabilitation for Youth, Concordia, Guimaras, the accused and his counsel, Atty. Ramcez John Honrado. SO ORDERED.
4

On June 2, 2003, the RTC set a preliminary conference for 10:00 a.m. of June 10, 2003 with the Public Prosecutor, the Social Welfare Officer of the court, and the Officer-in-Charge of the Regional Rehabilitation Center for Youth, considering that the accused would turn 18 on June 3, 2003. 5 Rennie Declarador, the surviving spouse of the deceased, filed a petition for certiorari under Rule 65 of the Rules of Court assailing that portion of the decision of the trial court's decision suspending the sentence of the accused and committing him to the rehabilitation center. Petitioner claimed that under Article 192 of Presidential Decree (P.D.) No. 603, as well as A.M. No. 02-1-18-SC (otherwise known as the Rule on Juveniles in Conflict with the Law), the benefit of a suspended sentence does not apply to a juvenile who is convicted of an offense punishable by death, 6 reclusion perpetua or life imprisonment. Citing the ruling of this Court in People v. Ondo, 7 petitioner avers that since Bansales was charged with murder punishable byreclusion perpetua to death, he is disqualified from availing the benefits of a suspended sentence.

In his Comment, Bansales avers that petitioner has no standing to file the petition, considering that the offense charged is a public crime brought in the name of the People of the Philippines; only the Office of the Solicitor General (OSG) is authorized to file a petition in court assailing the order of the RTC which suspended the service of his sentence. He further avers that Section 32 of A.M. No. 02-1-18-SC entitles the accused to an automatic suspension of sentence and allows the court to commit the juvenile to the youth center; hence, the court did not abuse its discretion in suspending the sentence of the accused. In reply, petitioner maintains that he has sufficient personality to file the petition. The OSG, for its part, posits that respondent's sentence cannot be suspended since he was charged with a capital offense punishable by reclusion perpetua to death. It insists that the entitlement of a juvenile to a suspended sentence does not depend upon the sentence actually imposed by the trial court but upon the imposable penalty for the crime charged as provided for by law. The issues for resolution are the following: (1) whether petitioner has standing to file the petition; (2) whether petitioner violated the doctrine of hierarchy of courts in filing his petition with this Court; and (3) whether respondent court committed grave abuse of discretion amounting to excess or lack of jurisdiction in ordering the suspension of the sentence of respondent Bansales and his commitment to the Regional Rehabilitation Center for the Youth. The petition is granted. On the first issue, we rule for the petitioner. Being the surviving spouse of the deceased and the offended party, he has sufficient personality to file the instant special civil action for certiorari. 8 This is in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object. 9 Moreover, the OSG has filed its comment on the petition and has joined the petitioner in his plea for the nullification of the assailed portion of the RTC decision. On the second issue, the rule is that a petition for review on certiorari which seeks to nullify an order of the RTC should be filed in the Court of Appeals in aid of its appellate jurisdiction. 10 A direct invocation of the original jurisdiction of the Court to issue writs of certiorari may be allowed only when there are special and important reasons therefor clearly and specifically set out in the petition. 11 This is an established policy necessary to prevent inordinate demands upon this Court's time and attention which are better devoted to those matters

within its exclusive jurisdiction, and to prevent further overcrowding of the Court's docket. 12 However, in Fortich v. Corona, 13 the Court held that considering the nature and importance of the issues raised and in the interest of speedy justice, and to avoid future litigations, the Court may take cognizance of a petition for certioraridirectly filed before it. 14 Moreover, this Court has suspended its own rules and excepted a particular case from their operation whenever the interests of justice so require. In this case, we resolve to take cognizance of the case, involving as it does a juvenile and the application of the Rule on Juveniles in Conflict with the Law. The charge against respondent Bansales was murder with the qualifying circumstance of either evident premeditation or abuse of superior strength. Under Article 248 of the Revised Penal Code, as amended by Republic Act (Rep. Act) No. 7659, the imposable penalty for the crime is reclusion perpetua to death. The trial court found him guilty of murder. Article 192 of P.D. No. 603, as amended, provides:
Art. 192.Suspension of Sentence and Commitment of Youthful Offender. If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him, the court, shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court, upon application of the youthful offender and if it finds that the best interest of the public, as well as that of the offender will be served thereby, may suspend all further proceedings and commit such minor to the custody or care of the Department of Social Welfare and Development or to any training institution operated by the government or any other responsible person until he shall have reached twenty-one years of age, or for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare and Development or the government training institution or responsible person under whose care he has been committed.

Upon receipt of the application of the youthful offender for suspension of his sentence, the court may require the Department of Social Welfare

and Development to prepare and submit to the court a social case study report over the offender and his family. The youthful offender shall be subject to visitation and supervision by the representative of the Department of Social Welfare and Development or government training institution as the court may designate subject to such conditions as it may prescribe. The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted for an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals.

The law was reproduced in A.M. No. 02-1-18-SC where, except for those under paragraph 3, Section 32 of the law, the sentence of the accused is automatically suspended:
Sec. 32.Automatic Suspension of Sentence and Disposition Orders. The sentence shall be suspended without need of application by the juvenile in conflict with the law. The court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence which shall be attended by the social worker of the Family Court, the juvenile, and his parents or guardian ad litem. It shall proceed to issue any or a combination of the following disposition measures best suited to the rehabilitation and welfare of the juvenile: care, guidance, and supervision orders; Drug and alcohol treatment; Participation in group counseling and similar activities; Commitment to the Youth Rehabilitation Center of the DSWD or other centers for juvenile in conflict with the law authorized by the Secretary of DSWD. The Social Services and Counseling Division (SSCD) of the DSWD shall monitor the compliance by the juvenile in conflict with the law with the disposition measure and shall submit regularly to the Family Court a status and progress report on the matter. The Family Court may set a conference for the evaluation of such report in the presence, if practicable, of the juvenile, his parents or guardian, and other persons whose presence may be deemed necessary. The benefits of suspended sentence shall not apply to a juvenile in conflict with the law who has once enjoyed suspension of sentence, or to one who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the juvenile is already eighteen (18) years of age or over.

EcSCAD

Thus, it is clear that a person who is convicted of an offense punishable by death, life imprisonment, or reclusion perpetua is disqualified from availing the benefits of a suspended sentence. "Punishable" is defined as "deserving of, or capable, or liable to punishment; liable to be punished; may be punished; liable to punishment." 15 The word "punishable" does not mean "must be punished," but "liable to be punished" as specified. 16 In U.S. v. Villalon, 17 the Court defined punishable as "deserving of, or liable for, punishment." Thus, the term refers to the possible, not to the actual sentence. It is concerned with the penalty which may be, and not which is imposed. The disqualification is based on the nature of the crime charged and the imposable penalty therefor, and not on the penalty imposed by the court after trial. It is not the actual penalty imposed but the possible one which determines the disqualification of a juvenile. 18 Despite the disqualification of Bansales, respondent Judge, nevertheless, ordered the suspension of the sentence meted against him. By this act, respondent Judge committed grave abuse of discretion amounting to excess of jurisdiction. We note that, in the meantime, Rep. Act No. 9344 took effect on May 20, 2006. Section 38 of the law reads:
SEC. 38.Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court on Juveniles in Conflict with the Law.

The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or more at the time of the pronouncement of his/her guilt. The other disqualifications in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from

Section 38 of Rep. Act No. 9344. Evidently, the intention of Congress was to maintain the other disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from having their sentences suspended. Case law has it that statutes in pari materia should be read and construed together because enactments of the same legislature on the same subject are supposed to form part of one uniform system; later statutes are supplementary or complimentary to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislations on the subject and to have enacted the new act with reference thereto. 19 Statutes in pari materiashould be construed together to attain the purpose of an expressed national policy. 20 IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Order of the respondent Judge suspending the sentence of respondent Frank Bansales is NULLIFIED. SO ORDERED.

FIRST DIVISION
[G.R. No. 130602. March 15, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MICHAEL FRONDA y QUINDARA, ANTONINO FLORA y SABADO, JR., LAURO MILLAMINA y CINENSE, JR., accused. MICHAEL FRONDA y QUINDARA, accused-appellant.

The Solicitor General for plaintiff-appellee. Rodel H. Panganiban for accused-appellant.

SYNOPSIS

Accused-appellant and his other co-accused were found guilty of selling and delivering marijuana on a buy-bust operation. Accused, however, vigorously denied having anything to do with the alleged brick of marijuana recovered by the police.
aITECD

The identity of the offenders, which must be proved beyond reasonable doubt, was not established by the prosecution. Poseur-buyer PO2 Bedey testified that the place of the transaction was dark at the time and he could not identify the person or persons he was dealing with. The police officers who conducted the operation also admitted that they could not identify the person or persons who transacted with Bedey and delivered the brick of marijuana; neither did they bother to enter the room where the marijuana was obtained. Hence, there being no moral certainty on the guilt of the accused, the Court acquitted appellant and his co-accused. SYLLABUS 1.REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; IDENTIFICATION OF THE CULPRIT; IN THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT AS TO THE IDENTITY OF THE OFFENDER, ACCUSED'S RIGHT OF PRESUMPTION OF INNOCENCE STANDS. In every criminal prosecution, the identity of the offender or offenders, like the crime itself, must be established by proof beyond reasonable doubt. Identification which does not preclude a reasonable possibility of mistake cannot be accorded any evidentiary force. Thus, where eyewitnesses contradict themselves on the identity of the malefactor, the element of reasonable doubt is injected and cannot be lightly disregarded. In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right of presumption of innocence until the contrary is proved is not overcome, and he is entitled to an acquittal even though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence for the prosecution. . . . In view of the admissions by the police officers who conducted the "operation" that they could not identify the person or persons who transacted with [their poseur-buyer] and delivered the brick of marijuana, and that they did not bother to enter the room where the marijuana was obtained, there is no moral certainty that . . . the accused were responsible for the delivery of marijuana.

2.ID.; ID.; ID.; ID.; TO BE CAUGHT "FLAGRANTE DELICTO" IMPLIES POSITIVE IDENTIFICATION BY EYEWITNESS OR EYEWITNESSES. [T]he trial court's finding that FRONDA and the other accused were "literally caught flagrante delicto, delivering or dealing in a brick of marijuana to Police Officer Bedey" is not supported by the evidence adduced by the prosecution. Flagrante delicto means "[I]n the very act of committing the crime." To be caught flagrante delicto, therefore, necessarily implies positive identification by the eyewitness or eyewitnesses. Such is a "direct evidence" of culpability, which is "that which proves the fact in dispute without the aid of any inference or presumption" in contrast to circumstantial evidence which is "the proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence." 3.ID.; ID.; CIRCUMSTANTIAL EVIDENCE; DISTINGUISHED FROM DIRECT EVIDENCE; WHEN SUFFICIENT FOR CONVICTION. Circumstantial evidence is not a weaker form of evidence vis--vis direct evidence, for our rules make no distinction between direct evidence of fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct; for in either case, the trier of fact must be convinced beyond reasonable doubt of the guilt of the accused. Where the evidence is purely circumstantial, there should be an even greater need than usual to apply with vigor the rule that the prosecution cannot depend on the weakness of the defense and that any conviction must rest on nothing less than a moral certainty of guilt of the accused. Under the Rules of Court, circumstantial evidence would be sufficient for conviction if the following concur: (a) there is more than one circumstance; (b) the fact from which the inferences are derived are proved; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person; i.e., the circumstances proven must be consistent with each other and consistent with the hypothesis that the accused is guilty. 4.CIVIL LAW; CHILD AND YOUTH WELFARE CODE; APPLICATION FOR SUSPENSION OF SENTENCE THEREUNDER, NOT A WAIVER OF RIGHT TO APPEAL. [A]n application for suspension of sentence under the provisions of Article 192 of the Child and Youth Welfare Code is not the same as an application for probation, which is deemed a waiver of their right to appeal. There is nothing in the said Code which prohibits a youthful offender from appealing his

conviction after he proves to be incorrigible and the trial court proceeds to pronounce its judgment of guilty and sentence against him. In fact, as amended by P.D. No. 1179, Article 197 of the Code expressly provides that the convicted offender may still apply for probation under the provisions of P.D. No. 968. Conversely, the accused may pursue his appeal if he chooses not to avail himself of the benefits of probation. Although the right to appeal is a statutory right, it is an essential part of the judicial system. Courts should proceed with caution so as not to deprive a party of this right; they should, instead, afford every partylitigant the amplest opportunity for the proper and just disposition of his cause, free from the constraints of technicalities. 5.REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHT TO APPEAL; EFFECT OF APPEAL BY ONLY ONE ACCUSED; EFFECT OF SUSPENSION OF SENTENCE OF MINOR DELINQUENTS. [E]ven if Flora and Millamina did not pursue their appeal, the acquittal of FRONDA and our finding that the prosecution has not established the guilt of all the accused beyond reasonable doubt must, perforce, benefit Flora and Millamina. First, neither the charge of conspiracy nor their individual liability was proved beyond reasonable doubt. Second, under Section II (a), Rule 122 of the Rules on Criminal Procedure, an "[a]ppeal taken by one or more of several accused shall not affect those who did not appeal, except in so far as the judgment of the appellate court is favorable and applicable to the latter." After all, the grant of suspended sentence to accused Flora and Millamina does not mean that they are already exonerated from the crime charged; only that the pronouncement of judgment and the service of sentence are suspended until their return to court for final disposition depending on their conduct and the progress of rehabilitation. Should the criminal case against them be dismissed based on their observance of good conduct, it would only mean that they would suffer no penalty. DECISION DAVIDE, JR., C.J :
p

Accused Michael Fronda [hereafter FRONDA]; Antonino Flora, Jr. and Lauro Millamina, Jr., were charged with and tried for violation of Section 4, Article II of R.A. No. 6425, 1 as amended, before the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 14570-R under an information whose accusatory portion reads as follows:

That on or about the 8th day of October, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there wilfully, unlawfully and feloniously sell and deliver to PO3 June Corpuz and PO2 Ceasary Harry Bedey, members of the Philippine National Police, Baguio City, one [1] kilo marijuana leaves wrapped with newspaper, a prohibited drug, well knowing that the sale and delivery of such drug is prohibited without authority of law to do so, in violation of the aforementioned provisions of law. CONTRARY TO LAW.
2

Accused entered a plea of not guilty upon arraignment. At the trial, the prosecution presented as witnesses PO2 Ceasary Harry Bedey and PO3 June Corpuz, who arrested the accused, and Police Senior Inspector Alma Margarita Villaseor, the forensic chemist. After its Demurrer to Evidence was denied, the defense presented as witnesses the three accused and their landlady, Mrs. Lolita Flora. The prosecution's evidence was faithfully summarized by the Office of the Solicitor General [OSG] in its Manifestation and Motion in Lieu of Appellee's Brief as follows:
On October 8, 1998, around 12:00 high noon, Police Officer Cesary Harry Bedey, Desk Officer at the Baguio City Police Office, was informed by a "concerned citizen" thru telephone that somebody was engaged in selling marijuana at No. 341 A. Bonifacio Street, Baguio City (TSN, December 11, 1996, p. 3). The caller mentioned the names of Michael Fronda, Antonino Flora, Jr. and Lauro Millamina, Jr., as the marijuana dealers (TSN,ibid., p. 6). After referring the matter to his superior, Officer Bedey was advised to look for Police Officer June Corpuz who was also a resident of No. 341 A. Bonifacio Street (TSN, ibid., p. 4).
LLphil

When Officer June Corpuz arrived at the police station around 8:30 in the evening, Bedey immediately relayed to him the information about the drug dealing activities at the given address (TSN, ibid., pp. 4-5). Both of them then agreed to verify "the information" and proceeded to 341 Bonifacio Street, which was also Corpuz' residence (TSN, ibid., p. 5).

There were actually two (2) houses at 341 A. Bonifacio Street. The first house was the residence of the land lady, Lolita Flora, while the second house was a two-storey building leased to bedspacers. There were 2 rooms at the first floor and also two rooms at the second floor. One room at the first floor was occupied by Fronda, Flora and Millamina and beside it was another room occupied by one Gilbert Mugot. At the second floor, Officer Corpuz occupied the room directly above that of the accused (TSN, December 3, 1996, pp. 8-9). To avoid detection, Corpuz then went ahead of Bedey and a woman companion. Upon reaching the place, he joined the drinking session held at the room of Gilbert Mugot (TSN, December 3, 1996, pp. 4-5, 10). Meanwhile, Bedey and his woman companion following Corpuz, proceeded to the house of the landlady and inquired where the appellant and his co-accused resided (TSN, December 3, 1996, pp. 5-6; TSN, December 11, 1996, p. 5). After Lolita Flora had pointed to one of the rooms at the first floor, Bedey proceeded there and knocked at the door (TSN, December 11, 1996, p. 7). Somebody from inside then pulled the door open half-way and asked, "What do you want?" (TSN, ibid., pp. 8-9, 11, 13). As soon as the door was opened, Bedey stepped backwards, about 3 to 4 meters (TSN, December 11, 1996, p. 9), and then asked if he could buy marijuana (TSN, ibid., pp. 9, 13). Someone answered, "there is," and a square package wrapped in newspaper about 1 to 2 inches thick, 8 1/2 inches in width and 11 inches long was then handed to Bedey (TSN, ibid., pp. 9, 15, 16). Bedey immediately opened the package a little, smelled it and determined that the contents were marijuana (TSN, ibid., p. 20). At the same time, he asked, "How much?" (TSN, ibid., pp. 13-18). When somebody answered "P1,000.00," Bedey immediately shouted "positive" (TSN, ibid., pp. 19-20). Upon hearing Bedey, officer June Corpuz immediately rushed towards him from the next room [TSN, December 3, 1996, p. 11]. He and Bedey then advised/invited the occupants of the room to come out [TSN, December 3, 1996, ibid.; December 11, 1996, p. 20] Michael Fronda, Lauro Millamina, Jr., and Antonino Flora, Jr. came out of the room (TSN, December 11, 1996, p. 22; December 3, 1996, pp. 11, 14, 16-17).

The three were immediately brought to the police station and charged with selling marijuana (TSN, December 3, 1996, p. 18; December 11, 1996, p. 32). Meanwhile, the brick of marijuana was turned over to the PNP Crime Laboratory where Alma Margarita Villaseor, Forensic Chemist, subjected it to physical, chemical and confirmatory tests (TSN, December 3, 1996, p. 38). The package, weighing 1.1 kilograms, was confirmed to be marijuana, a prohibited drug (TSN, ibid., pp. 38-40, Exhibit "D").

The accused's defense is denial. Their version of the incident was also succinctly summarized by the OSG in its Manifestation and Motion in Lieu of Appellee's Brief, thus:
[The accused] claimed that they hailed from Talogtog, Nueva Ecija and were freshmen students at the University of Baguio (TSN, February 4, 1997, pp. 13-14; February 6, 1997, p. 2). Since June 1996, they stayed as bedspacers at the boarding house/apartment of Mrs. Lolita Flora at No. 341 A. Bonifacio Street, Baguio City (TSN, February 4, 1997, p. 3; February 6, 1997, ibid.). From June 16 to September 30, 1996, only the three of them occupied a room located at the first floor of the apartment. However, on October 1, 1996, one Ramil (Rommel) Oroy from Kapangan, Benguet, was taken in by Mrs. Lolita Flora as another bedspacer and stayed with them in their room (TSN, February 4, 1997, pp. 3-4; February 5, 1997, p. 2; February 6, 1997, p. 8). Around 7:00 o'clock in the evening of October 8, 1996, Fronda, Flora and Millamina came home one after the other from their respective classes at the University of Baguio. At the time, Oroy was inside, talking with two (2) unidentified visitors. They did not mind Oroy and his visitors and proceeded to eat their supper. Thereafter, the three of them went to sleep (TSN, February 4, 1997, pp. 6-7, 19-24; February 5, 1997, pp. 9-10; February 6, 1997, pp. 4-6). They were suddenly awakened when they heard someone calling their names and ordering them to go out of their room (TSN, February 4, 1997, pp. 8-9; February 5, 1997, p. 4.). As soon as they went out, they were surprised when they were handcuffed and brought to the police station for allegedly dealing in marijuana (TSN, February 4, 1997, pp. 912; February 5, 1997, pp. 6-8; February 6, 1997, pp. 6-7).

Mrs. Lolita Flora confirmed on the stand that, indeed, on October 8, 1996, appellant Fronda, Flora and Millamina were sharing their room with a new boarder, Rommel/Ramil Oroy.

All the accused vigorously denied having anything to do with the brick of marijuana recovered on the night of 8 October 1996, which they allegedly saw for the first time only during the trial. 3 FRONDA claimed that he did not even know what a marijuana was. 4 Millamina denied that he was engaged in selling marijuana, and that any one of them handed the marijuana to PO2 Bedey. 5 In its Decision of 6 March 1997, 6 the trial court found the prosecution's evidence sufficient to prove that the accused conspired in delivering or dealing in marijuana. It reasoned that (1) the accused were literally caught flagrante delicto, delivering or dealing a brick of marijuana to PO2 Bedey; (2) only the accused came out of the room where the brick of marijuana was obtained; (3) the marijuana was sold and delivered by the three of them, if not by one of them; (4) since the accused chose to cover up for each other, they must have acted together in dealing in the marijuana; and (5) notwithstanding the fact that no money was exchanged, there was a transaction of the delivery of the marijuana and the "twin elements of the selling transaction and the corpus delicti were present to uphold a conviction under Section 4, Article II of the Dangerous Drugs Act, as amended." The trial court did not find credible accused's claim that they were mere students, since their classcards, enrollment or registration papers, or even their teachers and classmates were not presented. It dismissed as concocted and fabricated the defense's story that a fourth bedspacer named Rommel Oroy/Ramil Uroy was inside the room of the accused with two unidentified visitors in the night of 8 October 1996 when the marijuana was obtained by PO2 Bedey, considering that PO3 Corpuz testified categorically that only the three accused came out of the room as occupants. If indeed Ramil Oroy and his two unidentified visitors were inside the room on that occasion, they could not have escaped the attention of the policemen, there being only one door to the room and the two policemen were outside that door when they asked the occupants to come out. Besides, when caught, the accused did not tell the police that there were other occupants in the room. The Court disbelieved Lolita Flora's corroborative testimony that a certain Ramil Oroy was also a bedspacer in that room and considered it as a last minute attempt on her part to help out the three accused to create a doubt on who were inside the room at the time.

The trial court thus convicted all the accused of violation of Republic Act No. 6425, as amended, and sentenced them to suffer the penalty of reclusion perpetua and to pay a fine of P500,000, plus costs. On 11 March 1997, all the three accused filed a Notice of Appeal. 7 However, two days later, Flora and Millamina filed a Motion for Suspension of Sentence 8 under the provision of P.D. No. 603, as amended. 9 Pending its resolution, the trial court issued an Order 10 holding in abeyance Flora and Millamina's Notice of Appeal until their motion was resolved. It also stated that FRONDA's appeal would be forwarded to us only after the resolution of his co-accused's motion for suspension of sentence.
dctai

During the hearing of the motion, the trial court informed Atty. Jaime Ulep, Flora and Millamina's new counsel, that should the Supreme Court ultimately rule that the movants were not entitled to a suspended sentence, they might lose their right to appeal because by their move to avail themselves of the benefit of the suspended sentence, they could be deemed to have withdrawn their appeal and not to have disputed the trial court's finding of guilt. Thus, Flora and Millamina were required to manifest to the court whether
(1)they are pursuing only the appeal of the decision in this case and therefore their appeal should be forwarded immediately to the Supreme Court and that they are withdrawing their Motion for Suspension of Sentence which shall no longer be resolved by the court; or (2)they are pursuing only the motion to suspend sentence and therefore withdrawing their notice of appeal in which case the court will resolve the Motion to Suspend Sentence immediately; or (3)they are pursuing their motion for a suspension of sentence which should therefore be resolved by the court and in the event the accused minors do not qualify, their appeal of the Decision of the court convicting them should nevertheless be forwarded to the Supreme Court as they are also pursuing the appeal. 11

In his Manifestation of 26 May 1997 Atty. Ulep stated that accused Flora and Millamina were "pursuing their motion for a suspension of sentence and/or for the suspension of further proceedings under Article 192 of P.D. 603, as amended"; and in the possibility that they would not qualify, they would file a petition to be admitted to bail and to avail themselves of their right to appeal the decision. 12

On 4 June 1997, the trial court granted Flora and Millamina's motion for suspension of sentence 13 and amended its decision by (1) reducing their penalty to an indeterminate penalty ranging from 6 years and 1 day of prision mayor as minimum to 14 years, 8 months and 1 day of reclusion temporal as maximum on ground of the privileged mitigating circumstance of minority, both being below 18 years of age at the time the offense was committed; [2] suspending their sentence for two years from 4 June 1997; [3] releasing Flora and Millamina and committing them to the custody of their parents and grandparents, respectively, with the supervision of the Department of Social Welfare and Development [DSWD] in Nueva Ecija; and [4] stating that should they behave properly, they would be discharged and their case would be dismissed; otherwise, they would be returned to the court for pronouncement of their penalty.

In its Order of 9 June 1997, the trial court forwarded to us the records of the case "for purposes of the appeal of Michael Fronda only," 14 and ordered FRONDA's commitment to the Bureau of Corrections in Muntinlupa City for preventive imprisonment pending appeal. 15 In our Resolution of 19 January 1998 we accepted not only the appeal of FRONDA, but also those of Flora and Millamina. The acceptance of the appeals of Flora and Millamina was erroneous because they did not appeal from the Amended Decision. Consequently, we shall deal only with FRONDA's appeal. FRONDA alleges that (a) the trial court erred in convicting him solely on the basis of circumstantial evidence, and in totally disregarding the evidence for the defense; (b) the prosecution's evidence is insufficient to warrant a conviction; and (c) there being no factual or legal basis, the decision is a complete nullity. For the State, the Office of the Solicitor General (OSG) filed a Manifestation and Motion in Lieu of Appellee's Brief, submitting that the prosecution's evidence fails to meet the quantum of evidence required to overcome the constitutional presumption of innocence; and thus, regardless of the supposed weakness of their defense, all the accused are entitled to acquittal. It therefore recommends the acquittal not only of appellant FRONDA, but also of his co-accused, Flora and Millamina. In every criminal prosecution, the identity of the offender or offenders, like the crime itself, must be established by proof beyond reasonable doubt. Identification which does not preclude a reasonable possibility of mistake cannot

be accorded any evidentiary force. 16 Thus, where eyewitnesses contradict themselves on the identity of the malefactor, the element of reasonable doubt is injected and cannot be lightly disregarded. 17 In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right of presumption of innocence until the contrary is proved is not overcome, and he is entitled to an acquittal 18 even though his innocence may be doubted. 19 The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence for the prosecution. 20 In the instant case, as correctly pointed out by both FRONDA and the OSG, the trial court's finding that FRONDA and the other accused were "literally caught flagrante delicto, delivering or dealing in a brick of marijuana to Police Officer Bedey" is not supported by the evidence adduced by the prosecution. Flagrante delicto means "[i]n the very act of committing the crime." 21 To be caught flagrante delicto, therefore, necessarily implies positive identification by the eyewitness or eyewitnesses. Such is a "direct evidence" of culpability, which is "that which proves the fact in dispute without the aid of any inference or presumption" 22 in contrast to circumstantial evidence which is "the proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence." 23 Circumstantial evidence, however, is not a weaker form of evidence vis--vis direct evidence, for our rules make no distinction between direct evidence of fact and evidence of circumstances from which the existence of a fact may be inferred. 24 No greater degree of certainty is required when the evidence is circumstantial than when it is direct; for in either case, the trier of fact must be convinced beyond reasonable doubt of the guilt of the accused. 25 In this case, as pointed out by the parties, neither PO2 Bedey, who transacted with and obtained the brick of marijuana from "somebody" in the room at 341 A. Bonifacio St., Baguio City, nor PO3 Corpuz, who rushed to the scene upon hearing Bedey shout "Positive," could identify the person or persons Bedey was talking to and dealing with prior to and at the time the brick of marijuana was obtained. Thus, the trial court had to resort to inference that since Bedey obtained the brick of marijuana from "somebody" from the same room occupied by FRONDA and the other accused who, when their names were called, "volunteered" as occupants of the room, then one or some of them must be responsible for selling and delivering to Bedey the marijuana.

From the testimony of PO2 Bedey on the circumstances resulting in the delivery of a brick of marijuana, it is clear that none of the accused was caught flagrante delicto selling or delivering marijuana. Due to the darkness and lack of illumination inside and outside the door where the transaction took place, Bedey could not identify the person he was dealing with. He was not even sure how many person or persons he was talking to that night in question. Significantly, he admitted that there were several persons who came out of the room other than the accused. Like PO3 Corpuz, he did not even bother to enter the room to check whether there were persons other than the accused. When Bedey was given the final chance to identify who among the three accused talked to him and handed him the marijuana, he could not do so. 26 PO3 Corpuz, who was in another room when Bedey obtained the marijuana, neither witnessed the transaction leading to the delivery of marijuana. His testimony that only the accused came out of the room was materially contradicted by Bedey's testimony that besides the accused, there were other persons who came out of the room. Moreover, Corpuz also admitted during cross-examination that, like Bedey, he did not enter the room of the accused and thus could not definitely rule out the possibility that there were other persons in the room aside from the three. 27 In view of the admissions by the police officers who conducted the "operation" that they could not identify the person or persons who transacted with Bedey and delivered the brick of marijuana, and that they did not bother to enter the room where the marijuana was obtained, there is no moral certainty that FRONDA and the other accused were responsible for the delivery of marijuana to Bedey.
LLphil

Indeed, far from having been caught flagrante delicto, the evidence against FRONDA and his co-accused is, at most, only circumstantial in nature. Where the evidence is purely circumstantial, there should be an even greater need than usual to apply with vigor the rule that the prosecution cannot depend on the weakness of the defense and that any conviction must rest on nothing less than a moral certainty of guilt of the accused. 28 Under the Rules of Court, circumstantial evidence would be sufficient for conviction if the following concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proved; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the

exclusion of all others, as the guilty person; i.e., the circumstances proven must
be consistent with each other and consistent with the hypothesis that the accused is guilty. 29

The only circumstantial evidence clearly established by the prosecution against the accused are the following: (1) the fact that a brick of marijuana was obtained by Bedey from "somebody" inside the room which the appellants were also occupying; and (2) when called out, the accused "volunteered" to come out of the room. The concordant combination and cumulative effect of these circumstances do not satisfy the requirements of Section 4, Rule 133 of the Rules of Court. They do not conclusively establish the guilt of the accused beyond any reasonable doubt. They do not exclude the possibility that other persons might have been the ones who transacted with Bedey and handed him the marijuana principally because the police officers failed to seal off the area from other curious boarders and to enter the room to ensure that no other persons were still inside that room. Notably, Bedey testified that there were other persons besides the accused who came out of the room. The foregoing disquisitions render unnecessary a discussion on the trial court's finding of conspiracy. A final word on the fate of Flora and Millamina is in order. We disagree with the view of the trial court that the application and grant of Flora and Millamina's suspension of sentence presupposed their acceptance of the finding of guilt against them and constituted a waiver of the right to appeal. It must be emphasized that an application for suspension of sentence under the provisions of Article 192 of the Child and Youth Welfare Code is not the same as an application for probation, which is deemed a waiver of their right to appeal. 30 There is nothing in the said Code which prohibits a youthful offender from appealing his conviction after he proves to be incorrigible and the trial court proceeds to pronounce its judgment of guilty and sentence against him. 31 In fact, as amended by P.D. No. 1179, Article 197 of the Code expressly provides that the convicted offender may still apply for probation under the provisions of P.D. No. 968. Conversely, the accused may pursue his appeal if he chooses not to avail himself of the benefits of probation. Although the right to appeal is a statutory right, it is an essential part of the judicial system. Courts should proceed with caution so as not to deprive a party of this right; they should, instead, afford every party-litigant the amplest opportunity for the proper and just disposition of his cause, free from the constraints of technicalities. 32

At any rate, even if Flora and Millamina did not pursue their appeal, the acquittal of FRONDA and our finding that the prosecution has not established the guilt of all the accused beyond reasonable doubt must, perforce, benefit Flora and Millamina. 33 First, neither the charge of conspiracy nor their individual liability was proved beyond reasonable doubt.Second, under Section 11 (a), Rule 122 of the Rules on Criminal Procedure, an "[a]ppeal taken by one or more of several accused shall not affect those who did not appeal, except in so far as the judgment of the appellate court is favorable and applicable to the latter." After all, the grant of suspended sentence to accused Flora and Millamina does not mean that they are already exonerated from the crime charged; only that the pronouncement of judgment and the service of sentence are suspended 34 until their return to court for final disposition depending on their conduct and the progress of rehabilitation. 35 Should the criminal case against them be dismissed based on their observance of good conduct, it would only mean that they would suffer no penalty. 36

WHEREFORE, the Amended Decision of the RTC, Baguio City, Branch 6, in Criminal Case No. 14570-R is hereby REVERSED. A new judgment is hereby rendered ACQUITTING MICHAEL FRONDA y QUINDARA and his co-accused ANTONINO FLORA y SABADO, JR., and LAURO MILLAMINA y CINENSE, JR. The Director of the Bureau of Corrections is directed to immediately release from confinement MICHAEL FRONDA unless his further detention is warranted by virtue of any lawful cause, and to make a report of such release within five (5) days from notice hereof.
cdphil

Costs de oficio. SO ORDERED.

SECOND DIVISION
[G.R. No. 101451. March 23, 1993.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEX REGALARIO Y VILLAGRACIA, CARLOS PABILLAR Y VILLON, JOSE QUINIQUITO Y MAGNATA, ROLANDO DE CHAVEZ Y MONTALBO, AUGURIO VILLAGRACIA, JR. Y ISABELO and ALBERTO DESEMBRANA, accused-appellants.

The Solicitor General for plaintiff-appellee. Rosario C. Salamillas for accused-appellants.

SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; JURISDICTION; PRINCIPLE OF ESTOPPEL BY LACHES TO BAR ATTACK ON JURISDICTION APPLICABLE TO CRIMINAL CASES; CASE AT BAR. Ordinarily, therefore, the appeal herein could have been dismissed outright for being time-barred. The records, however, do not show that either the public or private prosecutor moved for the dismissal of said appeal or objected to the aforesaid order of the trial court directing the elevation of the records of the case to this Court, obviously for appellate review. It was only after appellants had filed their brief that appellee, in its brief, raised the issue of the belated appeal and, inferentially, the lack of appellate jurisdiction of this Court in this case. However, the principle of estoppel by laches to bar attacks on jurisdiction has been adopted and repeatedly applied by this Court, notably in Tijam, et al. vs. Sibonghanoy, et al., and in several cases which followed thereafter, including criminal cases. Thus, People vs. Tamani, although the appeal of the accused was demonstrably filed out of time, to obviate a miscarriage of justice this Court nevertheless reviewed the case and rendered judgment on the merits thereof, in view of the fact that the filing of the appeal out of time was due to the inadvertence of the defense counsel and the further consideration that the briefs of the parties had already been filed. Considering that the same features also obtain in the present case, and in view of the gravity of the offense and the penalty involved, we feel that we should also follow the same judicial path and, in the oft-invoked broader interest of substantial justice, grant to appellants in this case the benefit of judicial review. 2.ID.; ID.; REGLEMENTARY PERIOD FOR PERFECTING APPEAL; PERIOD INTERRUPTED BY FILING OF MOTION FOR RECONSIDERATION OR NEW TRIAL. Section 6, Rule 122 of the Rules of Court very clearly provides: "Sec. 6. When appeal to be taken.An appeal must be taken within fifteen (15) days from promulgation or notice of judgment or order appealed from. This period for perfecting an appeal shall be interrupted from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion shall have been served upon the accused or his attorney." As earlier observed, the records of this case show that the judgment of conviction was promulgated in open court on January 17, 1991. Fourteen days thereafter, or on January 31, 1991, appellants filed a motion for reconsideration and a copy of the order denying the

same was received by appellants' counsel on February 22, 1991. When appellants filed their notice of appeal on March 4, 1991, ten days had elapsed since the receipt of the notice of the order denying the motion for reconsideration. As herein above noted, the appeal must be perfected within fifteen days from promulgation of the judgment, but said period is interrupted from the time a motion for reconsideration or new trial is filed and starts to run again from receipt of the notice denying said motion. Accordingly, from receipt of such denial order, appellant has only the remaining period within which to perfect his appeal. In the case at bar, fourteen days had elapsed before the filing of appellants' motion for reconsideration, hence they had only one day from February 22, 1991 to file a notice of appeal. Consequently, the trial court was correct in rejecting appellants notice of appeal since it was filed beyond the reglementary period. 3.ID.; EVIDENCE; DISPUTABLE PRESUMPTIONS; EVIDENCE WILLFULLY SUPPRESSED WOULD BE ADVERSE IF PRODUCED; CASE AT BAR. The court below did not favorably consider the testimonies of De Chavez, Villagracia, Quiniquito and Desembrana because no other evidence or witnesses were presented to confirm, corroborate or complement their claim that they were at the school gate that night just to meet Desembrana's girlfriend, a certain Liezl Alpahora. As correctly observed by the Solicitor General, "Alpahora was never presented, leading to the conclusion that she either was not around at that time or actually does not exist. Suppression of her testimony without any explanation creates the inference that her testimony would have been adverse to the position of the defense. 4.ID.; ID.; POSITIVE ASSERTIONS OF PROSECUTION WITNESSES PREVAIL OVER ACCUSED'S BARE DENIALS. The defense of appellants consists of mere denials. We do not have to cite authorities to show, for so well-settled is the rule, that between the positive assertions of the prosecution witnesses and the negative avernments of appellants the former indisputably deserve more credence and are entitled to greater evidential weight. 5.ID.; APPEAL; ISSUE NOT RAISED IN TRIAL COURT CANNOT BE RAISED FOR FIRST TIME ON APPEAL; RATIONALE THEREFORE. During the trial of the case, counsel for both appellants never raised the issue of improvement plea of guilt, as appellants Regalario and Pabillar even presented witnesses to prove their minority during the commission of the crime. If appellants were indeed convinced that their plea of guilt was made without their being duly apprised of the consequences thereof, then they should not have wasted fir the termination of the case in the lower court and after raise the issue only after the

promulgation of the adverse judgment of the trial court. Worse, appellants can not raise for the first time in the appellate court such issue which was not raised in the court a quo as would be offensive to the basic rules of fair play, justice and due process. 6.ID.; ID.; TRIAL COURT'S ASSESSMENT OF CREDIBILITY OF WITNESSES' TESTIMONIES ACCORDED GREAT RESPECT; FACTUAL FINDINGS OF TRIAL COURT GENERALLY NOT DISTURBED; REASON THEREFOR; EXCEPTION; CASE AT BAR. It has been our consistent ruling, founded on reason, logic and experience, that the trial court's assessment of the credibility of the witnesses' testimonies is accorded great respect on appeal. WE have repeatedly pointed out and with rational bases, that appellate courts will generally not disturb the factual findings of the trial courts since the latter are in a better position to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, unless it is found that the trial courts have overlooked certain facts of substance and value that, if considered, might affect the result of the case. That doctrine applies in this case as the exceptive circumstance thereto does not obtain here . . . The finding of the court a quo of the presence of conspiracy is a finding of fact that must be respected by the appellate court unless there are compelling reasons to disregard the factual findings of the lower court. Such findings of the trial court on the existence of conspiracy should not be disturbed where such finding is not only logically but also because it is based on evidence appearing in the record. As regards the contention of appellants that the lower court erred in relying heavily on the testimonies of prosecution witnesses Osabal and Padillo, we have recently reiterated the doctrine declared in a long line of cases that the findings of the trial court on the matter of credibility of witnesses will not be disturbed on appeal in the absence of any showing that the trial court overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have effected the result of the case. There is nothing in the records which would cast doubts on the veracity of the testimonies of said prosecution witnesses who actually saw the killing of Menardo Garcia. 7.CRIMINAL LAW; PENAL LAWS LIBERALLY CONSTRUED IN FAVOR OF ACCUSED; COMPASSIONATE LIBERALITY GRANTED BY SUPREME COURT TO MINORS INVOLVED IN SERIOUS CRIMES. It is a basic rule in our criminal justice systems that penal laws should be liberally construed in favor of the offender. Accordingly, the mitigating circumstance of minority should, as a matter of fairness, be appreciated in favor of De Chavez who was clearly a minor when he committed the offense, especially in light of the compassionate liberality this Court has grated to minors involved in serious crimes. Thus, in People vs.

Jose, et al., a prosecution for murder, and in Co vs. Court of Appeals, et al., a prosecution for homicide, considering the gravity of the offenses and in the interest of justice, this Court allowed the presentation of and admitted the birth certificates of the accused to prove the mitigating circumstance of minority although said birth certificates were not presented or offered in the trial court. We can adopt the same equitable consideration with respect to appellant De Chavez, since the fact of his minority is established by an official document prepared by the Department of Social Services and Development in the exercise of its functions and which document is incorporated in the records of this case of which we can take judicial notice ex mero motu. 8.ID.; CONSPIRACY; PROVED BY CIRCUMSTANTIAL EVIDENCE; INFERRED FROM ACTS OF ACCUSED IMMEDIATELY PRIOR TO, DURING AND AFTER ASSAULT ON VICTIM; INDICIUM OF CONSPIRACY. Appellants simultaneously fled from the scene of the crime and tried to contract each other the day after. In fact, appellants Regalario and Pabillar went into hiding together. The stabbing and the death of the victim was announced over a radio broadcast wherein the six appellants were implicated, but despite the fact that they were being hunted by the police authorities, they even went to another province and none of them returned to clear himself of liability. Four of the accused denied their participation but did not present any other evidence to substantiate their denials. It is, however, clear from the aforequoted testimony of Padillo that when the victim ran towards Don Feliciano Street, all of the appellants chased him, battered him with fistblows and continued hitting him even after Regalario had stabbed said victim. Appellants also fled from the scene of the crime all together after the victim lay sprawled on the ground. From the foregoing circumstances, it cannot but be inferred that a conspiratorial undertaking animated the acts of appellants. In a number of cases, the Court has ruled that circumstantial evidence is sufficient to prove conspiracy if it shows a concerted plan, scheme or design to further a common objective. Conspiracy need not be proved by direct evidence but may be inferred from the acts of the accused immediately prior to, during and the right after the assault on the victim which indicate the common intention to commit the crime. To prove conspiracy, the prosecution need not established that all the parties thereto agreed to every detail in the execution of the crime or that they were actually together at all stages of the conspiracy . . . An indicum of conspiracy is when the acts of the accused are aimed at the same object, one performing one part and another performing another part so as to complete it with a view to the attainment of the same object, and their acts though apparently independent were in f act concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. The evidence need not establish the actual agreement which shows

the preconceived plan, motive, interest, or purpose in the commission of the crime; conspiracy is shown by the coordinated acts of the assailants.

9.ID.; MITIGATING CIRCUMSTANCES; MINORITY; ALL DOUBTS RESOLVED IN FAVOR OF ACCUSED. The mitigating circumstance of minority, being favorable to both appellants, all doubts should be resolved in their favor. In the early case of U.S. vs. Bergantino, we held that: "While the evidence upon this point is not entirely satisfactory, yet it is sufficient to raise doubt upon this material question in the case, to the benefit of which the defendant is entitled. The baptismal certificate or other evidence of this character would have been much more satisfactory to the court, and, if obtainable, should have been introduced. Neither the prosecution nor the defendant saw it fit to introduce such evidence. In another case, where the trial court rejected the claim of the accused that he was but 16 years old because it was not corroborated by other proof, this Court overtuned said ruling in this wise: "The evidence shows that the prosecution made no attempt to prove that the defendant was more than 16 years of age. We are of the opinion that the statement of the defendant that he was but 16 years of age, until such fact disproved by other evidence, must be accepted as a fact. There is nothing in the record which shows that the statement of the defendant was untrue." Also, it has been that "(i)n regard to the doubt as to whether the accused is over 18 years of age, and in the absence of proof that on the day he committed the crime he was 18 years old, he must perforce be considered as still under that age . . ." In a more recent case, the mitigating circumstance of minority was appreciated by the Court despite the fact that the only evidence presented by the accused in said case was his own testimony regarding his age while he was on the witness stand narrating what happened two years earlier. 10.ID.; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; TAKEN FOR GRANTED WHERE CONSPIRACY WITH PROOF OF DELIBERATION AND SELECTION OF MANNER OF EXECUTING CRIME ESTABLISHED; CONSPIRACY PRESUPPOSES EXISTENCE OF EVIDENT PREMEDITATION. Finally, the lower court held that evident premeditation qualified the killing to murder. It further considered abuse of superior strength in coming up with the penalty of reclusion perpetua. Note must also be taken of the fact that the court a quo found that there was conspiracy. We have held in a number of cases that under normal conditions, where conspiracy is directly established with proof of the attendant deliberation and the selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. As a

rule, therefore, conspiracy presupposes the existence of evident premeditation. Under the antecedent factual milieu which led to the killing of the victim, we are satisfied that evident premeditation may properly considered here as a qualifying circumstance since the evidence shows when appellants agreed on the commission of the crime, the supervention of an appreciable period of time therefrom, and their persistent adherence to their criminal resolution. 11.ID.; ID.; SUPERIOR STRENGTH; WHEN APPRECIATED; EVIDENT FROM NOTORIOUS DISPARITY BETWEEN RELATIVE STRENGTH OF VICTIM AND ASSAILANTS. The prosecution further alleged that abuse of superior strength aggravated the perpetration of the offense. For superior strength to aggravate a crime, it must be clearly shown that there was deliberate intent to take advantage of it. In the case at bar, it is quite clear that the appellants did take advantage not only of their numerical, but also of their physical, superiority of combined strength. In People vs. Jovellano, et al., we declared that the existence of the aggravating circumstance of superior strength is evident from the notorious disparity between the relatives strength of the victim and four armed assailants and the manner in which the fatal stab wounds were inflicted, showing that the latter cooperated in such a way as to secure advantage of their physical superiority. The killing of Menardo Garcia in the present case was decidedly aggravated by the circumstance of abuse of superior strength. 12.ID.; CIVIL LIABILITY; INDEMNITY FOR DEATH OF VICTIM. the death indemnity awarded by the court a quo should be increased to P50,000.00 in accordance with prevailing case law. DECISION REGALADO, J :
p

This is an appeal from the judgment of the Regional Trial Court of Lucena City, Branch 58, declaring accused-appellants guilty of murder in Criminal Case No. 565 thereof which was initiated by an information alleging
"That on or about the 18th day of September, 1986, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspiring, confederating and mutually helping one another, armed with a deadly weapon, with evident premeditation and the abuse of the superior strength,, did then and there wilfully, unlawfully and feloniously

attack, assault and stab one Menardo Garcia, thereby inflicting upon the latter (a) stab wound caused his death." 1

During their arraignment on October 28, 1986, appellants with the execution of appellant Desembrana, entered a plea of not guilty. 2 However, before the prosecution rested its case, appellants Regalario and Pabillar changed their plea to guilty. 3 Appellant Desembrana was apprehended only on October 7, 1987 by elements of the Lucena City police for another offense, 4 and when separately arraigned for the case at bar on November 3, 1987, he pleaded not guilty. After trial, appellants were found guilty of the offense charged and sentenced as follows:
"WHEREFORE, premises considered, judgment is hereby rendered finding accused ALEX REGALARIO y VILLAGRACIA, CARLOS PABILLAR y VILLON, JOSE QUINIQUITO y MAGNATA, ROLANDO DE CHAVEZ y MONTALBO, AUGURIO VILLAGRACIA, JR. y ISABELO and ALBERTO DESEMBRANA, guilty beyond reasonable doubt of the offense of Murder, as defined and penalized under Article 248 of the Revised Penal Code, and, considering the aggravating circumstance of abuse of superior strength which is not off set (sic) by mitigating circumstance, hereby sentences, said accused person to each suffer the penalty of Reclusion Perpetua, to pay jointly and severally the heirs of Menardo Garcia the amount of Thirty Thousand (P30,000.00) pesos as indemnity, and to pay jointly and severally said heirs the amount of Twenty Three Thousand Three Hundred Eighty-one (P23,381.00) pesos, as funeral expenses and expenses incident to the prosecution of the accused, and to pay the costs." 5

The judgment of conviction was promulgated in open court on January 17, 1991 6 and a copy was received by appellants' former counsel, Atty. Revenito P. Caruruan, on January 18, 1991. 7 On January 31, 1991 within the 15-day reglementary period, appellants filed a motion for reconsideration which was denied by the trial court on February 22, 1991. 8 On March 4, 1991, appellants filed their notice of appeal which was denied due course by the court a quo for having been filed out of time. 9 Nonetheless, in an order dated August 2, 1991, said court directed that the records of this case and the transcripts of the proceedings had therein be forwarded to this Court. 10 The trial court thoroughly summarized its findings on the material facts of the case as follows:

"From the evidence, the Court finds that at about 9:00 o'clock in the evening of September 18, 1986, Menardo Gracia, herein victim, Glenda Osabal and Romano Padillo, all students of Quezon National High School, were walking in the grounds of the Quezon National High School in Lucena City after dismissal from classes on their way home. Outside the gate,, as they neared the Division Office of the School, at the corner of Don Feliciano and General Lucban Streets, the six accused, namely: Alex Regalario, Carlos Pabillar, Rolando de Chavez, Jose Quiniquito, Augurio Villagracia, Jr., and Alberto Desembrana, joined them. Menardo Garcia and Romano Padillo were then walking side by side while Glenda Osabal was walking ahead of them. Accused Carlos Pabillar talked to Menardo Garcia and asked the latter where the 'balisong' was. When Menardo Garcia answered that the 'balisong' was no longer in his possession, Carlos Pabillar boxed him and told his companions, the five other accused, 'tirahin na iyan' (roughly, attack him). At this point, Menardo Garcia ran towards Don Feliciano Street, chased by the six accused. About 50 meters away from the corner of Don Feliciano and General Lucban Streets, in front of the former residence of Ex-Mayor Mario L. Tagarao, the six accused overtook Menardo Garcia and,, acting unison they ganged up on him and boxed him. With their number Menardo Garcia could just try to evade the blows. Then accused Rolando de Chavez was heard to have stated, 'Tarantado si Menardo, niloloko ako'. At this point accused Alex Regalario stabbed Menardo Garcia once with a fast knife locally known as 'beinte nueve' and hit him at the left side of his back. Despite being stabbed, the six accused still acting in unison, continued boxing Menardo Garcia until they saw he was down and could no longer stand up. The six accused the hurriedly left the scene together. Romano Padillo, who was walking side by side with Menardo Garcia when the latter was initially confronted and boxed by accused Carlos Pabillar, followed the six accused chase (sic) Menardo Garcia along Don Feliciano Street and witnessed the attack on Menardo Garcia from 10 meters away. The scene was then well lighted by a mercury lamp on the post. When the six accused left the scene, Romano Padillo also left, fearing for his safety, and proceeded to the house of Menardo Garcia and reported the incident to his grandmother, Guida Rendon Panganiban. He accompanied the grandmother to the Quezon Memorial Hospital where they saw Menardo Garcia unconscious. Glenda Osabal, Menardo Garcia's sweetheart and one of his companions that fateful night, who was then walking ahead of the victim and Romano Padillo, heard the people shouting and there was a commotion. When she looked behind, she saw the six accused chasing Menardo Garcia along Don Feliciano Street and she ran towards the direction they were running but could not catch up with them. The six accused caught up with Menardo Garcia in front of the gate of the gate of the house of

former Mayor Mario L. Tagarao and she met the six accused already leaving hurriedly (sic) the scene and, under the light of the electric post and nearby houses illuminating the area and at a distance of about 5 meters, she recognized them. She then proceeded to where Menardo Garcia fell. She asked him what happened but he did not answer but only pointed to his bleeding side. He was trying to stand up but he fell back. When he lost consciousness, a teacher, one Mrs. Dimayuga, arrived and after verifying he was a student of the Quezon National High School, they carried him to a jeep and brought him to the Quezon Memorial Hospital. At the emergency room, Menardo Garcia regained consciousness and called Glenda Osabal and told her he loved her and when she asked for the identity of his assailants he mentioned one by the name of 'YULAC' and as he said this he was already gasping for breath and then he passed away. 'YULAC' is accused Carlos Pabillar, who was one of the two accused to enter a plea of guilty. The other accused who pleaded guilty was Alex Regalario, the one who stabbed the victim.

"Per Autopsy Report (Exhibit 'A') submitted by Dr. Carmelita Amat Laureano of the Quezon Memorial Hospital, who performed the autopsy on Menardo Garcia, external findings show 'stabbed (sic) wound, left, back, level of 8th rib directed upwards measuring 1.7 x 17 cms.' and internal findings show: 'Massive blood clots in the thoracic cavity. Stabbed (sic) wound at the left back penetrated the inferior lobe, and the inferior border of the superior lobe or the left lung and the base of the heart. Penetration of the heart measures 3.5 x 5.5 cm.' Cause of death was established to be shock due to massive internal hemorrhage due to stabbed (sic) wound at the left back penetrating the left lung and the heart. (Exhibits 'A' and 'B') "P/Sgt. Eduardo Somera (now P/Lt.), then Chief of the Investigation Section of the Lucena City INP, investigated the stabbing incident that led to the death of Menardo Garcia. He summoned eyewitnesses Glenda Osabal and Romano Padillo in the morning of September 19, 1986 and took their statements. Said witnesses gave the names of two of the suspects, Alex Regalario and Carlos Pabillar. As accused Alex Regalario and Carlos Pabillar could not be found in their residences, the mother of Alex Regalario and the sister of Carlos Pabillar were questioned and

information was given that said two accused could be found in Labo, Camarines Norte. That same very afternoon, P/Sgt. Somera and 5 to 6 other policemen proceeded to Labo,, Camarines Norte where the two accused were arrested. When to the Lucena City police headquarters the following morning, they admitted having committed the crime and named their companions in the commission of the crime as Jose Quiniquito, Alberto Desembrana, Ronaldo de Chavez and Augurio Villagracia, Jr. That very same morning, elements of the Lucena City INP arrested Jose Quiniquito at his given address at Short Cut, General Malvar Street, Lucena City. ON September 27, 1986, accompanied by the father of Augurio Villagracia, Jr., elements of the Lucena City INP led by P/Capt. Rolando de Chavez at Sta. Elena, Camarines Norte. When arrested, the two accused readily admitted their participation in the crime. "Sometime (o)n October 7, 1987, accused Alberto Desembrana was arrested by the police authorities, together with other persons, for some other offense in Barangay Mayao, Lucena City. Verification of police records showed that Alberto Desembrana is the same person accused in this case and this Court was accordingly informed of his arrest." 11

The defense version in effect confirms the foregoing factual findings but presents a variation on the details of the actual encounter, in this manner:
"On September 18, 1986, at about 9:00 o'clock in the evening, Menardo Garcia, the private offended party, was allegedly walking on his way home after his dismissal from his class at Quezon National High School, Lucena City with his girlfriend, Glenda Osabal, and Romano Padillo, the victim's best friend and neighbor; when they were allegedly at the place near the Office of the Division of the City School, the accusedappellants, namely: Alex Regalario, Carlos Pabillar, Augurio Villagracia, Jr., and Alberto Desembrana, allegedly joined them; Rolando de Chavez, one of accused, allegedly would like to get the 'balisong' which he lent to the said victim in June 1986; allegedly told Alex Regalario of his intention to get the said 'balisong' from Menardo Garcia, before the fatal incident took place; (a)t that time; Alex Regalario was with Carlos Pabillar; (c)oincidentally, the said three accused, allegedly met the other three accused; Augurio Villagracia, Jr., Jose Quiniquito and Alberto Desembrana who at the time were also at the gate of the Quezon National High School, to meet the girl friend of Alberto Desembrana; Alex Regalario upon seeing Menardo Garcia, asked for the 'balisong' of Rolando de Chavez, but Menardo Garcia answered back and uttered 'ba't ikaw ay pakialam, hindi naman sa iyo.' (why are you interested, it is not yours?); Carlos Pabillar, irked by the remark of Menardo Garcia, boxed

him (Menardo Garcia) on the chest; (t)hen Menardo Garcia stepped back; Alex Regalario and Menardo Garcia grappled with each other; (w)hen they were separated Menardo Garcia ha(d) a stab wound on the left side above the waist of his body; (t)hen Menardo Garcia ran toward the direction of the house of the former Ex-Mayor (sic) Tagarao. (TSN June 7, 1989, pages 2-4, 5, 6, 7 and 8)" 12

Appellants Regalario and Pabillar, who, as earlier stated, had changed their pleas from not guilty to guilty, invoked the circumstance that they were minors when the stabbing incident took place. Both of them presented evidence in order to avail of the mitigating circumstance of minority. The court below, however, ruled that the evidence adduced by said appellants failed to establish their claim that they were minors when the crime was committed. Likewise, said court gave no credence to the testimonies and evidence presented by the defense and, as heretofore stated, rendered a verdict of guilty. In their brief, appellants contend in substance that the lower court erred:
1.In rejecting the notice of appeal filed by the accused on the ground "that was filed beyond the reglementary period;" 2.In accepting the plea of guilty of appellants Regalario and Pabillar when they were re-arraigned but were not apprised clearly and fully of the nature of the offense charged against them; 3.In not considering the testimonies of Ronaldo de Chavez, Augurio Villagracia, Jr., Jose Quiniquito and Alberto Desembrana; 4.In relying on the testimonies of the two witnesses for the prosecution, instead of weighing the evidence adduced during the trial in favor of appellants that there was no conspiracy and the act of boxing and stabbing were independently committed by appellants Regalario and Pabillar; 5.In not considering the age of minority of appellants Regalario and Pabillar at the time of the commission of the crime; and 6.In not considering the financial standing of appellant's parents in the imposition of the award of indemnity, as well as the funeral and other expenses incidental to the prosecution of the case.

Appellants inceptively claim that the computation of the period of fifteen days wherein to file the notice of appeal "should be counted from February 23, 1991, not from date of the decision of said case." 13 The flaw in this arguments is immediately apparent. Section 6, Rule 122 of the Rules of Court very clearly provides:
"Sec. 6.When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation or notice of judgment or order appealed from. This period for perfecting an appeal shall be interrupted from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion shall have been served upon the accused or his attorney."

As earlier observed, the records of this case show that the judgment of conviction was promulgated in open court on January 17, 1991. Fourteen days thereafter, or on January 31, 1991, appellants filed a motion for reconsideration and a copy of the order denying the same was received by appellants' counsel on February 22, 1991. When appellants filed their notice of appeal on March 4, 1991, ten days had elapsed since the receipt of the notice of the order denying the motion for reconsideration. As herein above noted, the appeal must be perfected within fifteen days from promulgation of the judgment, but said period is interrupted from the time a motion for reconsideration or new trial is filed and starts to run again from receipt of the notice denying said motion. Accordingly, from receipt of such denial order, appellant has only the remaining period within which to perfect his appeal. In the case at bar, fourteen days had elapsed before the filing of appellants' motion for reconsideration, hence they had only one day from February 22, 1991 to file a notice of appeal. Consequently, the trial court was correct in rejecting appellants notice of appeal since it was filed beyond the reglementary period. Ordinarily, therefore, the appeal herein could have been dismissed outright for being time-barred. The records, however, do not show that either the public or private prosecutor moved for the dismissal of said appeal or objected to the aforesaid order of the trial court directing the elevation of the records of the case to this Court, obviously for appellate review. It was only after appellants had filed their brief that appellee, in its brief, raised the issue of the belated appeal and, inferentially, the lack of appellate jurisdiction of this Court in this case. However, the principle of estoppel by laches to bar attacks on jurisdiction has been adopted and repeatedly applied by this Court, notably in Tijam, et al. vs.

Sibonghanoy, et al., 14 and in several cases which followed thereafter, including

criminal cases.
15

Thus, People vs. Tamani, 16 although the appeal of the accused was demonstrably filed out of time, to obviate a miscarriage of justice this Court nevertheless reviewed the case and rendered judgment on the merits thereof, in view of the fact that the filing of the appeal out of time was due to the inadvertence of the defense counsel and the further consideration that the briefs of the parties had already been filed. Considering that the same features also obtain in the present case, and in view of the gravity of the offense and the penalty involved, we feel that we should also follow the same judicial path and, in the oft-invoked broader interest of substantial justice, grant to appellants in this case the benefit of judicial review. The trial court did not err in accepting the plea of guilty of appellants Regalario and Pabillar when they were re-arraigned. As reflected in its order dated February 23, 1988, 17 both appellants were assisted by their counsel and it was only after a series of questions to both of them that said court, after being convinced that the plea of guilty was made intelligently and voluntarily, accepted the change of plea, but nevertheless required the prosecution to p[resent its evidence. As correctly argued by the Solicitor General, appellants never questioned the correctness of that order and of the declarations therein, 18 until they filed their brief.

Also, during the trial of the case, counsel for both appellants never raised the issue of improvement plea of guilt, as appellants Regalario and Pabillar even presented witnesses to prove their minority during the commission of the crime. If appellants were indeed convinced that their plea of guilt was made without their being duly apprised of the consequences thereof, then they should not have wasted fir the termination of the case in the lower court and after raise the issue only after the promulgation of the adverse judgment of the trial court. Worse, appellants can not raise for the first time in the appellate court such issue which was not raised in the court a quo as would be offensive to the basic rules of fair play, justice and due process. 19 Appellants also assail the judgment of the trial court for not considering the testimonies offered by the defense. It would be noted that in coming up with the verdict of guilty, the lower court relied on the testimonies of the two prosecution witnesses, Glenda Osabal and Romano Padillo, who positively identified the six

appellants during the police investigation and during the trial. Said court also ruled that from the facts of the case, it had been established that there was conspiracy among appellants as their individual actions indubitably showed a common design and concerted action. We have carefully reviewed and evaluated the evidence in this case and we agree with the aforequoted findings of the lower court and its conclusion that the culpability of appellants and the existence of a conspiracy among them was sufficiency established by the prosecution. Prosecution witness Romano Padillo, testifying in a clear, forth right and consistent manner, refuted the defense version of the fatal encounter by narrating what actually transpired that fateful evening of September 18, 1986, which testimony we feel should be reproduced here:
"QWhen you said that on the evening of September 18, 1986, you were walking in company with Menardo Garcia and Glenda Osabal, these 6 persons you enumerated joined you, what happened when they joined you? AI saw Carlos Pabillar talked (sic) to Menardo Garcia, sir. QDid you hear what they talked about? AYes, sir. QWhat did they talked about? ACarlos Pabillar asked Menardo Garcia, where the balisong was. QWhat did Menardo Garcia say, if any? AMenardo Garcia answered that the balisong was no longer in his possession, sir. QWhat happened next? ACarlos Pabillar boxed Menardo Garcia, sir. QWhen Carlos Pabillar boxed Menardo Garcia, did Carlos Pabillar say anything? AYes, sir. QWhat did Carlos Pabillar say?

AAttack him. ('tirahin na iyan') QDo you know to whom Carlos Pabillar addressed this remark? AYes, sir. QWho was to be attacked? AMenardo Garcia, sir. QAnd who were to attack Menardo Garcia? AHis companions, sir. QWhat happened after that? AMenardo Garcia ran away, sir. QTowards what direction did Menardo Garcia go or run ? ATowards the direction in going (sic) to Don Feliciano Street, sir QWhen Menardo ran at (sic) Don Feliciano Street, what did the six young persons do? AThey chased him, sir. QHow about you, what did you do? AI secretly follow(e)d them, sir. xxx xxx xxx QWhat happened after he reached a distance of 50 meters from the corner of General Lucban and Don Feliciano Street? AThey were able to take over (sic) Menardo Garcia, sir. xxx xxx xxx QWhat happened when the 6 persons you mentioned over-took Menardo Garcia at that place? AI saw he was being boxed, sir.

QBy whom? ABy the six persons,, sir. QWhat did Menardo Garcia do while he was being boxed by the 6 persons? Ahe evading the blows, sir. QWhat happened next? ANarinig ko sinabi ni Rolando de Chavez, 'tirahin si Menardo, niloloko ako' (I heard Rolando de Chavez stated [sic] that he was being fooled by Menardo Garcia). QAfter uttering this remark you quoted as made by Rolando de Chavez, what transpired? AI saw when Alex Regalario stabbed Menardo Garcia, sir. xxx xxx xxx QWhen Menardo Garcia was hit, what else happened? AHe was boxed again by the companions of Alex Regalario, sir. QHow long did the companions of Alex Regalario attacked (sic) Menardo Garcia after he was stabbed by Alex Regalario? AWhen they saw that Menardo Garcia could no longer stand up, the 6 persons left." 20

We have completely scrutinized the records of this case and we find no reason to doubt the veracity of Padillo's narration of what he witnessed. He was intensively cross-examined by the defense counsel, but he never deviated from he said in his direct examination. Neither has there been a showing of any dubious, unfair or ulterior motive whatsoever on the part of Padillo to testify as he did or to impute such a serious crime to appellants. It has been our consistent ruling, founded on reason, logic and experience, that the trial court's assessment of the credibility of the witnesses' testimonies is accorded great respect on appeal. 21 WE have repeatedly pointed out and with rational bases, that appellate courts will generally not disturb the factual findings of the trial courts since the latter are in a better position to weigh conflicting

testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, unless it is found that the trial courts have overlooked certain facts of substance and value that, if considered, might affect the result of the case. 22 That doctrine applies in this case as the exceptive circumstance thereto does not obtain here. Appellants insist that there was no conspiracy because the acts of boxing and stabbing the victim were independently committed by the appellants Regalario and Pabillar. There is no merit in such pretension. The court below did not favorably consider the testimonies of De Chavez, Villagracia, Quiniquito and Desembrana because no other evidence or witnesses were presented to confirm, corroborate or complement their claim that they were at the school gate that night just to meet Desembrana's girlfriend, a certain Liezl Alpahora. As correctly observed by the Solicitor General, "Alpahora was never presented, leading to the conclusion that she either was not around at that time or actually does not exist. Suppression of her testimony without any explanation creates the inference that her testimony would have been adverse to the position of the defense. 23 It also appears from the records that appellants simultaneously fled from the scene of the crime and tried to contract each other the day after. In fact, appellants Regalario and Pabillar went into hiding together. 24 The stabbing and the death of the victim was announced over a radio broadcast wherein the six appellants were implicated, but despite the fact that they were being hunted by the police authorities, they even went to another province and none of them returned to clear himself of liability. 25 Four of the accused denied their participation but did not present any other evidence to substantiate their denials. It is, however, clear from the aforequoted testimony of Padillo that when the victim ran towards Don Feliciano Street, all of the appellants chased him, battered him with fistblows and continued hitting him even after Regalario had stabbed said victim. Appellants also fled from the scene of the crime all together after the victim lay sprawled on the ground. From the foregoing circumstances, it cannot but be inferred that a conspiratorial undertaking animated the acts of appellants. In a number of cases, the Court has ruled that circumstantial evidence is sufficient to prove conspiracy if it shows a concerted plan, scheme or design to further a common objective. 26 Conspiracy need not be proved by direct evidence but may be inferred from the acts of the accused immediately prior to, during and the right after the assault on the victim which indicate the common intention to commit the crime. 27 To prove conspiracy, the prosecution need not established that all the parties thereto

agreed to every detail in the execution of the crime or that they were actually together at all stages of the conspiracy. 28 In its decision, the lower court made the express finding that "(a")ll the six accused admitted their presence at the scene of the crime and their being together immediately before the criminal assault on Menardo Garcia. While they gave various explanations as to their presence, the fact remain that they were there and they were together. Their duly established common design of assaulting Menardo Garcia and their action of boxing said Menardo Garcia militate against their defense of denial." 29 An indicum of conspiracy is when the acts of the accused are aimed at the same object, one performing one part and another performing another part so as to complete it with a view to the attainment of the same object, and their acts though apparently independent were in f act concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. 30 The evidence need not establish the actual agreement which shows the preconceived plan, motive, interest, or purpose in the commission of the crime; conspiracy is shown by the coordinated acts of the assailants. 31 The finding of the court a quo of the presence of conspiracy is a finding of fact that must be respected by the appellate court unless there are compelling reasons to disregard the factual findings of the lower court. Such findings of the trial court on the existence of conspiracy should not be disturbed where such finding is not only logically but also because it is based on evidence appearing in the record. 32 As regards the contention of appellants that the lower court erred in relying heavily on the testimonies of prosecution witnesses Osabal and Padillo, we have recently reiterated the doctrine declared in a long line of cases that the findings of the trial court on the matter of credibility of witnesses will not be disturbed on appeal in the absence of any showing that the trial court overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have effected the result of the case. 33 There is nothing in the records which would cast doubts on the veracity of the testimonies of said prosecution witnesses who actually saw the killing of Menardo Garcia.

The defense of appellants consists of mere denials. We do not have to cite authorities to show, for so well-settled is the rule, that between the positive

assertions of the prosecution witnesses and the negative avernments of appellants the former indisputably deserve more credence and are entitled to greater evidential weight. Appellants Regalario and Pabillar lay much stress on their claim of minority when the crime was committed. The lower court ruled that the evidence adduced by them does not meet the requirement of convincing proof to establish minority in mitigation of, their liability. The Solicitor General, likewise, asserts that the minority of Regalario and Pabillar was not proven since the birth certificate of Regalario, 34 showing that he was born on July 16, 1970, was based on a late registration of his birth, made only after the stabbing incident, which thereby makes the same highly unreliable. Pabillar, on the other hand, produced his baptismal certificate 35 showing his date of birth on October 14, 1970, but the prosecution contends that said baptismal certificate is insufficient to prove minority because it only evidences the fact of baptism, but not of birth. We do not agree with the conclusion reached by the trial court. The mitigating circumstance of minority, being favorable to both appellants, all doubts should be resolved in their favor. In the early case of U.S. vs. Bergantino, 36 we held that:
"While the evidence upon this point is not entirely satisfactory, yet it is sufficient to raise doubt upon this material question in the case, to the benefit of which the defendant is entitled. The baptismal certificate or other evidence of this character would have been much more satisfactory to the court, and, if obtainable, should have been introduced. Neither the prosecution nor the defendant saw it fit to introduce such evidence.

In another case, 37 where the trial court rejected the claim of the accused that he was but 16 years old because it was not corroborated by other proof, this Court overtuned said ruling in this wise:
"The evidence shows that the prosecution made no attempt to prove that the defendant was more than 16 years of age. We are of the opinion that the statement of the defendant that he was but 16 years of age, until such fact disproved by other evidence, must be accepted as a fact. There is nothing in the record which shows that the statement of the defendant was untrue."

Also, it has been that "(i)n regard to the doubt as to whether the accused is over 18 years of age, and in the absence of proof that on the day he committed the

crime he was 18 years old, he must perforce be considered as still under that age . . ." 3 8 In a more recent case, 39 the mitigating circumstance of minority was appreciated by the Court despite the fact that the only evidence presented by the accused in said case was his own testimony regarding his age while he was on the witness stand narrating what happened two years earlier. It appears, therefore, that on the date of the commission of the offense charged, appellant Regalario was 16 years, 2 months and 2 days old, while appellant Pabillar was 15 years, 11 months and 4 days old. Appellant De Chavez failed to invoked minority as a mitigating circumstance during the trial of the case, as well as in this appeal. However, after an exhaustive examination of the records of the case, it appears that De Chavez was born on June 24, 1969. 40 Therefore, he was 17 years, 2 months and 24 days old when he committed the crime. It is a basic rule in our criminal justice systems that penal laws should be liberally construed in favor of the offender. Accordingly, the mitigating circumstance of minority should, as a matter of fairness, be appreciated in favor of De Chavez who was clearly a minor when he committed the offense, especially in light of the compassionate liberality this Court has grated to minors involved in serious crimes. Thus, in People vs. Jose, et al., 41 a prosecution for murder, and in Co vs. Court of Appeals, et al., 42 a prosecution for homicide, considering the gravity of the offenses and in the interest of justice, this Court allowed the presentation of and admitted the birth certificates of the accused to prove the mitigating circumstance of minority although said birth certificates were not presented or offered in the trial court. We can adopt the same equitable consideration with respect to appellant De Chavez, since the fact of his minority is established by an official document prepared by the Department of Social Services and Development in the exercise of its functions and which document is incorporated in the records of this case of which we can take judicial notice ex mero motu. Finally, the lower court held that evident premeditation qualified the killing to murder. It further considered abuse of superior strength in coming up with the penalty of reclusion perpetua. Note must also be taken of the fact that the court a quo found that there was conspiracy. We have held in a number of cases that under normal conditions, where conspiracy is directly established with proof of the attendant deliberation and the selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. 43 As a rule, therefore, conspiracy presupposes the existence of evident premeditation. Under the antecedent factual milieu which led to the killing of the

victim, we are satisfied that evident premeditation may properly considered here as a qualifying circumstance since the evidence shows when appellants agreed on the commission of the crime, the supervention of an appreciable period of time therefrom, and their persistent adherence to their criminal resolution. The prosecution further alleged that abuse of superior strength aggravated the perpetration of the offense. For superior strength to aggravate a crime, it must be clearly shown that there was deliberate intent to take advantage of it. 44 In the case at bar, it is quite clear that the appellants did take advantage not only of their numerical, but also of their physical, superiority of combined strength. In People vs. Jovellano, et al., 45 we declared that the existence of the aggravating circumstance of superior strength is evident from the notorious disparity between the relatives strength of the victim and four armed assailants and the manner in which the fatal stab wounds were inflicted, showing that the latter cooperated in such a way as to secure advantage of their physical superiority. The killing of Menardo Garcia in the present case was decidedly aggravated by the circumstance of abuse of superior strength. In rendering its judgment of conviction, the trial court also ordered appellants to pay, jointly and severally, the heirs of Menardo Garcia the amount of P23,381.00 as funeral expenses and expenses incident to the prosecution of the case. We accept the ruling of the lower court on this score since such damages were duly proven by the prosecution. However, the death indemnity awarded by the court a quo should be increased to P50,000.00 in accordance with prevailing case law. The penalties imposed by the trial court on accused-appellants Jose Quiniquito y Magnata, Augurio Villagracia, Jr. y Isabelo and Alberto Desembrana are correct since the crime of murder was aggravated by abuse of superior strength, hence their penalties should be imposed in the maximum period, or reclusion perpetua, in view of the proscription on the imposition of the death penalty. Accused-appellants Regalario, Pabillar and De Chavez are entitled to the privileged mitigating circumstance of minority under paragraph 2, Article 68 of the Revised Penal Code and the penalty next lower than that prescribed by law shall be imposed, in the proper period. As reduced by one degree, the maximum imposable penalty for these three appellants shall be within the range of prision mayor in its maximum period to reclusion temporal in its medium period.

WHEREFORE, accused-appellants Alex Regalario y Villagracia, Carlos Pabillar y Villon and Rolando de Chavez y Montalbo are hereby each sentenced to an intermediate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. The death indemnity to be paid by all the accusedappellants to the heirs of Menardo Garcia is increased to P50,000.00. As thus MODIFIED, the judgment of the trial court is hereby AFFIRMED in all other respects. SO ORDERED.

SECOND DIVISION
[G.R. Nos. 111168-69. June 17, 1998.] JOAQUIN E. DAVID, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,respondents.

Prospero A. Crescini for petitioner. The Solicitor General for respondents.

SYNOPSIS Petitioner was charged, in two separate informations, with homicide and frustrated homicide for the fatal shooting of Noel Nora and the serious wounding of the latter's brother, Narciso, Jr., in Malabon, Metro Manila. The trial court found the petitioner guilty of the crimes charged. The Court of Appeals affirmed the decision but modified the sentence of petitioner after crediting him with the mitigating circumstance of voluntary surrender, and further modified the sentence after finding that the evidence did not show that he had a police record or that he was incorrigible. Still not satisfied, petitioner interposed this appeal. He contends that the elements of self-defense have been sufficiently established, and that if there was no complete self-defense, at least there is an incomplete self-defense. The Supreme Court affirmed the judgment of the Court of Appeals with modification as to the sentence imposed. The Court held that in shooting the victims, petitioner was not acting to protect himself but retaliating for the insult

and physical violence he had received at the hands of the victims and their group. An act of aggression, when its author does not persist in his purpose, or when he discontinues his attitude to the extent that the object of his attack is no longer in peril, is not unlawful aggression warranting self-defense. The fact that there was no longer any unlawful aggression when petitioner shot the victims rules out the possibility of self-defense, whether complete or incomplete. Besides voluntary surrender, the ordinary mitigating circumstance of having acted in the immediate vindication of a grave offense may be appreciated. But the mitigating circumstances of passion or obfuscation and sufficient provocation cannot be considered apart from the circumstance of immediate vindication of a grave offense because these circumstances, all having arose from one and the same incident, which was the attack on the petitioner by victims and their companions, they should be considered as one mitigating circumstance. The fact that petitioner has not shown himself to be incorrigible should not be used as basis for reducing the penalty, as it is a ground for suspension of judgment of youthful offenders. The privileged mitigating circumstance of minority is likewise appreciated as petitioner was only 17 years old when the crime was committed. SYLLABUS 1.REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL COURT ENTITLED TO GREAT RESPECT. Findings of the trial court on the credibility of witnesses are entitled to great respect because it has the opportunity to observe the deportment of the witnesses and their manner of testifying. The decision of the trial court in this case is notable for its painstaking analysis of the evidence of the parties. Its conclusion that the prosecution witnesses were more credible than the defense witnesses should be upheld in the absence of proof that it has overlooked certain important matters as to the credibility of the witnesses.
aAHDIc

2.CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; TO BE APPRECIATED, THE AGGRESSION MUST STILL EXIST WHEN THE AGGRESSOR IS INJURED OR DISABLED BY THE PERSON MAKING THE DEFENSE. In shooting the victims, petitioner was not acting to protect himself but retaliating for the insult and physical violence he had received at the hands of the victims and their group. In retaliation, the aggression that was begun by the injured party has already ceased when the accused attacks him. In self-defense, the aggression still exists when the aggressor is injured or disabled by the person making the defense. In this case, defense witness Inocencio Antonio said that the victims and their companions were already running away because they saw

petitioner armed with a gun. The unlawful aggression had thus already ceased when the latter fired at them. An act of aggression, when its author does not persist in his purpose, or when he discontinues his attitude to the extent that the object of his attack is no longer in peril, is not unlawful aggression warranting self-defense. 3.ID.; MITIGATING CIRCUMSTANCES; IMMEDIATE VINDICATION OF A GRAVE OFFENSE; WHEN APPRECIATED. The mitigating circumstance of having acted in the immediate vindication of a grave offense may be appreciated. As the trial court and the Court of Appeals found, the petitioner had been beaten up by the Noras and their companions. Although the unlawful aggression had ceased when petitioner shot the Nora brothers, it was nonetheless a grave offense for the vindication of which petitioner may be given the benefit of a mitigating circumstance. 4.ID.; ID.; MINORITY; WHERE PROSECUTION FAILS TO DISPROVE CLAIM THEREOF BY CONTRARY EVIDENCE, SUCH ALLEGATION CAN BE ACCEPTED AS A FACT. It is thus clear that on March 28, 1981, when the crime was committed, he was only 17 years old. We have held in many cases that if the accused alleges minority and the prosecution does not disprove his claim by contrary evidence, such allegation can be accepted as a fact. Thus, in United States v. Bergantino, the accused testified that she was below 15 when the crime was committed. This was corroborated by her mother and her husband. No other evidence, such as the baptismal certificate, was presented to support this claim. The prosecution did not offer any contradictory evidence. This Court held: While the evidence upon this point is not entirely satisfactory, yet it is sufficient to raise a reasonable doubt upon this material question in the case, to the benefit of which the defendant is entitled. The baptismal certificate or other evidence of this character would have been much more satisfactory to the court, and, if obtainable, should have been introduced. Neither the prosecution nor the defendant saw fit to introduce such evidence. 5.ID.; ID.; ID.; ANY DOUBT IN RESPECT OF THE AGE OF THE ACCUSED IS RESOLVED IN HIS FAVOR. Any doubt in respect of the age of the accused is resolved in his favor. In United States v. Barbicho, it was held: In regard to the doubt as to whether the accused is over or under 18 years of age, and in the absence of proof that on the day he committed the crime he was 18 years old, he must perforce be considered as still under that age, and therefore, the mitigating circumstance mentioned in paragraph No. 2 of Article 9 of the code should be applied in his favor . . . InUnited States v. Agadas, this Court similarly held: While it is true that in the instant case Rosario testified that he was 17

years of age, yet the trial court reached the conclusion, judging from the personal appearance of Rosario, that "he is a youth 18 or 19 years old." Applying the rule enunciated in the case just cited, we must conclude that there exists a reasonable doubt, at least, with reference to the question whether Rosario was, in fact, 18 years of age at the time the robbery was committed. This doubt must be resolved in favor of the defendant. . .
aEIcHA

DECISION MENDOZA, J :
p

This is a petition for review on certiorari of the decision of the Court of Appeals. Petitioner Joaquin E. David was charged, in two separate informations, with homicide and frustrated homicide for the fatal shooting of Noel Nora and the serious wounding of the latter's brother, Narciso Nora, Jr., on March 28, 1981, in Malabon, Metro Manila.
Cdpr

After trial, petitioner was found guilty as charged. The dispositive portion of the decision, dated August 17, 1988, of the Regional Trial Court of Kalookan City reads: 1
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of Homicide under Articles 249 and 64(1) of the Revised Penal Code, and for the crime of Frustrated Homicide under Articles 249 and 50, without any mitigating or aggravating circumstance in both cases, and hereby sentences the accused, For the crime of Homicide, to suffer an indeterminate sentence of EIGHT (8) YEARS and ONE (1) DAY of prision mayor medium, as minimum, to SIXTEEN (16) YEARS of reclusion temporal medium, as maximum; For the crime of Frustrated Homicide, to suffer an indeterminate sentence of TWO (2) YEARS and ONE (1) DAY of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum. And ordering the accused: (1)To indemnify the heirs of Noel Nora the sum of P30,000.00 for the death of Noel Nora

P37,000.00 for actual damages P30,000.00 for moral damages P20,000.00 for and as attorney's fees or a total sum of P117,000.00; (2)Further, to indemnify Narciso Nora the sum of P8,728.00 for actual damages P20,000.00 for moral damages or a total sum of P28,000.00 SO ORDERED.

On appeal, the Court of Appeals, in its decision 2 rendered on October 29, 1992, modified the sentence after crediting petitioner with the mitigating circumstance of voluntary surrender. 3
The penalty prescribed by law for homicide is reclusion temporal. Since there is one (1) mitigating and no aggravating circumstance, the penalty should be imposed in the [sic] its minimum period. Applying the Indeterminate Sentence Law, the range of penalty next lower to that prescribed by the Revised Penal Code for the offense is prision mayor. For the crime of Homicide, the penalty is therefore modified to a minimum of 10 years and 1 day of prision mayor to a maximum of 14 years and 8 months of reclusion temporal. As to the crime of Frustrated Homicide, the same is likewise modified to a minimum of 4 years and 1 day ofprision correccional to a maximum of 6 years and 1 day of prision mayor. WHEREFORE, except for the modifications above indicated, the rest of the appealed judgment is hereby AFFIRMED in all respects. SO ORDERED.

On July 29, 1992, the appellate court further modified the sentence on petitioner on the ground that the evidence did not show that he had a police record or that he was incorrigible. The dispositive portion of the court's resolution 4 stated:

WHEREFORE, except for the penalties imposed which is hereby modified to read as follows: 1) for the crime of Homicide with one mitigating circumstance the penalty ranging from six (6) years and one (1) day of prision mayor as minimum and twelve (12) years and one (1) day of reclusion temporal as maximum; and 2) for the crime of frustrated homicide with one mitigating circumstance six (6) months and one (1) day of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum, the motion for reconsideration is DENIED for lack of merit. SO ORDERED.

Still not satisfied, petitioner brought this appeal from the decision, as modified, of the Court of Appeals. Petitioner contends that 5
I. THE PUBLIC RESPONDENT COURT OF APPEALS GRIEVOUSLY ERRED IN NOT HOLDING THAT THE ELEMENTS OF SELF-DEFENSE HAVE BEEN ESTABLISHED BY PETITIONER BY EVIDENCE WHICH IS CLEAR, SUFFICIENT, SATISFACTORY, CREDIBLE, CONVINCING, COMPETENT AND PERSUASIVE. II. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FAILING TO CONSIDER THE EXCULPATORY FACTS IN FAVOR OF THE PETITIONER WHICH IF DULY CONSIDERED WOULD HAVE COMPLETELY EXONERATED PETITIONER FROM THE CRIMES CHARGED. III. THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT IF THERE WAS NO COMPLETE SELF-DEFENSE, THEN AT THE VERY LEAST THERE IS IN THIS CASE AN INCOMPLETE SELF-DEFENSE. STILL, IF PETITIONER'S DEFENSE IS DISBELIEVED, OTHER MITIGATING CIRCUMSTANCES SHOULD BE APPRECIATED IN PETITIONER'S FAVOR. IV.

THE DECISION OF THE PUBLIC RESPONDENT COURT OF APPEALS IS NOT IN ACCORDANCE WITH THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

The prosecution evidence in this case is as follows: On March 28, 1981, at about 10:00 p.m., while the Nora brothers Arturo, Arnel, Noel and Narciso were walking along Flerida Street in Malabon, Metro Manila on their way home to Capitan Tiago Street, they saw petitioner near the compound of his house. Noel Nora, the deceased, confronted him about derogatory remarks allegedly made by the latter. Petitioner ran to his house to get a gun. When the Nora brothers reached the intersection of Flerida and Capitan Tiago Streets, he shouted at them "Putang ina ninyo (You sons of a bitch)" and other epithets, and then fired four times at them. One shot hit Noel, killing him. Another shot hit Narciso Nora on the ankle. Another nearly hit the zipper of Arturo Nora. Petitioner claimed self-defense. He alleged that on the night in question, he went to the corner of Flerida and Capitan Tiago Streets because Noel Nora had earlier challenged him to a fight. However, upon reaching the place, he found that Noel had brought along his three (3) brothers and other companions who ganged up on him. Petitioner claimed that Noel Nora stabbed him with a knife, hitting him on the left arm and that the group could have stabbed him several times more had he not been able to dodge their blows. He said when he tried to run away, the victim's brothers held both his arms while Narciso hit him with a piece of wood on the thighs and buttocks and the others boxed him on the abdomen. Petitioner said he was able to run away, but the Nora brothers chased him, shouting, "We will enter your house and we will kill you." Petitioner therefore took the .38 caliber gun of his father (who was a policeman) from the cabinet on the ground floor of their house. Petitioner went out of the house. The Nora brothers, who were just five (5) steps away from the door of their house, ran after seeing that petitioner had a gun. But after running to the other side of the street, they hurled stones at petitioner and shouted derogatory words at him. Petitioner claimed he afterward went inside the compound, but he slipped, whereupon the Nora brothers advanced toward him. He warned them not to get near, but they kept coming closer, for which reason petitioner fired at them. Petitioner was then from four (4) to five (5) meters away from the group. Petitioner afterward went inside their house and gave the gun to his mother. In rejecting petitioner's claim of self-defense, the Court of Appeals said:
6

The bone of contention in this case centers on the issue of self-defense. The trial court, in denying the same, ruled that since there was no unlawful aggression immediately preceeding [sic] the shooting of the victims, the claim of self-defense to justify the acts of the accused is unavailing. For its part, the appellant contends that the lower court erred in its appreciation of the evidence and testimony of witnesses relative to the locus of the shooting incident. The appellant claims that notwithstanding the direct contradiction made by defense witnesses regarding the locus of the crime, the same does not in any way diminish the credibility of appellant's story and his claim of self-defense. The contention is devoid of merit. In this case, the issue with respect to the locus of the crime is determinative not only of the place of its commission. More importantly, it is decisive in determining the existence of unlawful aggression as justification for appellant's claim of selfdefense. The facts of the case and the evidence presented during the trial reveal that the shooting of the victims happened outside the residential compound of the accused. No matter how the defense try to belabour the issue by claiming in its reply brief that there were in fact two (2) compounds the residence of the accused being a small compound within the bigger compound of his relatives' residence and that the victims were shot inside this big section albeit outside the residential compound of the accused, the evident fact remains that the victims were shot not in the vicinity of appellant's residence as claimed by the defense but in the streets, after the accused has taken his father's gun from their house. Noteworthy is the testimony of defendant's mother to the effect that: Court: The Court would like to ask. Was your son outside or inside the gate of your compound when you went to verify the shots? Witness: He was about to enter the gate of our compound. Court: When you say he was about to enter the gate of the compound, he was coming from the outside of the compound of course?

Witness: He was outside the gate of our compound. (TSN, 11 November 1987 p. 13) The accused who claims self-defense must prove its elements clearly and convincingly. The rationale is because such proceeds from the admission of the accused that he killed or wounded another, which is a felony, for which he should be criminally liable unless he established to the satisfaction of the Court the fact of legitimate defense (Castanares v. Court of Appeals, 92 SCRA 567) As correctly appreciated by the trial court, the evidence established that there was in fact no immediate unlawful aggression to warrant the acts of the accused in shooting the victims. While the accused was indeed mauled and beaten up by the deceased and his companions, the aggression stopped when the accused was able to free himself from the assault of the group and thereafter sought refuge in their house. An act of aggression, when its author does not persist in his purpose or when he discontinues his attitude to the extent that the object of his attack is no longer in peril is not unlawful aggression warranting self-defense (People v. Macariola, 120 SCRA 92) Having sought refuge in their house after the aggression had ceased, the accused should have desisted from stepping out of their abode with his father's gun. In going after the deceased and his companions after the unlawful aggression ceased to exist, the act of the accused became retaliatory in nature, done for the purpose of avenging whatever pain and injuries he had suffered from the hands of the victims. Consequently, the same cannot be considered as constituting selfdefense for the act to repel the unlawful aggression must immediately follow such unlawful aggression (US v. Ferrer, 1 Phil. 56).

First. Petitioner contends that the unlawful aggression of the Noras and their

group did not cease and that the finding of the Court of Appeals that it did is contrary to the evidence, particularly the testimonies of Inocencio Antonio and Florthelito Vergara. Petitioner omits to mention the testimonies of his two other witnesses, Eduardo Bartolo and Pilar David, on which the trial court and the Court of Appeals relied for their finding that there was no longer any unlawful aggression when petitioner shot the victims. Bartolo testified that on March 28, 1981, he heard shots and the sound of stones being hurled. When he stepped out of his house

to find out what was going on, he saw petitioner near the gate of their compound, aiming his gun at the Nora brothers. For her part, Pilar David, mother of petitioner, told the court that because she heard gunshots, she went to the gate of their compound to see what was going on. She said she saw petitioner getting inside the gate of the compound. Another defense witness, Inocencio Antonio, testified that the victims were rushing toward petitioner when they were at the corner of Flerida and Kapitan Tiago Streets. Antonio said:
ATTY. CRESCINI: [Defense Lawyer] QWhere were those teenagers numbering 5 to 6 at that time that Jake David was about to fire those two (2) last shots? AAt the corner of Flerida and Kapitan Tiago Streets and they were rushing towards Jake David, sir. 7

The testimonies of these witnesses belie petitioner's claim that he shot the Nora brothers because they had come dangerously close to getting inside their house, having in fact entered their compound. Indeed, only Florthelito Vergara corroborated petitioner's testimony that he shot the victims because they had come close to their house by getting inside their compound. The defense tries to explain the contrary testimonies of the witnesses by pointing out that there are actually two compounds a big compound fronting Flerida Street, which is occupied by his uncles' houses, and a small one in which petitioner's parents live. It claims that petitioner shot the Noras outside the small, but inside the big, compound. But, as the Court of Appeals held: 8

. . . No matter how the defense try to belabor the issue by claiming in its reply brief that there were in fact two (2) compounds . . . the evident fact remains that the victims were shot not in the vicinity of appellant's residence as claimed by the defense but in the streets . . .

Petitioner contends that between the prosecution testimony and his testimony which is corroborated by two disinterested witnesses for the defense, their testimonies should be preferred. He cites the ruling in People v. Quiritan: 9

In a serious charge of murder, the guilt of the accused cannot be predicated on delayed and even inconclusive testimonies of alleged eyewitnesses which manifest signs of fabrication.

But, in that case, the delay in producing the witnesses (two years), coupled with the generally weak and confusing testimonies given by them, showed that their statements had been concocted. There is nothing to show that the testimonies of prosecution witnesses in this case were fabricated. The Quiritan case is a very different case from that at bar. Findings of the trial court on the credibility of witnesses are entitled to great respect because it has the opportunity to observe the deportment of the witnesses and their manner of testifying. 10 The decision of the trial court in this case is notable for its painstaking analysis of the evidence of the parties. Its conclusion that the prosecution witnesses were more credible than the defense witnesses should be upheld in the absence of proof that it has overlooked certain important matters as to the credibility of the witnesses. In shooting the victims, petitioner was not acting to protect himself but retaliating for the insult and physical violence he had received at the hands of the victims and their group. In retaliation, the aggression that was begun by the injured party has already ceased when the accused attacks him. In self-defense, the aggression still exists when the aggressor is injured or disabled by the person making the defense. 11 In this case, defense witness Inocencio Antonio said that the victims and their companions were already running away because they saw petitioner armed with a gun. The unlawful aggression had thus already ceased when the latter fired at them. As Antonio testified:
ATTY. CRESCINI: QNow, what did those teenagers, do after Jake David fired two (2) warning shots in the air?
llcd

AThey were frightened and retreated towards Flerida Street and some at Kapitan Tiago Street, sir. QHow about Jake David, what did he do when those teenagers ran some to Flerida Street and other [sic] at Kapitan Tiago Street? AHe advanced up to the corner of Flerida and Capitan Tiago Street, sir. 12

An act of aggression, when its author does not persist in his purpose, or when he discontinues his attitude to the extent that the object of his attack is no longer in peril, is not unlawful aggression warranting self-defense. 13

Second. Petitioner claims that the appellate court failed to consider exculpatory
facts in his favor. 1.Petitioner claims he was injured and that his injuries, although minor, show that he was attacked by the Noras, for which reason he filed a complaint for frustrated homicide against them in the fiscal's office. This fact was not overlooked by the appellate court. However, it found that "While the accused was indeed mauled and beaten up by the deceased and his companions, the aggression stopped when the accused was able to free himself from the assault of the group and thereafter sought refuge in his house." 14 2.Petitioner felt depressed after the shooting. He vomited and could not eat and had to be hospitalized. These circumstances show that he is not a killer at heart and certainly not the villain that the lower court pictured him to be. Furthermore, petitioner was so afraid he had to close his eyes in firing his gun. Proof of this is that Narciso Nora was only hit at the ankle. The undisputed fact is that the petitioner fired four shots, one a warning shot and three others directed at the victims. Two (2) of the three (3) shots directed against the victims hit their marks. One bullet killed Noel Nora and the other almost killed Narciso Nora, Jr. If the testimony of the prosecution witnesses is to be believed, the third bullet almost hit the zipper of Arturo Nora. This fact belies petitioner's assertion that he fired the gun with his eyes closed and only to defend himself. The fact that one shot hit Noel Nora on the chest, while the other hit Narciso, Jr. only on the ankle, could be due to petitioner's nervousness and unsteady hand, but not to the fact that he did not really mean to shoot them. Petitioner said he fired warning shots even as he warned them not to come near because, up to the last moment, he did not want to shoot the victims. Both the trial court and the Court of Appeals gave no weight to this claim, apparently because of the inconsistency in the testimonies of the defense witnesses. Petitioner said he fired only one warning shot:
ATTY. CRESCINI:

QYou declared that when you saw them approaching and taking advantage of your having slipped, they were armed and you felt very afraid and nervous, what did you do when you saw them approaching? WITNESS JOAQUIN DAVID AI fired the gun upwards.
15

But defense witness Inocencio Antonio said petitioner fired two warning shots:
ATTY. CRESCINI: QNow according to you, he came out with a gun and fired two (2) shots, in what direction, did he fire those two (2) shots? AIn the air, warning shots. QNow what did those teenagers, do after Jake David fired two (2) warning shots in the air? AThey were frightened and retreated towards Flerida Street and some at Kapitan Tiago Street, sir. 16

Antonio later tried to correct his mistake but in doing so, only succeeded in showing that he had lied. Testifying again on October 29, 1985, Antonio said:
ATTY. CRESCINI: QYou also testified during the last hearing that you heard two (2) warning shots on the evening of March 28, 1981, do you remember that? AYes, sir. QWhat made you say that there were, I am referring to the first two (2) warning shots, what made you say that they were warning shots? AI remember that I did not hear two (2) shots but only one, sir. QWhat made you say that the one (1) shot was a warning shot? ABecause the gun was pointing upward, sir.
17

The inconsistency in the testimonies of the defense witnesses so undermined their credibility that both trial court and the Court of Appeals disregarded the testimonies. 3.It is claimed that petitioner is effeminate while in contrast, the deceased Noel Nora, his brother Lito, and a John Doe were bullies who, even at a very young age, had already been charged with slight physical injuries in two cases filed in the Municipal Court of Malabon. The purpose is apparently to show the bad moral character and troublesome nature of the deceased and his brothers, and thereby to show the improbability of the offenses charged pursuant to Rule 130, 51 of the Revised Rules on Evidence. It is true that where self-defense is claimed and the character of the slaying is doubtful, evidence of the violent and dangerous character of the deceased is admissible for the purpose of determining whether the deceased or the accused was the aggressor. 18 The fact, however, is that the cases filed against the deceased had been dismissed. No inference of the violent character of the victims can be drawn from the mere fact that criminal cases had been filed against one of them.

Third. It is argued that, at any rate, petitioner should have been given credit for

incomplete self-defense. It is not stated what element of self-defense is absent to make it incomplete. Be that as it may, our finding that there was no longer any unlawful aggression when petitioner shot the victims rules out the possibility of self-defense, whether complete or incomplete. Petitioner further contends that certain mitigating circumstances, besides voluntary surrender, should have been considered in his favor, to wit: (a) that sufficient provocation or threat on the part of the offended party immediately preceded the act; 19 (b) that he acted in the immediate vindication of a grave offense committed against him; 20 (c) that he acted upon an impulse so powerful as to produce passion or obfuscation. 21 The mitigating circumstance of having acted in the immediate vindication of a grave offense may be appreciated. As the trial court and the Court of Appeals found, the petitioner had been beaten up by the Noras and their companions. Although the unlawful aggression had ceased when petitioner shot the Nora brothers, it was nonetheless a grave offense for the vindication of which petitioner may be given the benefit of a mitigating circumstance. As petitioner's mother testified: 22
ATTY. RODRIGUEZ: [Private Prosecutor]

QDid you ask your son who fired the shots? AI told him, "Ikaw ba, Jake?" I told him, "Are you the one?" "Pinagtulung-tulungan nila po ako kasi."

But the mitigating circumstances of passion or obfuscation and sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These circumstances all arose from one and the same incident, i.e., the attack on the petitioner by the victims and their companions, so that they should be considered as one mitigating circumstance. 23 Nor is the fact that petitioner has not shown himself to be incorrigible a ground for reducing the penalty on him, as the Court of Appeals held in its resolution on the motion for reconsideration. This is a ground for suspension of judgment of youthful offenders, i.e., those over 9 but under 18 years of age, 24 which of course could no longer be ordered since at the time the trial court rendered its decision petitioner was already over 18 years of age. Clearly, this is not a mitigating circumstance and should not be used as basis for reducing the penalty.

One circumstance not raised by the defense but evident from the record of this case is minority. In his statement to the police given on April 2, 1981, petitioner gave his personal circumstances as follows: "Joaquin David y Ejercito, 17 taong gulang, 2nd year college, binata at naninirahan sa 12-C Flerida St., Acacia, Malabon, Metro Manila". 25 At the hearing on November 11, 1987, petitioner's mother stated that he was 16 or 17 years old when the shooting incident happened:
ATTY. RODRIGUEZ: QYou know for a fact that your son Jake being only 17 on March . . . A16 or 17. QBecause he was only 16 or 17, as a young man and quite curious, you know for a fact that sometimes your son got hold of it? AI never saw him hold the gun of his father. I never for an instance saw him hold the gun of his father. 26

When the petitioner testified on March 11, 1987, he gave his age at that time as 22 years old. 27 It is thus clear that on March, 28, 1981, when the crime was committed, he was only 17 years old. We have held in many cases 28 that if the accused alleges minority and the prosecution does not disprove his claim by contrary evidence, such allegation can be accepted as a fact. Thus, in United States v. Bergantino, 29 the accused testified that she was below 15 when the crime was committed. This was corroborated by her mother and her husband. No other evidence, such as the baptismal certificate, was presented to support this claim. The prosecution did not offer any contradictory evidence. This Court held:
While the evidence upon this point is not entirely satisfactory, yet it is sufficient to raise a reasonable doubt upon this material question in the case, to the benefit of which the defendant is entitled. The baptismal certificate or other evidence of this character would have been much more satisfactory to the court, and, if obtainable, should have been introduced. Neither the prosecution nor the defendant saw fit to introduce such evidence.

Any doubt in respect of the age of the accused is resolved in his favor. In United States v. Barbicho, 30 it was held.
In regard to the doubt as to whether the accused is over or under 18 years of age, and in the absence of proof that on the day he committed the crime he was 18 years old, he must perforce be considered as still under that age, and therefore, the mitigating circumstance mentioned in paragraph No. 2 of article 9 of the code should be applied in his favor . . .

In United States v. Agadas,

31

this Court similarly held:

While it is true that in the instant case Rosario testified that he was 17 years of age, yet the trial court reached the conclusion, judging from the personal appearance of Rosario, that "he is a youth 18 or 19 years old." Applying the rule enunciated in the case just cited, we must conclude that there exists a reasonable doubt, at least, with reference to the question whether Rosario was, in fact, 18 years of age at the time the robbery was committed. This doubt must be resolved in favor of the defendant . . .

There are therefore present in this case the privileged mitigating circumstance of minority and two ordinary mitigating circumstances (voluntary surrender and

immediate vindication of a grave offense). Because of the presence of the privileged mitigating circumstance of minority, the penalty of reclusion temporal should be reduced by one degree toprision mayor, pursuant to Art. 68 of the Revised Penal Code. The penalty of prision mayor should further be reduced toprision correccional because of the presence of two ordinary mitigating circumstances without any aggravating circumstance, pursuant to Art. 64, par. 5 of the same Code. Applying the Indeterminate Sentence Law, petitioner should be made to suffer imprisonment, the minimum of which should be within the range of arresto mayor and the maximum of which within the range of prision correccional. On the other hand, for the crime of frustrated homicide, the penalty imposable for the consummated crime of homicide should be reduced by one degree, i.e., to prision mayor. Because of the presence of one privileged mitigating circumstance and two ordinary mitigating circumstances and no aggravating circumstance, the penalty of prision mayorshould be reduced by two degrees, i.e., to arresto mayor. With respect to the award of damages, the amount of P30,000 awarded as indemnity for the death of Noel Nora should be increased to P50,000.00 pursuant to current rulings. 32 But the award of P37,000.00 for actual damages should be reduced to P22,000.00. As held in Fuentes, Jr. v. Court of Appeals, 33 only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victim should be allowed. The award of actual damages cannot be based on the allegation of a witness without any tangible document to support such claim. In this case, only P22,000.00 is supported by a receipt (Exh. X) for funeral expenses. The amount of moral damages (P30,000.00) and attorney's fees (P20,000.00) appear to be reasonable and may therefore be allowed. With respect to the damages awarded for the shooting of Narciso Nora, Jr., the award of P8,728 as actual damages should be reduced to P1,928.65 as the receipts (Exhs. Y and Z) presented show the payment of this amount only to the National Orthopedic Hospital. The award of P20,000.00 as moral damages appears to be just and reasonable and therefore should be allowed under the circumstances. WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that, for the crime of homicide, the petitioner is sentenced to

suffer an indeterminate penalty of 6 months of arresto mayor, as minimum, to 6 years of prision correccional, as maximum, and, for the crime of frustrated homicide, he is sentenced to suffer the penalty of 6 months of arresto mayor. In addition, petitioner is hereby ordered to pay the following: 1.To the heirs of the deceased Noel Nora, the sums of P50,000.00, as indemnity for the death of Noel Nora; P22,000.00, as actual damages; P30,000.00, as moral damages, and P20,000.00, as attorney's fees; 2.The sums of P1,928.65, as actual damages, and P20,000.00, as moral damages and P20,000.00, as attorney's fees to Narciso Nora, Jr. for wounding the latter. SO ORDERED.
cdtai

FIRST DIVISION
[G.R. No. 115217. November 21, 1996.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANNY PAREDES and SANTOS PAREDES JR. alias "TITING," accused, SANTOS PAREDES JR. alias "TITING," accused-appellant.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.
SYLLABUS 1.REMEDIAL LAW; EVIDENCE; CREDIBILITY; TRIAL COURT WITH DISCRETION TO ACCEPT PORTIONS OF WITNESS' TESTIMONY. It is perfectly within the discretion of the trial court to accept portions of the testimony of a witness as it may deem credible and reject those which it believes to be false. The maxim falsus in uno falsus in omibusis not an absolute rule of law and is in fact rarely applied in modern jurisprudence. For this maxim to be invoked, the witness must first be shown to have willfully falsified the truth on one or more material points. But even so when he is found to have willfully falsified this

does not make his entire testimony totally incredible. The court may still, upon its discretion, admit and credit those portions worthy of belief depending upon the corroborative evidence and the probabilities as well as improbabilities of the case. 2.ID.; ID.; ID.; FINDINGS OF FACT OF THE TRIAL COURT ON CREDIBILITY OF WITNESSES, ENTITLED TO GREAT RESPECT. The present case hinges on the credibility of witnesses and, as we have invariably held, the opinion of the trial court as to who of them should be believed is entitled to great respect, this on the oft-repeated rationale born of judicial experience that the trial judge who heard the witnesses testify and had the occasion to observe their demeanor on the stand was in a vantage position to determine who of the witnesses deserve credence. We have examined the records with great care but found nothing which might justify our taking a different view. 3.ID.; ID.; ID.; ALIBI; REQUISITES TO BE APPRECIATED AS A DEFENSE. For alibi to offset the evidence of the prosecution demonstrating his guilt, the accused must establish not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been at the scene of the crime at the time it was committed. Such physical impossibility on the part of accused-appellant was not availing to him inasmuch as he as well as Danny testified that Patin-ay could be reached by jeep from Cabacungan in approximately three (3) hours. 4.ID.; ID.; ID.; ID.; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. Alibi, is an inherently weak defense and, unless supported by clear and convincing evidence, the same cannot prevail over the positive declaration pointing to the accused as the culprit by an eyewitness who had no improper motive to falsely testify. 5.CRIMINAL LAW; MITIGATING CIRCUMSTANCE; OFFENDER IS UNDER EIGHTEEN YEARS OLD, PRIVILEGED MITIGATING. But we find the second argument of appellant meritorious. Article 13, par. (2), of the Revised Penal Code provides that the circumstance that the offender is under eighteen years of age is mitigating and shall be proceeded against in accordance with Art. 80 of the same Code. However, Art. 80 has been expressly repealed by Chapter III of P.D. 603 otherwise known as The Child and Youth Welfare Code. Article 189 of P.D. 603 defines "youthful offender" as a child, minor, or youth, including one who is emancipated in accordance with law, who is over nine years but under eighteen years of age at the time of the commission of the offense. Obviously, the trial court erred in considering the age of accused-appellant at the time of trial

because the law is explicit in this regard. The testimony of appellant that he was only fifteen (15) years old at the time of the commission of the offense is material because under Art. 68, par. (2), of the Revised Penal Code, upon a person over fifteen (15) and under eighteen (18) years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. 6.ID.; MURDER; PENALTY WHERE OFFENSE WAS ATTENDED BY ONE PRIVILEGED MITIGATING CIRCUMSTANCE. Article 248 of the Revised Penal Code punishes murder with reclusion temporal maximum to death. In view of the privileged mitigating circumstance of minority, the penalty next lower in degree shall be imposed in its proper period pursuant to Art. 68, par. (2), of the Code, which is prision mayor maximum to reclusion temporal medium. Applying theIndeterminate Sentence Law, the maximum penalty to be imposed upon accused-appellant shall be taken from the medium period of the imposable penalty, which is reclusion temporal minimum or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months, while the minimum shall be taken from the penalty next lower in degree, which is prision correccional maximum to prision mayor medium or four (4) years and two (2) months to ten (10) years. Consequently, the Court considers fair and just to impose upon accused-appellant an indeterminate prison term of four (4) years, ten (10) months and twenty (20) days of prision correccional maximum as minimum, to twelve (12) years, four (4) months and ten (10) days of reclusion temporal minimum as maximum. DECISION BELLOSILLO, J :
p

At five o'clock in the afternoon of 12 April 1989, or thereabouts, while Amelito Banug was on his way home together with Evangelio Asis Jr. at Kauswagan, Cabacungan, Barobo, Surigao del Sur, they saw the brothers Danny Paredes and Santos Paredes Jr. alias Titing approaching. Danny was carrying a long firearm while Santos Jr. was holding a knife. As they sensed trouble, Evangelio and Amelito ran away. But before they could go far, they heard a burst of gunfire. As he looked back, Amelito saw Danny shooting Evangelio. Wounded, Evangelio fell with face downward to the ground. Then Santos Jr. stabbed the fallen Evangelio.

Amelito then rushed to Evangelio's parents and informed them what happened, after which, Amelito returned to the crime scene accompanied by Evangelio's father. They saw Evangelio already lifeless with four (4) gunshot and two (2) stab wounds. On 9 January 1991 the brothers Danny Paredes and Santos Paredes Jr. were charged with murder before the Regional Trial Court of Lianga, Surigao del Sur. Both raised the defense of alibi. According to Danny, on 8 April 1989 he was shot at the right ear by the father of Evangelio for refusing to give wine on credit to the latter. As a result, Danny was brought to the Provincial Hospital at Patin-ay, Prosperidad, Agusan del Sur, where he was confined until 20 April 1989. His younger brother Santos attended to him (Danny) during his entire period of confinement. The trial court sustained the alibi of Danny as it was substantiated by a medical certificate and the testimony of a certain Legaspi Marayno who attended to a sick nephew in the same room occupied by Danny. But the trial court brushed aside the explanation of Santos Jr. on the basis of his positive identification by Amelito and its finding that Santos Jr. had the physical capability and motive to commit the crime. On 7 February 1994 the trial court acquitted Danny Paredes but adjudged his brother Santos Paredes Jr. guilty as charged and sentenced him to reclusion perpetua, to indemnify the heirs of Evangelio in the amount of P50,000.00, and to pay the costs. 1 Santos Paredes Jr. assails his conviction. He claims that there is clear and convincing evidence that he was not at the scene of the crime when it was perpetrated, and that granting he is guilty there is clear and convincing evidence that he is entitled to the privileged mitigating circumstance of minority. Accused-appellant argues that the testimony of Amelito is not credible because the trial court acquitted his brother on the basis of the same testimony. But assuming that his guilt has been established beyond reasonable doubt, he was only fifteen (15) years old at the time of the commission of the crime and therefore entitled to the privileged mitigating circumstance of minority. Outright, we find the first argument of appellant without merit. Although Danny's acquittal is now beyond judicial review, we say by way of obiter, even if briefly, that his positive identification by Amelito as one of the perpetrators of the crime could have remained unshaken had it not been eclipsed by the undue reliance of

the trial court on the medical certificate which after careful scrutiny reveals the ambiguity of the duration of Danny's examination and confinement at the Agusan del Sur Provincial Hospital. We observe that the attending physician indicated in his handwriting that Danny was confined/examined at the hospital from 11:20 p.m. of 8 April 1989 to 20 April 1989. However, it appears that "20" April was originally "10" April and that the number "2" appearing thereon was merely superimposed. We examined carefully the writing style of the physician regarding the figure "2" and it appears that he wrote the number "2" five (5) other times but they seem to be different from the number "2" in "20" April. It is very probable that "10" April was altered to make it "20" April to strengthen the alibi of Danny that he could not have been at the scene of the crime on 12 April. But that is now water under the bridge, and the defense did not even call the physician to explain the apparent alteration, if not ambiguity, nor did it present the clinical records of Danny regarding his treatment at the hospital if it is true that he was treated and confined thereat at the time Evangelio was killed. In this regard, we agree with the observation of the Solicitor General
Significantly, the lower court, in acquitting Danny, made no mention of any flaw, either in the substance of Amelito's testimony or in his deportment as a witness, that could possibly justify its decision to uphold Danny's alibi over Amelito's positive identification of both Danny and appellant as the culprits responsible for Evangelio's death. Apparently, the lower court concluded that Danny could not have committed the crime charged on the strength of the Medical Certificate of (Exhibit "1") issued by Dr. Norberto S. Reyes, Danny's attending physician, which allegedly shows, among others, that from April 8, 1989 to April 20, 1989, Danny was hospitalized at the Patin-ay Provincial Hospital. 2

It is urged upon us that Amelito's testimony regarding the culpability of Danny having been apparently overthrown and disregarded, his (Amelito's) testimony against him (appellant) must also be similarly considered; hence, he must also be acquitted. We cannot agree. The testimony of Amelito against appellant may still be considered credible. It is perfectly within the discretion of the trial court to accept portions of the testimony of a witness as it may deem credible and reject those which it believes to be false. The maxim falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern jurisprudence. For this maxim to be invoked, the witness must first be shown to have willfully

falsified the truth on one or more material points. But even so when he is found to have willfully falsified this does not make his entire testimony totally incredible. The court may still, upon its discretion, admit and credit those portions worthy of belief depending upon the corroborative evidence and the probabilities as well as improbabilities of the case. 3 Moreover, the present case hinges on the credibility of witnesses and, as we have invariably held, the opinion of the trial court as to who of them should be believed is entitled to great respect, this on the oft-repeated rationale born of judicial experience that the trial judge who heard the witnesses testify and had the occasion to observe their demeanor on the stand was in a vantage position to determine who of the witnesses deserve credence. We have examined the records with great care but found nothing which might justify our taking a different view. 4 For alibi to offset the evidence of the prosecution demonstrating his guilt, the accused must establish not only that he was somewhere else when the crime was committed but also that it was physically impossible for him to have been at the scene of the crime at the time it was committed. 5 Such physical impossibility on the part of accused-appellant was not availing to him inasmuch as he as well as Danny testified that Patin-ay could be reached by jeep from Cabacungan in approximately three (3) hours. 6 Besides, alibi is an inherently weak defense and, unless supported by clear and convincing evidence, the same cannot prevail over the positive declaration pointing to the accused as the culprit 7 by an eyewitness who had no improper motive to falsely testify. 8 But we find the second argument of appellant meritorious. Article 13, par. (2), of the Revised Penal Code provides that the circumstance that the offender is under eighteen years of age is mitigating and shall be proceeded against in accordance with Art. 80 of the same Code. However, Art. 80 has been expressly repealed by Chapter III of P.D. 603 otherwise known as The Child and Youth Welfare Code. Article 189 of P.D. 603 defines "youthful offender" as a child, minor, or youth, including one who is emancipated in accordance with law, who is over nine years but under eighteen years of age at the time of the commission of the offense. Obviously, the trial court erred in considering the age of accusedappellant at the time of trial because the law is explicit in this regard. The testimony of appellant that he was only fifteen (15) years old at the time of the commission of the offense is material because under Art. 68, par. (2), of the Revised Penal Code, upon a person over fifteen (15) and under eighteen (18) years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.

Article 248 of the Revised Penal Code punishes murder with reclusion temporal maximum to death. 9 In view of the privileged mitigating circumstance of minority, the penalty next lower in degree shall be imposed in its proper period pursuant to Art. 68, par. (2), of the Code, which is prision mayor maximum to reclusion temporal medium. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed upon accused-appellant shall be taken from the medium period of the imposable penalty, which is reclusion temporal minimum or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months, while the minimum shall be taken from the penalty next lower in degree, which is prision correccional maximum to prision mayor medium or four (4) years and two (2) months to ten (10) years. Consequently, the Court considers fair and just to impose upon accused-appellant an indeterminate prison term of four (4) years, ten (10) months and twenty (20) days of prision correccional maximum as minimum, to twelve (12) years, four (4) months and ten (10) days of reclusion temporal minimum as maximum. WHEREFORE, the judgment appealed from finding accused-appellant Santos Paredes Jr. alias "Titing" guilty of murder is AFFIRMED subject to the MODIFICATION that he is sentenced to an indeterminate prison term of four (4) years, ten (10) months and twenty (20) days of prision correccional maximum as minimum, to twelve (12) years, four (4) months and ten (10) days of reclusion temporal minimum as maximum, and to pay the costs. SO ORDERED.

EN BANC
[G.R. No. 135981. January 15, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. DECISION PANGANIBAN, J :
p

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory the "battered woman syndrome" (BWS), which allegedly

constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression no immediate and unexpected attack on her by her batterer-husband at the time she shot him. Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This "psychological paralysis" she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn child's. Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case.

The Case
For automatic review before this Court is the September 25, 1998 Decision 1 of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads:
"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages." 2

The Information 3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: 'Cadaveric spasm. 'Body on the 2nd stage of decomposition. 'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. 'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. 'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. Abdomen distended w/ gas. Trunk bloated.' which caused his death."
4

With the assistance of her counsel, 5 appellant pleaded not guilty during her arraignment on March 3, 1997. 6 In due course, she was tried for and convicted of parricide.

The Facts Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:
"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre. "On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiaorunner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas' rented house appeared uninhabited and was always closed. "On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it. "That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him. "On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key

with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his son's misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son. "Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. "About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].' "Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas' house. Ecel went home despite appellant's request for her to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her 'You might as well be killed so nobody would nag me.' Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom." 7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:
"1.Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husband's death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca. "2.Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas.

"3.After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent. "4.Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Ben's forgiveness. "Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic became `already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two sons, there were `three (3) misunderstandings.' The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead, 'using a sharp instrument until the eye was also affected. It was wounded and also the ear' and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.' "Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention. "5.Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which they went to 'Uniloks' and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait 'for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet.' On his way home at about 9:00 in the

evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am innocent.' Basobas thought they were joking. "He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her and that Ben would always take her back after she would leave him 'so many times'. "Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben `even had a wound' on the right forehead. He had known the couple for only one (1) year. "6.Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her. "These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week. "7.In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben. '7.1.Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos. 8 )

7.2.Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw 'the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas). 7.3.Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive 'he used to gamble and when he became drunk, he would go to our house and he will say, 'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and look for a whore.' Mr. Sarabia further testified that Ben `would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that morning. 7.4.Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house 'because she might be battered by her husband.' When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and I can also detect his face.' Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano

testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple 'were very noisy in the sala and I had heard something was broken like a vase.' She said Marivic ran into her room and they locked the door. When Ben couldn't get in, he got a chair and a knife and `showed us the knife through the window grill and he scared us.' She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivic's house on November 15, 1995, the couple were still quarreling. 7.5.Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.' xxx xxx xxx 'Dr. Caing's clinical history of the tension headache and

hypertension of Marivic on twenty-three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of

Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist

who is qualified to examine the psychological make-up of the patient, 'whether she is capable of committing a crime or not.'

7.6Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic to return in the

morning, but he did not hear from her again and assumed 'that they might have settled with each other or they might have forgiven with each other.' xxx xxx xxx "Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995. "Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu . . . Rubillos.' "On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna. 'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his things.' "9.The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. "10.Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases,

such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief. xxx xxx xxx "Dra. Cerillo said that `there is only one injury and that is the injury involving the skeletal area of the head' which she described as a `fracture'. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death. "Dra. Cerillo was not cross-examined by defense counsel. "11.The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, . . . wilfully, unlawfully and feloniously attack, assault, hit and wound . . . her legitimate husband, with the use of a hard deadly weapon . . . which caused his death.' "12.Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998. "13.On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTCBranch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH. "14.The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. "The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel.
DSAEIT

"15.Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her `Brief without counsels' to the Court. "This letter was stamp-received by the Honorable Court on 4 February 2000. "16.In the meantime, under date of 17 February 2000, and stampreceived by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial reopening of the case a quo to take the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the postmortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead pipe.
"17.In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert psychological and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted.' "18.On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. "Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. "Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the

Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled 'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature. "Dra. Dayan testified that for the research she conducted, on the sociodemographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that 'there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.' "Dra. Dayan described domestic violence to comprise of `a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.' xxx xxx xxx "Dra. Dayan testified that in her studies, `the battered woman usually has a very low opinion of herself. She has a self-defeating and selfsacrificing characteristics. . . . they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that usually a battered . . . comes from a dysfunctional family or from 'broken homes.' "Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very

aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent.' The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so `there is a lot of modeling of aggression in the family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children. xxx xxx xxx "Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering 'physical violence on both of them.' She said that in a 'normal marital relationship,' abuses also happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and `even would cause hospitalization on the victim and even death on the victim.' xxx xxx xxx "Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the past.' xxx xxx xxx "Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim. xxx xxx xxx

"19.On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City. "Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons. "He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954-1978' which was presented twice in international congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines 2000', which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86. "Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry. "Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza. "As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an

unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this . . . is very dangerous.' "In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.' xxx xxx xxx "Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks 'of nothing but the suffering.' xxx xxx xxx "A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her 'self-world' is damaged. "Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally `internalizes what is around him within the environment.' And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong facade 'but in it there are doubts in himself and prone to act without thinking.' xxx xxx xxx "Dr. Pajarillo emphasized that `even though without the presence of the precipator (sic) or the one who administered the battering, that reexperiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.' xxx xxx xxx "Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and `primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding

or in a hospital . . . because that abound in the household.' He said a victim resorts to weapons when she has 'reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively.' xxx xxx xxx "Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001. xxx xxx xxx "On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivic's mental condition was that she was 're-experiencing the trauma.' He said 'that we are trying to

explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her mind.' At the time he interviewed Marivic 'she was
more subdued, she was not super alert anymore . . . she is mentally stress (sic) because of the predicament she is involved.' xxx xxx xxx "20.No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were elevated." 9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed lying in bed asleep when Marivic smashed him with a pipe at the back of his head. The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the re-examination of the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts' testimonies. On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any. Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan 10 and Alfredo Pajarillo, 11 supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case. 12

The Issues
Appellant assigns the following alleged errors of the trial court for this Court's consideration:
"1.The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense. "2.The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide. "3.The trial court gravely erred finding the cause of death to be by beating with a pipe. "4.The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a

drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband. "5.The trial court gravely erred in not requiring testimony from the children of Marivic Genosa. "6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent apologies wereindicia of guilt, instead of a clear attempt to save the life of her unborn child. "7.The trial court gravely erred in concluding that there was an aggravating circumstance of treachery. "8.The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death." 13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case. 14 In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial court's disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty

decision without reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and on the basis of those and of the documentary evidence on record made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented. Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation. 15

Second, the lower court did not err in finding as a fact that Ben Genosa and
appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago, 16 this Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to."

Two of the prosecution witnesses namely, the mother and the brother of appellant's deceased spouse attested in court that Ben had been married to Marivic. 17 The defense raised no objection to these testimonies. Moreover, during her direct-examination, appellant herself made a judicial admission of her marriage to Ben. 18 Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made. 19 Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in

court as to the fact of her marriage to the deceased was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's

death whether by a gunshot or by beating with a pipe has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victim's death." Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben
was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of "battered woman syndrome," for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from

appellant's children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present. 20 As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of

Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances has little bearing on the final resolution of the case.

First Legal Issue: Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes selfdefense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence. 21 Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense. 22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense. 23 By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time." 24 A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman." 25 Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will improve. 26 More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence," 27 which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase. 28 During the tension-building phase, minor battering occurs it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to

prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence "spirals out of control" and leads to an acute battering incident. 29 The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt. 30 The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this "good, gentle and caring man" is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible

for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase, she and her batterer are indeed emotionally dependent on each other she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness," each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other. 31

History of Abuse in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows:
"ATTY. TABUCANON QHow did you describe your marriage with Ben Genosa? AIn the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker. QYou said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you? AHe always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me. QHow many times did this happen? ASeveral times already. QWhat did you do when these things happen to you? AI went away to my mother and I ran to my father and we separate each other.

QWhat was the action of Ben Genosa towards you leaving home? AHe is following me, after that he sought after me. QWhat will happen when he follow you? AHe said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said `sorry'. QDuring those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor? AYes, sir. QWho are these doctors? AThe company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. xxx xxx xxx QYou said that you saw a doctor in relation to your injuries? AYes, sir. QWho inflicted these injuries? AOf course my husband. QYou mean Ben Genosa? AYes, sir. xxx xxx xxx [Court]/to the witness QHow frequent was the alleged cruelty that you said? AEverytime he got drunk. QNo, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence?

AEverytime he got drunk. QIs it daily, weekly, monthly or how many times in a months or in a week? AThree times a week. QDo you mean three times a week he would beat you? ANot necessarily that he would beat me but sometimes he will just quarrel me." 32

Referring to his "Out-Patient Chart" 33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner.
"QSo, do you have a summary of those six (6) incidents which are found in the chart of your clinic? AYes, sir. QWho prepared the list of six (6) incidents, Doctor? AI did. QWill you please read the physical findings together with the dates for the record. A1. May 12, 1990 physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero; 2. March 10, 1992 Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora; 3. March 26, 1993 Abrasion, Furuncle (L) Axilla; 4. August 1, 1994 Pain, mastitis (L) breast, 2 to trauma. Attending physician: Dr. Caing; 5. April 17, 1995 Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and 6. June 5, 1995 Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora.

QAmong the findings, there were two (2) incidents wherein you were the attending physician, is that correct? AYes, sir. QDid you actually physical examine the accused? AYes, sir. QNow, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla? AAbrasion is a skin wound usually when it comes in contact with something rough substance if force is applied. QWhat is meant by furuncle axilla? AIt is secondary of the light infection over the abrasion. QWhat is meant by pain mastitis secondary to trauma? ASo, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain. QSo, these are objective physical injuries. Doctor? xxx xxx xxx QWere you able to talk with the patient? AYes, sir. QWhat did she tell you? AAs a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband. QYou mean, Ben Genosa? AYes, sir. xxx xxx xxx

ATTY. TABUCANON: QBy the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened? AAs per record, yes. QWhat was the date? AIt was on November 6, 1995. QSo, did you actually see the accused physically? AYes, sir. QOn November 6, 1995, will you please tell this Honorable Court, was the patient pregnant? AYes, sir. QBeing a doctor, can you more engage at what stage of pregnancy was she? AEight (8) months pregnant. QSo in other words, it was an advance stage of pregnancy? AYes, sir. QWhat was your November 6, 19'95 examination, was it an examination about her pregnancy or for some other findings? ANo, she was admitted for hypertension headache which complicates her pregnancy. QWhen you said admitted, meaning she was confined? AYes, sir. QFor how many days? AOne day. QWhere?

AAt PHILPHOS Hospital. xxx xxx xxx QLets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant. What is this all about? ABecause she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twentythree (23) times. QFor what? ATension headache. QCan we say that specially during the latter consultation, that the patient had hypertension? AThe patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature. QWhat did you deduce of tension headache when you said is emotional in nature? AFrom what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem. QYou mean problem in her household? AProbably. QCan family trouble cause elevation of blood pressure, Doctor? AYes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication. QIn November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

AOn November 6, 1995 consultation, the blood pressure was 180/120.

QIs this considered hypertension? AYes, sir, severe. QConsidering that she was 8 months pregnant, you mean this is dangerous level of blood pressure? AIt was dangerous to the child or to the fetus."
34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben. 35 Ecel Arano also testified 36 that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple "were very noisy . . . and I heard something was broken like a vase." Then Marivic came running into Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife. On the afternoon of November 15, 1995, Marivic again asked her help this time to find Ben but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave. On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling. 37 Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:
"ATTY. TABUCANON: QPlease tell this Court, can you recall the incident in November 15, 1995 in the evening?

AWhole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, `he was not home yet'. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children. QThis is evening of November 15, 1995? AYes, sir. QWhat time did Ben Genosa arrive? AWhen he arrived, I was not there, I was in Isabel looking for him. QSo when he arrived you were in Isabel looking for him? AYes, sir. QDid you come back to your house? AYes, sir. QBy the way, where was your conjugal residence situated this time? ABilwang. QIs this your house or you are renting? ARenting. QWhat time were you able to come back in your residence at Bilwang? AI went back around almost 8:00 o'clock. QWhat happened when you arrived in your residence? AWhen I arrived home with my cousin Ecel whom requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year. QWho was this cousin of yours who you requested to sleep with you?

AEcel Arao, the one who testified. QDid Ecel sleep with you in your house on that evening? ANo, because she expressed fears, she said her father would not allow her because of Ben. QDuring this period November 15, 1995, were you pregnant? AYes, 8 months. QHow advance was your pregnancy? AEight (8) months. QWas the baby subsequently born? AYes, sir. QWhat's the name of the baby you were carrying at that time? AMarie Bianca. QWhat time were you able to meet personally your husband? AYes, sir. QWhat time? AWhen I arrived home, he was there already in his usual behavior. QWill you tell this Court what was his disposition? AHe was drunk again, he was yelling in his usual unruly behavior. QWhat was he yelling all about? AHis usual attitude when he got drunk. QYou said that when you arrived, he was drunk and yelling at you? What else did he do if any? AHe is nagging at me for following him and he dared me to quarrel him. QWhat was the cause of his nagging or quarreling at you if you know?

AHe was angry at me because I was following . . . him, looking for him. I was just worried he might be overly drunk and he would beat me again. QYou said that he was yelling at you, what else, did he do to you if any? AHe was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him, `why did you switch off the light when the children were there.' At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television. QWhat did he do with the bolo? AHe cut the antenna wire to keep me from watching T.V. QWhat else happened after he cut the wire? AHe switch off the light and the children were shouting because they were scared and he was already holding the bolo. QHow do you described this bolo? A1 feet. QWhat was the bolo used for usually? AFor chopping meat. QYou said the children were scared, what else happened as Ben was carrying that bolo? AHe was about to attack me so I run to the room. QWhat do you mean that he was about to attack you? AWhen I attempt to run he held my hands and he whirled me and I fell to the bedside. QSo when he whirled you, what happened to you?

AI screamed for help and then he left. QYou said earlier that he whirled you and you fell on the bedside? AYes, sir. QYou screamed for help and he left, do you know where he was going? AOutside perhaps to drink more. QWhen he left what did you do in that particular time? AI packed all his clothes. QWhat was your reason in packing his clothes? AI wanted him to leave us. QDuring this time, where were your children, what were their reactions? AAfter a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck. QYou said that when Ben came back to your house, he dragged you? How did he drag you? COURT INTERPRETER: (The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) AAnd he dragged me towards the door backward. ATTY. TABUCANON: QWhere did he bring you? AOutside the bedroom and he wanted to get something and then he kept on shouting at me that `you might as well be killed so there will be nobody to nag me.' QSo you said that he dragged you towards the drawer? AYes, sir.

QWhat is there in the drawer? AI was aware that it was a gun. COURT INTERPRETER: (At this juncture the witness started crying). ATTY. TABUCANON: QWere you actually brought to the drawer? AYes, sir. QWhat happened when you were brought to that drawer? AHe dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. COURT INTERPRETER: (The witness at this juncture is crying intensely). xxx xxx xxx ATTY. TABUCANON: QTalking of drawer, is this drawer outside your room? AOutside. QIn what part of the house? ADining. QWhere were the children during that time?

AMy children were already asleep. QYou mean they were inside the room? AYes, sir. QYou said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? AThree (3) inches long and inch wide. QIs it a flexible blade? AIt's a cutter. QHow do you describe the blade, is it sharp both edges? AYes, because he once used it to me. QHow did he do it? AHe wanted to cut my throat. QWith the same blade? AYes, sir, that was the object used when he intimidate me."
38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to the court a quo as follows:
"Q:What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to this Court what her life was like as said to you? A:What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going

home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below:

"QIn your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather? AThe most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life. QBefore you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case? AI believe I had an idea of the case, but I do not know whether I can consider them as substantial. xxx xxx xxx QDid you gather an information from Marivic that on the side of her husband they were fond of battering their wives? AI also heard that from her? QYou heard that from her? AYes, sir. QDid you ask for a complete example who are the relatives of her husband that were fond of battering their wives?

AWhat I remember that there were brothers of her husband who are also battering their wives. QDid she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room? AShe told me about that. QDid she inform you in what hotel in Ormoc? ASir, I could not remember but I was told that she was battered in that room. QSeveral times in that room? AYes, sir. What I remember was that there is no problem about being battered, it really happened. QBeing an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion? ASir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost she's not during the time and that is why it happened because of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband. QI do believe that she is a battered wife. Was she extremely battered? ASir, it is an extreme form of battering. Yes."
40

Parenthetically, the credibility of appellant was demonstrated as follows:

"QAnd you also said that you administered [the] objective personality test, what . . . [is this] all about? AThe objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person.

QWhat do you mean by that? AMeaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or . . . [will] tell a lie[?] QAnd what did you discover on the basis of this objective personality test? AShe was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that I'm gathering from her are the truth. 41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report, 42 which was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of her marriage to Ben, everything looked good the atmosphere was fine, normal and happy until "Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting . . . At the same time Ben was often joining his barkada in drinking sprees." The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk." Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. . . .." 43 From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot

rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. "How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called 'battered wife syndrome.'" 44 To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with nay, comprehensible to those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women. 45 The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape." 46 In her years of research, Dr. Walker found that "the abuse often escalates at the point of separation and battered women are in greater danger of dying then." 47 Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low opinion of herself. She has . . . self-defeating and selfsacrificing characteristics. . . . [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them." 48 According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner poverty, self-blame and guilt arising from the latter's belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change. 49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness.50 Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a form of "anxiety neurosis or neurologic anxcietism." 51 After being repeatedly and severely abused, battered persons "may believe that they are essentially helpless, lacking power to change their situation. . . . [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victim's ability to muster an active response to try to escape further trauma. Furthermore, . . . the victim ceases to believe that anything she can do will have a predictable positive effect." 52 A study 53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a person has control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape." He said that it was the cognitive aspect the individual's thoughts that proved all-important. He referred to this phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less important than the individual's set of beliefs or perceptions concerning the situation. Battered women don't attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances." 54 Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape. 55 Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship. 56 Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS.
TcSICH

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage? Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mother's or father's house; 58 that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode. Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation? In sum, the defense failed to elicit from appellant herself her factual experiences

and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or

deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each other's testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they

failed to present in court the factual experiences and thoughts that appellant had related to them if at all based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense. 59 From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense 60 she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not merely imaginary. 61 Thus, the Revised Penal Code provides the following requisites and effect of selfdefense: 62
"Art. 11.Justifying circumstances. The following do not incur any criminal liability: "1.Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent
or repel it;

Third. Lack of sufficient provocation on the part of the person

defending himself."

Unlawful aggression is the most essential element of self-defense. 63 It presupposes actual, sudden and unexpected attack or an imminent danger thereof on the life or safety of a person. 64 In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. Had Ben still been awaiting Marivic when she came out of their children's bedroom and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by installment.'" 65 Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger. 66 Considering such circumstances and the existence of BWS, self-defense may be appreciated. We reiterate the principle that aggression, if not continuous, does not warrant self-defense. 67 In the absence of such aggression, there can be no self-defense complete or incomplete on the part of the victim. 68 Thus, Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties. 69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder. 71 Expounding thereon, he said:
"QWhat causes the trauma, Mr. Witness? AWhat causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder . . . xxx xxx xxx QYou referred a while ago to severity. What are the qualifications in terms of severity of the posttraumatic stress disorder, Dr. Pajarillo? AThe severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree.

QBut in terms of the gravity of the disorder, Mr. Witness, how do you classify? AWe classify the disorder as [acute], or chronic or delayed or [a]typical. QCan you please describe this pre[-]classification you called delayed or [atypical]? AThe acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide. QAnd in chronic cases, Mr. Witness? AThe chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:
"QBut just the same[,] neurosis especially on battered woman syndrome . . . affects . . . his or her mental capacity? AYes, your Honor. QAs you were saying[,] it . . . obfuscated her rationality? AOf course obfuscated."
73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative provocation which broke down her psychological resistance and natural self-control," "psychological paralysis," and "difficulty in concentrating or impairment of memory."
acAESC

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was,
thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9 74 and 10 75 of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason. 77 To appreciate this circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal equanimity. 78 Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus. 79 His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him. The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony 80 that with "neurotic anxiety" a psychological effect on a victim of "overwhelming brutality [or] trauma" the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is beyond the control of a person under similar circumstances, must have been what Marivic experienced

during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion and obfuscation. It should be clarified that these two circumstances psychological paralysis as well as passion and obfuscation did not arise from the same set of facts. On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts. The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part.

Second Legal Issue: Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make. 81 In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. 82 Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself. 83 Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death:
"QYou said that when Ben came back to your house, he dragged you? How did he drag you?

COURT: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) AAnd he dragged me towards the door backward. ATTY. TABUCANON: QWhere did he bring you? AOutside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might as well be killed so there will be nobody to nag me' QSo you said that he dragged you towards the drawer? AYes, sir. QWhat is there in the drawer? AI was aware that it was a gun. COURT INTERPRETER (At this juncture the witness started crying) ATTY. TABUCANON: QWere you actually brought to the drawer? AYes, sir. QWhat happened when you were brought to that drawer? AHe dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the

feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. COURT INTERPRETER (The witness at this juncture is crying intensely). xxx xxx xxx QYou said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? AThree (3) inches long and inch wide. QIt is a flexible blade? AIt's a cutter. QHow do you describe the blade, is it sharp both edges? AYes, because he once used it to me. QHow did he do it? AHe wanted to cut my throat. QWith the same blade? AYes, sir, that was the object used when he intimidate me. xxx xxx xxx ATTY. TABUCANON: QYou said that this blade fell from his grip, is it correct? AYes, because I smashed him. QWhat happened? ABen tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room. QWhat else happened?

AWhen I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my blood pressure. COURT INTERPRETER: (Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape). ATTY. TABUCANON: QYou said you went to the room, what else happened? AConsidering all the physical sufferings that I've been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.
AEHCDa

COURT /to Atty. Tabucanon QYou shot him? AYes, I distorted the drawer."
84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant. 85 Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked. 86 There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-

spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor. 87

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating circumstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5 88 of the same Code. 89The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense. 90 Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree prision mayor and the maximum shall be within the range of the medium period of reclusion temporal. Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayorin its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole. 91

Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis-a-vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so. The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered person's mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable not necessarily immediate and actual grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all of these elements were duly established. WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum. Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio. SO ORDERED.

Puno, Carpio, Corona, Carpio Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur. Vitug and Quisumbing, JJ., concur in the result. Davide, Jr., C.J., Sandoval-Gutierrez and Austria-Martinez, JJ ., join Mr. Justice
Santiago in his dissent.

Ynares-Santiago, J., see dissenting opinion.

Separate Opinions
YNARES-SANTIAGO, J., dissenting: In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from "Battered Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I register my dissent. The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. It operates upon the premise that a woman who has been cyclically abused and controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings. 1 As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the tension-building phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way; (2) the acute battering incident phase which is characterized by brutality, destructiveness and sometimes, death. The battered woman usually realizes that she cannot reason with him and that resistance would only exacerbate her condition; and (3) the tranquil period, where the couple experience a compound relief and the batterer may show a tender and nurturing behavior towards his partner. Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly reveal that she knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she was afraid every time her husband came home drunk. Clearly, whenever

appellant requested for Arano's company, she was experiencing a tensionbuilding phase. The barangay captain, Panfilo Tero, also testified that appellant sought his help two months before she killed her husband, again demonstrating that she was in the tension-building phase and was attempting to prevent another incident of acute battery. Appellant presented evidence to prove that the tension-building phase would occur whenever her husband would go out looking for other women, would lose at cockfights or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by some witnesses for the prosecution, even shouted back, fought off or even injured her husband during the tension-building phase, if only to prevent the onset of acute battery.
cAIDEa

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly have testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before this time. It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek shelter in her mother's or her father's house after an acute battering incident, after which would begin the process of begging for forgiveness, promises of change in behavior and return to the conjugal home, only for the same cycle to begin all over again. To require appellant to prove the state of mind of the deceased, as seems to be required in theponencia, would mean that no person would ever be able to prove self-defense in a battered woman case. Appellant could not possibly prove whether the deceased felt provoked into battering by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or did help her, whether out of fear or insensitivity, during the violent marriage she endured. The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter. 2 The physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage, 3 six incidents of which were documented by the 1990-1995 medical records of Marivic. They included, among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on the different parts of her body even during her

pregnancy in 1995. 4 The tranquil period underwent by Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than 5 occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive the latter every time he would fetch her and promise to change. 5 All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her death. This state of mind of Marivic was revealed in her testimony given way back in 1998, before she was examined by experts on BWS. Unaware of the significance of her declarations, she candidly narrated how she felt immediately before she killed the deceased, thus

ATTY. TABUCANON QSo you said that he dragged you towards the drawer? AYes, sir. QWhat is there in the drawer? AI was aware that it was a gun. xxx xxx xxx QWhat happened when you were brought to the drawer? AHe dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. xxx xxx xxx QWhat else happened?
6

AWhen I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was frightened I was about to die because of my blood pressure.
STIcaE

xxx xxx xxx AConsidering all the physical sufferings that I've been through him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got the gun and shot him.

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower court but only here on automatic review. This makes the foregoing testimony more worthy of great weight and credence considering that the same could not have been cunningly given to suit or conform to the profile of a battered woman. Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing testified that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy. 8 Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic, assessed the effects of the repeated violence on the latter as follows:
AWhat I remember . . . was it was more than ten years that she was suffering from emotional anguish. There were a lot of instance of abuses, . . . emotional abuse . . . verbal abuse and . . . physical abuse. The husband had very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing, being involved in cockfighting and in going home very angry which . . . triggered a lot of physical abuse. She also had the experience of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she . . . [felt] almost like living in purgatory or even in hell when it was happening day in and day out. xxx xxx xxx

QAnd what was it that triggered . . . that tragedy in your opinion? AI think for several weeks, she was already having all those tensions, all those anxieties, they were not enough, that the husband was even going to cockfighting . . . AShe was angry with him, he was angry with her and I think he dragged her and even spun her around. She tried to fight him so there was a lot of fight and when she was able to escape, she went to another room and she locked herself with the children. And when the husband was for a while very angry he calms down then and then (sic). But I remember before that the husband was looking for the gun and I think he was not able to open the cabinet because she had the key. So during that time, I remember, that she was very much afraid of him, so when the husband calmed down and he was asleep, all she was concerned was to end up her misery, to save her child which she was carrying and to save her two children. I believe that somehow she's not rational. 9 xxx xxx xxx PROS. TRUYA QMrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on her part?
TCacIA

AYes, sir. QTo what she did to her husband (sic)? AYes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her two sons and [the] child she's bringing. QHad she not able to kill her husband, would she still be in the very short moment with the victim (sic)? AIf she did not do that she believes that she will be the one who would be killed. 10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her husband. The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree. Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be imminent and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense. Once BWS and an impending danger based on the conduct of the deceased in previous battering episodes are established, actual occurrence of an assault is no longer a condition sine qua non before self-defense may be upheld. Threatening behavior or communication can satisfy the required imminence of danger. As stated in the ponencia, to require the battered person to await an obvious deadly attack before she can defend her life would amount to sentencing her to murder by installment.
AHCETa

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus entitling her to a complete self-defense even if there was no actual employment of violence by the deceased at the time of the killing. Marivic had every reason to believe that the deceased would kill her that night not only because the latter was verbally threatening to kill her while attempting to get a gun from the drawer, but more importantly because the deceased wounded her on the wrist with a bolo, and because of the deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder are the relevant testimonies of Marivic
AWhen I arrived home, he was already in his usual behavior. xxx xxx xxx AHe was drunk again, he was yelling in his usual unruly behavior. xxx xxx xxx

AHe was nagging . . . me at that time and I just ignore[d] him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he switch off the light and I said to him, "why did you switch off the light when the children were there." At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television. xxx xxx xxx AHe switch[ed] off the light and the children were shouting because they were scared and he was already holding a bolo. QHow do you describe this bolo? A1 feet. xxx xxx xxx QYou said the children were scared, what else happened as Ben was carrying that bolo? AHe was about to attack me so I ran to the room. QWhat do you mean that he was about to attack you? AWhen I attempt[ed] to run he held my hands and he whirled me and I fell [on] the bedside. 11 xxx xxx xxx COURT To the witness xxx xxx xxx QThe bolo that you said which Ben was holding at that time, [was] it a bolo or a knife? ABolo.

QWere you wounded or were there inflictions on your body when he was holding and trying to frighten you [with] that bolo? ANo, only here. COURT INTERPRETER (The witness pointed to her wrist). COURT To the witness QYou were demonstrating a motion, whirling, did your husband really whirl you? AYes, your Honor. QHow did he whirl you? AWhirled around.
aScITE

QJust like spinning. xxx xxx xxx QWhere did he whirl you, was it inside the bedroom or outside? AIn our bedroom. QThen after the whirling what happened? AHe kicked my ass and then I screamed.
12

xxx xxx xxx QYou screamed for help and he left, do you know where he was going? AOutside perhaps to drink more. QWhen he left what did you do . . .? AI packed all his clothes. QWhat was your reason in packing his clothes?

AI wanted him to leave us.

13

xxx xxx xxx AI was frightened that my husband would hurt me, so I packed all his things then on the following day I will leave, I was afraid and I want to make sure I would deliver my baby safely. 14

xxx xxx xxx AAfter a couple of hours, he went back again and got angry with me for packing his clothes, then he dragged me again outside of the bedroom holding my neck. ATTY. TABUCANON QYou said that when Ben came back to your house, he dragged you? How did he drag . . . you? COURT INTERPRETER (The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) AAnd he dragged me towards the door backwards. ATTY. TABUCANON QWhere did he bring you? AOutside the bedroom and he wanted to get something and then he kept shouting at me that "you might as well be killed so there will be nobody to nag me." QSo you said that he dragged you towards the drawer? AYes, sir. QWhat is there in the drawer? AI was aware that it was a gun. xxx xxx xxx

QWhat happened when you were brought to the drawer? AHe dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. xxx xxx xxx QYou said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? AThree (3) inches long and inch wide. QIs it a flexible blade? AIt's a cutter. QHow do you describe the blade, is it sharp both edges? AYes, because he once used it to me. QHow did he do it? AHe wanted to cut my throat. QWith the same blade? AYes sir, that was the object used when he intimidate me. RE-DIRECT BY ATTY. TABUCANON QIn other words, there were two (2) incidents, the first incident and then he left and then two (2) hours after he came back? AYes, sir. QAnd the whirling happened in the first incident?
EcDTIH

15

AYes, sir. QAnd the dragging with arms flexed in her neck and on that blade happened on the second incident (sic)? AYes, sir. xxx xxx xxx COURT To the witness QWhy, what is that blade about? AA cutter about 3 inches long. QWho used that? ABen. QHe used that on you? AHe scared me on that (sic). xxx xxx xxx QBut he did not hit you with that? AYes, because I managed to run every time he scared (sic).
16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at bar, there is more than sufficient physical evidence presented by the appellant from which her mental state can be inferred. The prosecution did not object to the presentation of these physical and testimonial pieces of evidence, namely, the medical records of 23 instances of domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to kill her spouse in the first place. The majority need not worry that women around the country will mastermind the killings of their husbands and then use this Decision to bolster their attempts to employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the deceased were illegal and unlawful and were committed immediately before appellant could recover her natural equanimity. But what is the natural equanimity of a battered woman? Appellant was not a normal married woman. She can never be in a state of natural equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of acute battery. The esteemed ponente also correctly found that the appellant acted with diminished will-power. However, he failed to go further. In the case of People v. Javier, 17 it was held:
Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the time of the killing. 18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a battered woman for 1314 years and that she suffered from the "Battered Woman Syndrome". Expert testimony was presented and admitted to this effect, such that the ponente ably discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus presented is to make impossible the proof of mental state. Evidence as to the mental state need not be also "beyond reasonable doubt." Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of the deceased. The danger posed or created in her mind by the latter's threats using bladed weapons, bred a state of fear, where under the circumstances, the natural response of the battered woman would be to defend herself even at the cost of taking the life of the batterer. The ponencia's acknowledgment of "Battered Woman Syndrome" as a valid form of self-defense, is a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes to the antecedents

of this case. The facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the charge of parricide is therefore in order. IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

SECOND DIVISION
[G.R. No. 155041. February 14, 2007.] REYNALDO DE CASTRO, petitioner, vs. HON. MANUEL B. FERNANDEZ, JR. in his official capacity as Presiding Judge of the Regional Trial Court of Las Pias City, Branch 254, Metro Manila, respondent. DECISION CARPIO, J :
p

The Case This petition for certiorari 1 assails the Orders dated 5 and 28 August 2002 of Judge Manuel B. Fernandez, Jr., Regional Trial Court of Las Pias City, Branch 254 (trial court) in Criminal Case No. 02-0527. 2 The 5 August 2002 Order denied petitioner Reynaldo de Castro's (petitioner) Motion for Reinvestigation and the 28 August 2002 Order denied petitioner's Motion for Reconsideration. The Facts On the evening of 11 June 2002, barangay tanods invited petitioner to the barangay hall in connection with a complaint for sexual assault filed by AAA, 3 on behalf of her daughter BBB. 4 Petitioner accepted the invitation without any resistance. On 12 June 2002, the barangay officials turned over petitioner to the Las Pias City Police Station.

On 13 June 2002, the police indorsed the complaint to the city prosecutor of Las Pias City for inquest proceedings. 5Later, the state prosecutor issued a commitment order for petitioner's detention. 6 On 18 June 2002, State Prosecutor Napoleon A. Monsod filed an Information against petitioner for the crime of rape. The Information reads:
The undersigned State Prosecutor II accuses REYNALDO DE CASTRO y AVELLANA of the crime of Rape (Art. 266-A, par. 2 in relation to Art. 266-B, Revised Penal Code, as amended by R[.]A[.] [No.] 8353 and R[.]A[.] [No.] 7659) and in relation with R[.]A[.] [No.] 7610, committed as follows: That on or about the 11th day of June 2002 or prior thereto, in the City of Las Pias, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and feloniously commits [sic] act[s] of sexual assault with one [BBB], a seven (7) years [sic] old minor, by touching and inserting his finger into her vagina against her will and consent.
caHIAS

CONTRARY TO LAW.

On 1 July 2002, petitioner filed a Motion for Reinvestigation praying that the trial court issue an order directing the Office of the Prosecutor of Las Pias City to conduct a preliminary investigation in accordance with Rule 112 of the Rules of Court. Petitioner also asked that the charge filed against him be amended to acts of lasciviousness instead of rape since "fingering" is not covered under Article 266-A, paragraph 2 of Republic Act No. 8353 (RA 8353). 8 In the Order dated 5 August 2002, the trial court denied petitioner's Motion for Reinvestigation. On 22 August 2002, petitioner filed a Motion for Reconsideration. In the Order dated 28 August 2002, the trial court denied the motion. Hence, this petition. The Issues Petitioner raises the following issues:
1.WHETHER A FINGER CONSTITUTES AN OBJECT OR INSTRUMENT IN THE CONTEMPLATION OF REPUBLIC ACT NO. 8353; and

2.WHETHER THE ACCUSED IS ENTITLED TO A PRELIMINARY INVESTIGATION IN FULL ACCORD WITH RULE 112 OF THE RULES ON CRIMINAL PROCEDURE. 9

The Court's Ruling We dismiss the petition. At the outset, we declare that petitioner availed of the wrong remedy in assailing the trial court's Orders. Petitioner filed before this Court a petition captioned "Petition for Certiorari" and specifically stated that the petition is based on Rule 65. However, petitioner also stated that the issues raised are pure questions of law, 10 which properly fall under Rule 45. Under Rule 65, a special civil action for certiorari lies where a court has acted without or in excess of jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. 11 In this case, petitioner failed to allege any circumstance which would show that in issuing the assailed Orders, the trial court acted without or in excess of jurisdiction or with grave abuse of discretion. Moreover, following the hierarchy of courts, a special civil action for certiorari assailing an order of the Regional Trial Court should be filed with the Court of Appeals and not with this Court. 12 Petitioner did not raise any special reason or compelling circumstance that would justify direct recourse to this Court. 13 On the other hand, if the petition is to be treated as a petition for review under Rule 45, the petition would fail because only judgments or final orders that completely dispose of the case can be the subject of a petition for review. 14 In this case, the assailed Orders are only interlocutory orders. Petitioner should have proceeded with the trial of the case and if the trial court renders an unfavorable verdict, petitioner should assail the Orders as part of an appeal that may eventually be taken from the final judgment to be rendered in this case. 15 Additionally, the petition will not prosper because petitioner failed to comply with the requirements under Rule 45 as to the documents, and their contents, which should accompany the petition. Petitioner failed to submit a duplicate original or certified true copy of the 28 August 2002 Order denying the Motion for Reconsideration. 16 Petitioner also failed to show the timeliness of the filing of the petition because the petition did not state the date when petitioner received the 28 August 2002 Order denying the Motion for Reconsideration. 17

Hence, on the issue alone of the propriety of the remedy sought by petitioner, this petition must fail.
DHIaTS

On the merits, petitioner is deemed to have waived his right to a preliminary investigation. Under Section 7 of Rule 112,18 if an information is filed in court without a preliminary investigation, the accused may, within five days from the time he learns of its filing, ask for a preliminary investigation. The accused's failure to request for a preliminary investigation within the specified period is deemed a waiver of his right to a preliminary investigation. 19 In this case, the information against petitioner was filed with the trial court on 18 June 2002. On 20 June 2002, one Glenn Russel L. Apura, on behalf of Atty. Eduardo S. Villena (Atty. Villena), requested for copies of the pertinent documents on petitioner's case. 20 On 25 June 2002, Atty. Villena entered his appearance as counsel for petitioner. 21Yet, petitioner only asked for a reinvestigation on 1 July 2002 or more than five days from the time petitioner learned of the filing of the information. Therefore, petitioner is deemed to have waived his right to ask for a preliminary investigation. Petitioner also questions the charge filed against him by the prosecutor. Petitioner insists that a "finger" does not constitute an object or instrument in the contemplation of RA 8353. Petitioner is mistaken. Under the present law on rape, Article 266-A of the Revised Penal Code, as amended by RA 8353, and as interpreted in People v. Soriano, 22 the insertion of one's finger into the genital of another constitutes "rape through sexual assault." Hence, the prosecutor did not err in charging petitioner with the crime of rape under Article 266-A, paragraph 2 23 of the Revised Penal Code. WHEREFORE, we DISMISS the petition. We AFFIRM the assailed Orders dated 5 August 2002 and 28 August 2002 of Judge Manuel B. Fernandez, Jr., Regional Trial Court of Las Pias City, Branch 254.
cCSHET

SO ORDERED.

SECOND DIVISION
[G.R. No. 172226. March 23, 2007.]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. HERMINIGILDO SENIERES, appellant. DECISION TINGA, J :
p

On automatic review is the Decision 1 dated 6 December 2000 of the Regional Trial Court of Baguio City, Branch 6, convicting Herminigildo Senieres of raping AAA 2 on two (2) occasions. The dispositive portion of the decision reads:
WHEREFORE, Judgment is hereby rendered as follows: 1. In Criminal Case No. 16691-R, the Court finds the accused Herm[i]nigildo Senieres guilty beyond reasonable doubt of the offense of rape as charged in the Information, defined and penalized under Section 2, Par. 1 (a) and (d) of Republic Act [No.] 8353 which amended Article 335 of the Revised Penal Code * and hereby sentences him to suffer the penalty of Reclusion Perpetua; to indemnify the complainant [AAA] the sum of P100,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency; and to pay the costs. The accused Herm[i]nigildo Senieres, being a detention prisoner, is entitled to be credited 4/5 of his preventive imprisonment in the service of his sentence in accordance with Article 29 of the Revised Penal Code. 2. In Criminal Case No. 16692-R, the Court finds the accused Herm[i]nigildo Senieres Guilty beyond reasonable doubt for (sic) the offense of rape committed on December 17, 1998 as charged in the Information, defined and penalized under Sec. 2, Par. 2 of Republic Act [No.] 8353 and hereby sentences him, applying the Indeterminate Sentence Law, to suffer imprisonment ranging from four (4) years two (2) months and one (1) day of prision correccional as Minimum to ten (10) years and one (1) day of Prision Mayor as Maximum, to indemnify the offended party [AAA] the sum of P20,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency and to pay the costs. The accused Herm[i]nigildo Senieres, being a detention prisoner, is entitled to be credited 4/5 of his preventive imprisonment in the service

of his sentence in accordance with Article 29 of the Revised Penal Code.

ETAICc

SO ORDERED.

Initiated by AAA's sworn statement, 4 accused Senieres was charged with two (2) counts of rape in the following Informations, to wit:
CRIMINAL CASE NO. 16691-R The undersigned accuses HERM[I]NIGILDO SENIERES [a.k.a.] "EMING" of the crime of RAPE DEFINED AND PENALIZED UNDER R.A. [No.] 8353, committed as follows: That on or about the 22nd day of November 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously and by means of force and intimidation lie down and have carnal knowledge of the complainant [AAA], a minor[,] 11 years of age, against her will and consent. CONTRARY TO LAW.
5

CRIMINAL CASE NO. 16692-R The undersigned accused HERM[I]NIGILDO SENIERES [a.k.a.] "EMING" of the crime of RAPE DEFINED AND PENALIZED UNDER R.A. [No.] 8353, committed as follows: That on or about the 17th day of December 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously by means of force, threat or intimidation, commit an act of sexual assault upon the person of [AAA], a minor[,] 11 years of age, by inserting his penis into the anal orifice of the latter.
SEHACI

CONTRARY TO LAW.

At his arraignment on 18 June 1999 for both cases, Senieres with the assistance of his counsel, entered a plea of not guilty to the two (2) counts of rape. 7 Joint trial on the merits of the criminal cases ensued. The prosecution presented as witnesses, the victim AAA, her aunt BBB 8 and Dr. Vladimir Villaseor, the physician who conducted an examination on AAA.

AAA testified that on the night of 22 November 1998, she fell asleep on the floor of the sala of her aunt CCC's house at T. Alonzo Street, Baguio City. 9 She awoke when she felt the presence of someone beside her. When she opened her eyes, she saw that it was Senieres, her uncle, 10 who had then started removing her shorts and underwear. She said, "No!" but Senieres threatened to harm her younger sister if she did not allow him to proceed. Next, Senieres turned her body to face him. AAA clipped together her legs to resist him but Senieres separated them using his feet. AAA shouted but Senieres covered her mouth with her hands. Senieres then inserted his penis into her vagina and made "push and pull" movements. AAA cried in pain. AAA also felt a mucous-like substance enter her vagina. After satisfying himself, Senieres repeated his threat of harm to AAA's sister and then went back to sleep at the sofa in the sala. AAA put her panty and shorts back on and went back to sleep still crying. 11 When AAA awakened the following day, Senieres was no longer around. She, however, did not report the incident to her aunt CCC or to anyone else as she was afraid that Senieres would make good his threat to harm her younger sister. 12 After the incident, AAA stayed at her godmother's house which is a few houses away. On 16 December 1998, she returned to her aunt CCC's house as she thought that Senieres no longer stayed there. 13 On 17 December 1998, while AAA was watching TV, Senieres arrived. In fright, AAA invited her male cousin DDD to go to sleep already. She and DDD slept on the floor facing each other. Again, she awoke when she felt Senieres go down to the floor next to her. Then she felt him remove her panty and shorts. 14 AAA kicked Senieres' feet but he managed to remove her shorts and panty. AAA tried to rouse DDD from sleep by elbowing him but he could not be awakened. AAA was lying on her left side, facing DDD, with her thighs bent forward and lower legs bent backwards. Next, Senieres inserted his penis into her anus. She felt a slippery substance and then Senieres pulled his penis out of her anus. He went back to sleep at the sofa. Senieres left the house the following morning. 15 Sometime after the incident, AAA left for her uncle EEE's house, in a town somewhere in Benguet, in order to be away from Senieres. 16 On 28 January 1999, her aunt BBB arrived and took AAA to another town in Benguet. 17 In April 1999, AAA reported for the first time what had happened to her aunt BBB. AAA was emboldened by the courage of a child who had reported a similar incident of sexual abuse against her father. 18 AAA and her aunt BBB then

traveled to Baguio City. On 27 April 1999, AAA, accompanied by her aunt BBB, gave her sworn statement 19 to the Baguio City Police. 20 On 28 April 1999, she was examined by Dr. Vladimir Villaseor. 21
SEHACI

Dr. Villaseor testified that he found a shallow, healed laceration located at 7 o'clock and 9 o'clock positions and a deep, healed laceration at 3 o'clock position. 22 He explained that a shallow laceration is a laceration that does not extend to the base of the hymen while a deep laceration is a laceration which extends from the periphery to the base of the hymen. He also discussed that a healed laceration is one that is more than seven (7) days old. 23 He stated that based on their number and depth, the lacerations could have only been caused by the insertion of a male genital organ into the vagina. 24 Dr. Villaseor issued a medico-legal report containing his findings. 25
ADCIca

For his part, Senieres denied the charges against him. He claimed that he could not have raped AAA on 22 November 1998 as he was in the house of a relative in San Carlos Heights, Baguio City 26 and AAA was still in Manila. 27 On 17 December 1998, he was likewise at his relative's house in San Carlos Heights, Baguio City. 28 The trial court favored AAA's version of the events and convicted Senieres of the crimes charged, ruling in this wise:
The Court cannot give credence to the assertion of the accused that he could not have raped AAA on the night of November 22, 1998 at . . . T. Alonzo Street, because she was not yet in Baguio City at that time. AAA categorically testified that she arrived in Baguio on November 7, 1998 and since then stayed at . . . T. Alonzo Street until she was raped on the night of November 22, 1998. There is no reason to doubt her testimony since, as already discussed previously, it bears the earmarks of credibility.
aSATHE

xxx xxx xxx Likewise, the Court cannot give weight to the claim of the accused that on the night of November 22, 1998[,] as well as December 17, 1998, he was at San Carlos Heights, Baguio City with his relative Mary Jane Tumbagahan and the latter's family. He failed to present his alleged relative Mary Jane or any other member of the latter's family or any other person to corroborate his claim. It should not be difficult for him to secure their presence in court if indeed

he was with his relatives on those nights or that he spent those nights at San Carlos Heights. Besides, granting for the sake of argument that he was at San Carlos Heights on the nights of November 22 and December 17, 1998, it is not impossible for him to be at T. Alonzo at the precise time the sexual acts were committed. San Carlos Heights is just a jeepney ride away from T. Alonzo Street as both places are within Baguio City. Such that if accused travels from San Carlos Heights to T. Alonzo Street, or vi[c]e versa, it would only take him 20 minutes, more or less. 29

The judgment of conviction was elevated to the Court for automatic review. In a Resolution 30 dated 27 September 2004 of the Court in G.R. Nos. 14728687, 31 the cases were transferred to the Court of Appeals pursuant to the Court's ruling in People v. Mateo. 32 In a Decision 33 dated 20 December 2005, the Court of Appeals affirmed the judgment of conviction. The appellate court held that AAA's story bears the marks of a credible testimony coming from a truthful witness and, therefore, must be given full faith and credit. AAA described in a positive, natural, sincere and spontaneous manner how she was forcibly ravished by Senieres on 22 November and 17 December 1998. The appellate court noted that AAA could not have narrated her ordeal so convincingly if it was not true. Moreover, medical evidence on record corroborates AAA's testimony. 34

The Court of Appeals also held that Senieres defenses of denial and alibi have no leg to stand on. Senieres failed to present convincing proof that he was present at some other place about the time of the alleged crime and that he was at such other place for so long a time that it was impossible for him to be at the scene of the crime when the crime was committed. Senieres likewise failed to substantiate his claim that AAA was not in Baguio on 22 November 1998 and that she was neither at T. Alonzo Street on 17 December 1998. 35 The Court of Appeals, however, modified the award of moral damages to P50,000.00 for each count of rape and imposed an additional amount of P50,000.00 as civil indemnity for each count of rape. 36 In the Court's Resolution 37 dated 3 July 2006, the parties were required to submit their respective supplemental briefs. Senieres, through the Public Attorney's Office, manifested 38 that he will adopt all the issues and discussion in

his appellant's brief 39 dated 16 April 2002. The Office of the Solicitor General likewise manifested 40 that it will adopt the discussions in its appellee's brief 41 dated 4 September 2002 as its supplemental brief. The case is again before us for final disposition. After a careful and meticulous review of the records of the case, the Court finds no reason to overturn the findings of fact and conclusions commonly reached by the trial court and the Court of Appeals. The Court affirms Senieres' conviction. Senieres contends that no rape occurred on 22 November 1998 as AAA's injuries could have been sustained even before said date. He also maintains that AAA's injuries could have been caused only by a finger as it was not established that what was inserted inside AAA's vagina was Senieres' penis. If at all, he claims he should only be held liable for the crime of acts of lasciviousness. Senieres' contentions are bereft of merit. First, it should be reiterated that in a rape case, what is most important is the credible testimony of the victim. A medical examination and a medical certificate are merely corroborative and are not indispensable to a prosecution for rape. The court may convict the accused based solely on the victim's credible, natural and convincing testimony. 42 In this case, both the courts are in agreement that AAA was candid, natural, forthright and unwavering in her testimony that Senieres raped her on two occasions. AAA's credibility is strengthened by the absence of evidence showing that she had any ill-motive in testifying against Senieres. Secondly, Dr. Villaseor's report revealed that AAA suffered shallow, healed lacerations at 7 and 9 o'clock positions and a deep healed laceration at 3 o'clock position and that she was in a non-virgin state. It should be noted that the examination was made in April 1999, months after the incidents of rape occurred in November and December 1998. The presence of such healed lacerations is consistent with and corroborative of AAA's testimony that she had indeed been raped by Senieres months before the date of the examination. Hymenal lacerations, whether healed or fresh, are the best evidence of forcible defloration. 43 And when the consistent and forthright testimony of a rape victim is consistent with medical findings, there is sufficient basis to warrant a conclusion that the essential requisites of carnal knowledge have been established. 44

Thirdly, AAA categorically said that Senieres inserted his penis into her vagina and that she felt pain when he did. 45 Dr. Villaseor's testimony supports AAA's assertion, to wit:
PROS. CENTENO: Q Now, going back to the 7:00 o'clock, 9:00 o'clock and 3:00 o'clock deep healed lacerations which you found on the hymen of the victim, Doctor, what could have been the possible cause of these 7:00 o'clock, 9:00 o'clock and 3:00 o'clock lacerations? A This is caused by [the] insertion of a foreign object or instrument, sir. Q Now, what would be the possible foreign object or instrument which could have been inserted in the vagina of the victim which could have caused these kinds of laceration? A Possible instruments like a fully erect male genital organ, finger, or any blunt object that is inserted into the genital organ, sir. Q Now, in your examination as a medico-legal officer of the Philippine National Police, Doctor, what would be the most possible foreign object that would cause [these kinds] of lacerations? A The [sic] fully erect male genital organ, sir.
HCATEa

Q Now, why do you say that the most possible foreign object which could have cause [these kinds] of lacerations would be a fully erect male genital organ? A Considering, sir, that there were three lacerations and there was a laceration that was considered deep, that may be caused only by the insertion of a male organ, sir. 46

AAA likewise clearly testified that Senieres inserted his penis into her anus, to wit:
Q And after your uncle Eming was able to remove your shorts and panty, what happened next? A Itudtodok na diay buto na diay ubet ko (He was inserting his penis into my anus). 47

It may be well to point out that the trial court found AAA's testimony to be truthful, viz.:
There is no reason to doubt [AAA's] testimony. She was candid, natural, forthright and unwavering. In short, her testimony bears the earmarks of credibility. Further strengthening [AAA's] credibility is her lack of ulterior motive against the accused and the absolute absence of evidence that even remotely suggested that she could have been actuated by ill motive. It is settled that where there is no evidence indicating that the principal witness for the prosecution was actuated by improper motive, the presumption is that she was not so actuated and her testimony is entitled to full faith and credit. 48

It is a settled principle that the trial court's evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses' demeanor and deportment on the stand, and the manner in which they gave their testimony. Unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment on credibility must be respected. 49 AAA's alleged act of casually putting on her underwear after the rape and her failure to immediately report the two (2) incidents of rape do not vitiate the credibility of her account. The Court has repeatedly observed that no standard form of behavior can be anticipated of a rape victim following her defilement, particularly by a child who could not be expected to fully comprehend the ways of an adult. People react differently to emotional stress and rape victims are no different from them. 50 Moreover, long silence and delay in reporting the crime of rape have not always been construed as an indication of a false accusation. The principle applies with greater force where, as in this case, AAA was only 11 years old and was, in all likelihood, susceptible to intimidation and threats of physical harm especially from a close relative. 51 Against the overwhelming evidence of the prosecution, Senieres merely interposed the defenses of denial and alibi. He claimed that on both occasions, he was somewhere else and could not have been at the scene of the crime.
HICcSA

Having been positively and unmistakably identified by AAA as her rapist, Senieres' weak defenses of denial and alibi cannot prosper. The settled jurisprudence is that categorical and consistent positive identification, absent any showing of ill-motive on the part of the eyewitness testifying thereon, prevails over the defenses of denial and alibi which, if not substantiated by clear and convincing proof, as in the cases at bar, constitute self-serving evidence undeserving of weight in law. 52 Alibi, like denial, is also inherently weak and easily fabricated. For this defense to justify an acquittal, the following must be established: the presence of the appellant in another place at the time of the commission of the offense and the physical impossibility for him to be at the scene of the crime. These requisites have not been met. 53 Senieres claimed to be at a relative's house on both occasions of rape. Considering that this relative's house is a jeepney ride away from the house where the two (2) incidents of rape were committed, it would have still been physically possible for him to be present at the scene of the crimes at the time of their consummation. 54 In sum, the guilt of Senieres was proven beyond reasonable doubt. The Court therefore affirms his conviction for two (2) counts of rape in Criminal Case Nos. 16691-R and 16692-R. With respect to Senieres' civil liability, the Court affirms the award of P50,000.00 as civil indemnity and P50,000.00 as moral damages in favor of AAA for being a victim of simple statutory rape. 55 However, the award of P50,000.00 civil indemnity and P50,000.00 moral damages adjudged by the appellate court for the crime of rape by sexual assault are excessive and should be reduced. In line with prevailing jurisprudence, AAA is entitled to an award of P25,000.00 civil indemnity and P25,000.00 moral damages for being a victim of rape by sexual assault. 56 WHEREFORE, the Decision dated 20 December 2005 of the Court of Appeals in C.A.-G.R. CR-H.C. No. 01448 is AFFIRMED with MODIFICATION. In Criminal Case No. 16691-R, appellant HERMINIGILDO SENIERES is sentenced to suffer the penalty of reclusion perpetua and to indemnify AAA the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages. In Criminal Case No. 16692-R, appellant HERMINIGILDO SENIERES is sentenced to suffer imprisonment ranging from four (4) years two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum; and to pay AAA the amounts of P25,000.00 as civil indemnity and P25,000.00 as moral damages.

SO ORDERED.

FIRST DIVISION
[G.R. No. 147913. January 31, 2007.] CLEMENT JOHN FERDINAND M. NAVARRETE, petitioner, vs. PEOPLE OF THE PHILIPPINES,respondent. DECISION CORONA, J :
p

This petition for review on certiorari 1 assails the September 29, 2000 decision 2 and May 4, 2001 resolution 3 of the Court of Appeals (CA) in CA-G.R. CR No. 20531 which affirmed the January 16, 1997 decision of the Regional Trial Court (RTC), Branch 171, Valenzuela, 4 Metro Manila in Criminal Case No. 5302V-96. 5 Petitioner Clement John Ferdinand M. Navarrete was charged with the crime of statutory rape of BBB 6 under the following information:
That on or about October 30, 1995 in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, did then and there [willfully], unlawfully and feloniously have sexual intercourse with one [BBB], age[d] 5 years old. CONTRARY TO LAW.
7

On arraignment, petitioner pleaded not guilty. The facts show that BBB, who was at that time five years old, and petitioner were neighbors, their houses being adjacent to each other. 8 On October 30, 1995, at around past 9:00 in the evening, BBB went to petitioner's house to watch television, which was something she often did. 9 Only petitioner and BBB were there that night. 10 BBB testified that it was on this occasion that petitioner sexually abused her, "placed his penis [in her] vagina" twice, poked her vagina with a "stick with cotton" 11 and boxed her on the right side of her eye. 12 Then,

petitioner brought her to the comfort room and pointed a knife to her throat. 13 Afterwards, she and petitioner watched a pornographic movie 14together. 15 AAA, BBB's mother, testified that around 10:30 p.m., BBB went out of petitioner's house. While trembling and crying, BBB embraced her mother and told her that "Kuya Ferdie sinundot ako." 16 The next day, on October 31, 1995, Dr. Noel Minay, medico-legal officer of the National Bureau of Investigation, examined BBB. He found that her maidenhead was short, intact and had a narrow opening at 0.3 cm. in diameter. He concluded that these findings precluded complete penetration by an average-sized Filipino male organ in full erection. 17 Testifying in his own behalf, petitioner denied the accusation against him and claimed that AAA merely concocted the charge against him. He alleged that she had ill feelings against his mother who she thought had something to do with the separation of her (AAA's) son from the Philippine Postal Corporation. He also posited that she resented the Navarretes' refusal to allow her to place a "jumper" on their electrical connection. 18 In a decision dated January 16, 1997, the RTC absolved petitioner of statutory rape as there was no clear and positive proof of the entry of petitioner's penis into the labia of the victim's vagina. However, it convicted petitioner for acts of lasciviousness under Article 336 of the Revised Penal Code (RPC) in relation to Section 5 (b), Article III of RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act):
WHEREFORE, [petitioner] Clement John Ferdinand Navarrete is sentenced to suffer an indeterminate imprisonment of TWELVE (12) YEARS and ONE (1) DAY of RECLUSION TEMPORAL, as minimum to [SIXTEEN] (16) YEARS of RECLUSION TEMPORAL, as maximum with the accessory penalties prescribed by the law and to pay the costs.
CHEDAc

The accused is hereby ordered to indemnify the victim the amount of P20,000.00 as moral damages and the amount of P10,000.00 pursuant to Section 31 of the [Act]. 19

On appeal, the CA affirmed the decision of the RTC. Thus, this petition. Petitioner asserts that he cannot be convicted of acts of lasciviousness in relation to Section 5 (b), Article III of RA 7610, a crime not specifically alleged in the

information which charged him with statutory rape. Otherwise, his constitutional right to be informed of the nature and cause of the accusation against him would be violated. He likewise contends that his guilt for the said offense was not proven beyond reasonable doubt. There is no merit in the petition. The Constitution mandates that the accused, in all criminal prosecutions, shall enjoy the right to be informed of the nature and cause of the accusation against him. 20 From this fundamental precept proceeds the rule that the accused may be convicted only of the crime with which he is charged. 21 An exception to this rule is the rule on variance in Section 4, Rule 120 of the Rules of Court: 22
Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in that which is proved.

Petitioner was found guilty of violating Article 336 of the RPC in relation to Section 5 (b), Article III of RA 7610:
Sec. 5.Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx (b)Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, [or] the [RPC], for rape or lascivious conduct as the case may be: Provided, That the

penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.
CEASaT

Under this provision, when the victim is under 12 years old, the accused shall be prosecuted under either Article 335 (for rape) or Article 336 (for acts of lasciviousness) of the RPC. Accordingly, although an accused is charged in the information with the crime of statutory rape (i.e., carnal knowledge of a woman under twelve years of age ), 23 the offender can be convicted of the lesser crime of acts of lasciviousness, which is included in rape. 24 The case of People v. Bon 25 is squarely in point. In that case, the accused was charged with the rape of a six-year old girl. The Court ruled that rape was not proved beyond reasonable doubt. We, however, held that the accused was "liable for the crime of acts of lasciviousness, as defined and penalized under Article 336 of the RPC in relation to RA 7610" 26since all the elements of this offense were established. Petitioner cannot therefore successfully argue that his constitutionally protected right to be informed of the nature and cause of the accusation against him was violated when he was found guilty under Section 5 of RA 7610. Petitioner next contends that his guilt was not proven beyond reasonable doubt. We disagree. In Amployo v. People, 27 we declared that pursuant to Section 5 (b) of RA 7610, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of RA 7610. 28 The elements of the crime of acts of lasciviousness under Article 336 of the RPC are the following: (1)The offender commits any act of lasciviousness or lewdness; (2)It is done under any of the following circumstances: a.By using force or intimidation; or b.When the offended party is deprived of reason or otherwise unconscious; or

c.When the offended party is under 12 years of age; and (3)The offended party is another person of either sex. (emphasis supplied) 29 The general rule is that the factual findings of the trial court deserve a high degree of respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misapprehended or misapplied some facts or circumstances of weight and substance which can alter the result of the case. 30 We uphold the findings of fact of the RTC, as affirmed by the CA. The RTC and CA did not find evidence of the entrance of petitioner's penis into the labia of the victim's female organ. Nevertheless, BBB's testimony established that petitioner committed lascivious acts on her:
BY ATTY. PRINCIPE: (to witness) Q:[BBB], do you know accused Ferdinand Navarette? A:Yes, sir. Q:Also named Clement John Ferdinand Navarette? A:Yes, sir. Q:Why do you know Clement John Ferdinand Navarette? A:Because he is the one who did something to me. Q:What do you mean by "umano"? A:He placed his penis into my vagina. (pekpek) Q:How many times? A:Two times, sir. Q:Then he placed his penis to your vagina, what did you feel? A:I felt pain, sir.
CEaDAc

xxx xxx xxx

Q:What else happened after Ferdinand Navarette put his penis twice on your vagina which you told the Court you felt pain? A:He locked me inside the [comfort room] and he took a knife. Q:Now, when you were inside the Comfort Room and you told the Court that he got a knife, what happened next, if any? A:He stabbed me. Q:Where? A:(Witness pointing the throat.) Q:And when you said "sinaksak" on your throat you mean accused only pointed [to] your throat? xxx xxx xxx

COURT: [All right], witness may answer. (Witness pointing to her throat.) Q:And what is the meaning that she wants to convey? ATTY. TENEZA: Witness holding her throat. ATTY. PRINCIPE: Pointing. Very clear. Q:When you pointed your throat, what do you want to convey [with] the word stab? ATTY. PRINCIPE: A.Sinaksak. That is, Your Honor. Because this is her interpretation of pointing the knife. xxx xxx xxx

ATTY. PRINCIPE: After the accused locked you in the [comfort room] with the knife, according to you, what happened next, if any? xxx xxx xxx Witness: A:Then I went [out] of the [comfort room] when I heard my mother calling me. ATTY. PRINCIPE: (to the witness) Q:And where was your mother at that time? A:She was outside and waiting for my Kuya [XXX]. Q:When you were called by your mother, according to you, did you approach your mother when hearing that she was calling you? ATTY. TENEZA: It was already answered, Your Honor. ATTY. PRINCIPE : No. COURT: Witness may answer. ATTY. PRINCIPE: (to the witness) Q:And what did you tell your mother, if any? A:I embraced her. Q:After embracing your mother, did you tell [her] something if any? A:She [asked] me [why] I was still watching T.V. when the people of the house were already sleeping. Q:What was your reply to your mama?
aDACcH

A:Because I used to watch T.V. [in] that place. Q:Did you report to your mother what Ferdinand Navarette did to you? A:Yes, sir. Q:How did you tell your mother? A.I told my mama "Binastos ako ni Ferdie." Q:How did you relate that you were "binastos ni Ferdie"? A:I told my mama: Mama, Ferdie [placed] his penis on my vagina and then he placed a stick with cotton on my vagina and then he boxed me, on my right side of my eye. Q:How many times were you boxed by Ferdie, the accused? A:Two (2) times, sir.
31

The foregoing shows that all the elements of acts of lasciviousness were proved. That BBB was less than twelve years old at the time of the commission of the offense was not disputed. The prosecution established that petitioner intentionally "placed his penis" in BBB's vagina but without any indication that he was able to penetrate her:
Victim [BBB] testified that the accused "placed his penis into my vagina" and "[placed] a stick with cotton [in] my vagina" but the [specific] part of her vagina where the penis was placed was not indicated. xxx xxx xxx The Court cannot [assume] without doing violence to the precious jural yardstick but the prosecution must prove and present clear, positive and conclusive evidence of the act complained of particularly that the penis of the accused gained entrance [in] the labia majora of the organ of the victim. Not even in the medical findings and testimony of the NBI Medico-Legal Officer Dr. Noel Minay who conducted physical/genital examinations on the victim could [we] find support to justify an inference that there was entrance of the male organ of the accused within the labia of pudendum. 32

Both lower courts also found that petitioner poked victim's vagina with a stick with cotton and watched a pornographic movie with her. 33 These acts are undoubtedly acts of lasciviousness or lewdness. 34 The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows: 1.The accused commits the act of sexual intercourse or lascivious conduct.
TcSaHC

2.The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3.The child, whether male or female, is below 18 years of age. (Emphasis supplied) 35 "Lascivious conduct" is defined under Section 2 (h) of the rules and regulations 36 of RA 7610 as:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

The aforestated acts of petitioner undeniably amounted to lascivious conduct under this law. Petitioner insists that Section 5 (b) of RA 7610 refers only to those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution and argues that this does not apply in this case since the victim is not a child exploited in prostitution. 37 Petitioner's argument is untenable. In People v. Larin (and reiterated in several subsequent cases), 38 we emphasized that the law covers not only a situation in which a child is abused for profit but also one in which a child, through coercion or intimidation, engages in any lascivious conduct. 39 The very title of Section 5, Article III (Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a child subjected to other sexual abuse. A child is deemed subjected to "other sexual abuse" when

he or she indulges in lascivious conduct under the coercion or influence of any adult. 40 Here, BBB was sexually abused because she was coerced or intimidated by petitioner (who poked her neck with a knife) 41 to indulge in lascivious conduct. Hence, the prosecution was able to prove beyond reasonable doubt that petitioner committed acts of sexual abuse against BBB. The RTC found BBB's testimony to be clear, candid, and straightforward. Her testimony was worthy of belief since she was young and had no ill-motive to falsely testify and impute a serious crime against the accused. 42 In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. 43 Moreover, courts are inclined to lend credence to the testimony of children of tender years. The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint. 44 In so testifying, she could have only been impelled to tell the truth. 45 The trial court's evaluation of the testimonies of witnesses is given great respect by the appellate court in the absence of proof that it was arrived at arbitrarily or that the trial court overlooked material facts. 46 The rationale behind this rule is that the credibility of a witness can best be determined by the trial court since it has the direct opportunity to observe the candor and demeanor of the witnesses at the witness stand and detect if they are telling the truth or not. 47 We will not interfere with the trial court's assessment of the credibility of witnesses.
aSEHDA

In the face of the serious accusation against him, petitioner could only interpose denial as defense. Denial is an inherently weak defense and cannot prevail over the positive and categorical identification provided by the complainant. Denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law. 48As between the positive declaration of the prosecution witness and the negative statement of the accused, the former deserves more credence. 49 The lower courts also correctly disbelieved the corroborating testimonies of petitioner's aunt and sister. 50 Petitioner asserts that the RTC should not have given evidentiary weight to the inconsistent and contradictory testimonies of the prosecution witnesses. He urges this Court to apply the Latin maxim falsus in unus, falsus in omnibus(false in part, false in everything).

We disagree. We have stated that:

[T]he maxim or rule "falsus in [unus], falsus in omnibus" does not lay down a categorical test of credibility. It is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent mistakes. Moreover, the rule is not mandatory but merely sanctions a disregard of the testimony of a witness if the circumstances so warrant. To completely disregard all the testimony of a witness on this ground, his testimony must have been false as to a material point, and the witness must have a conscious and deliberate intention to falsify a material point. 51

Furthermore, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. Instead of eroding the effectiveness of the evidence, such imperfections and discrepancies in the testimony can in fact be considered as signs of veracity. 52 Aside from the fact that it is very difficult to give a mechanical and accurate account of a traumatic and horrifying experience, 53 the victim here was a mere five-year old girl when she was put on the witness stand. We should not expect a five-year old child to explain with exact precision the nature of the acts done to her, given her naivet and still undeveloped vocabulary and command of language. 54 Despite this limitation, however, the victim never wavered in her claim that petitioner molested her. In sum, we find petitioner guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 (b), Article III of RA 7610. WHEREFORE, the petition is hereby DENIED. The September 29, 2000 decision of the Court of Appeals affirming the decision of the Regional Trial Court of Valenzuela, Branch 171, in Criminal Case No. 5302-V-96 finding petitioner guilty beyond reasonable doubt of acts of lasciviousness and sentencing him to suffer imprisonment of twelve years and one day of reclusion temporal, as minimum, to sixteen years of reclusion temporal, as maximum, as well as to pay P20,000 moral damages and P10,000 fine is AFFIRMED.

Costs against petitioner. SO ORDERED.

SECOND DIVISION
[G.R. No. 169143. February 2, 2007.] [Formerly G.R. No. 138328] PEOPLE OF THE PHILIPPINES, appellee, vs. SIMPLICIO DELANTAR, appellant. DECISION TINGA, J :
p

The forfeiture of the right to live free in society is the due requital for peddling a child to sexual servitude. We begin with the antecedents. On 27 August 1996, an information for violation of Section 5, Article III of Republic Act (R.A.) No. 7610 1 was filed against appellant Simplicio Delantar y Redondo. Docketed as Criminal Case No. 96-9175 2 of the Regional Trial Court (RTC) of Pasay City, the information was amended on 3 September 1996. 3 The accusatory portion of the Amended Information reads:
That sometime and during the period from 1994 to August 1996, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, SIMPLICIO DELANTAR Y REDONDO, through coercion and influence, did then and there wilfully, unlawfully and feloniously promote, facilitate and induce [AAA], 4 a female child below 12 years of age, to indulge in sexual intercourse and lascivious conduct for money, profit and other consideration. Contrary to [l]aw.
5

On 4 September 1996, appellant, assisted by counsel de parte, entered a plea of not guilty and informed the court that he did not want a pre-trial. 6 An attempt to quash the information was made but the same proved futile. 7 Thereafter, trial proceeded in due course.

The prosecution presented the following as witnesses: (1) AAA, 8 the complainant; (2) Dr. Emmanuel Aranas 9 of the PNP Crime Laboratory; and (3) Carolina Buan 10 of the Philippine Long Distance Telephone Co. On 31 January 1997, the prosecution submitted its Formal Offer of Evidence. 11 Trial thereafter continued with the defense presenting the following as witnesses: (1) Simplicio Delantar; 12 (2) Angelito Entruzo; 13 and (3) Eduardo Juarez, Jr. 14 On 20 August 1998, the defense rested its case. On 25 February 1999, the RTC-Pasay City, Branch 109, rendered a Decision, 15 finding appellant guilty beyond reasonable doubt of two counts of violation of Section 5 (a), paragraphs 1, 4 and 5 of Article III of R.A. No. 7610. The trial court arrived at the following principal findings and conclusions, thus:
From all the foregoing, the Court opines that the prosecution has proven the guilt of the accused Simplicio Delantar y Redondo beyond reasonable doubt when he delivered his daughter [AAA] to an Arab national by the name of Mr. Hammond from their house at 2165-A P. Burgos St., Pasay City sometime in 1994 selling her in prostitution to the said [A]rab who committed acts of lasciviousness on her person by kissing her on her lips, her breast, her private parts and even rubbing his penis against her private parts which is a clear violation of Section 5(a), paragraph 1, 4, and 5 [of] Article III of R.A. [No.] 7610 and hereby sentences him ofReclusion Perpetua and to pay civil liability to the victim in the amount of P60,000.00.
DHSaCA

Likewise, the Court finds accused guilty beyond reasonable doubt for violation of Section 5(a) paragraph 1, 4, and 5 of Article III of R.A. [No.] 7610 when the accused Simplicio Delantar pimped and delivered the complainant, an eleven (11) year old minor to Congressman Romeo Jalosjos of the First District of Zamboanga del Norte at the Ritz Tower in Makati where the said Congressman for eight (8) times committed acts of lasciviousness on her person when he kissed her on her lips, private organ and even raped her. That all these times, the accused brought his child from their residence at 2165-A P. Burgos St., Pasay City and [the Court] hereby sentences him to Reclusion Perpetua and to pay the victim civil liability in the amount of P60,000.00. SO ORDERED.
16

Appellant interposed an appeal with this Court. After submission of the parties' briefs, on 20 September 2004, this Court through the Second Division then transferred the appeal to the Court of Appeals for appropriate action and

disposition.17 On 31 May 2005, the Court of Appeals rendered a Decision 18 affirming with modification the trial court's Decision. The appellate court ruled in the dispositive portion, thus:
WHEREFORE, the appealed decision, finding appellant Simplicio Delantar guilty beyond reasonable doubt of Violation of Section 5(a), paragraph[s] 1, 4 and 5, Article III of R.A. No. 7610, for one count only, isAFFIRMED with the MODIFICATION that he is also sentenced to pay complainant [AAA] the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages. Costs against appellant. SO ORDERED.
19
DEacIT

On 23 June 2005, appellant, through counsel, filed a Notice of Appeal from the Decision of the Court of Appeals to this Court. 20 On 21 July 2005, the Court of Appeals gave due course to the Notice of Appeal and elevated the records of the case to this Court for purposes of the appeal. 21 In his Brief, court:
22

appellant assigns the following errors committed by the trial

I

THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF TWO (2) VIOLATIONS OF SECTION 5, ARTICLE III, R.A. [NO.] 7610 DESPITE THE FACT THAT ONLY A SINGLE INFORMATION WAS FILED BY THE 2ND ASSISTANT CITY PROSECUTOR OF PASAY CITY. III THE TRIAL COURT ERRED IN IMPOSING THE PENALTY FOR THE CRIME CHARGED IN ITS MAXIMUM PERIOD (RECLUSION PERPETUA) WHEN THERE IS NO SHOWING IN ITS DECISION [OF] THE ATTENDANCE OF A QUALIFYING CIRCUMSTANCE WHICH WOULD WARRANT THE IMPOSITION OF THE MAXIMUM PENALTY. 23

Of the issues raised by appellant in his brief, we only have to resolve the first and the third issues since the Court of Appeals has already upheld the second contention which is that he should only be convicted of one violation 24 and also since a reversal of the ruling would constitute double jeopardy. In any event, we fully agree with the appellate court's adjudication. 25 Appellant stands charged of violating Section 5, Article III of R.A. No. 7610, which provides:
ARTICLE III. CHILD PROSTITUTION AND OTHER SEXUAL ABUSE SEC. 5.Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
ITcCSA

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a)Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1)Acting as a procurer of a child prostitute; (2)Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3)Taking advantage of influence or relationship to procure a child as a prostitute; (4)Threatening or using violence towards a child to engage him as a prostitute; or (5)Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to engage such child in prostitution. (b)Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph

3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporalin its medium period; and (c)Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.

In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. 26 There is no doubt, drawing from the evidence, that AAA was a child who was exploited in prostitution as defined in Section 5, Article III quoted above. The law punishes not only the person who commits the acts of sexual intercourse or lascivious conduct with the child but also those who engage in or promote, facilitate or induce child prostitution. Appellant is one such person.
IAEcCa

The testimony of AAA shows that appellant procured her as a child prostitute for at least two clients: the first, an Arab national named Mr. Hammond and the second, then Congressman Romeo Jalosjos. AAA testified that she was brought to the first client at least eleven (11) times between the period 1994 to June 1996.27 On each of these occasions, appellant and AAA would go to Ralph Anthony Suites in Manila where the client stayed. Appellant would tell AAA that they had to go to the client because they needed to pay some obligations, 28 they had to settle something, 29 they had to pay the electric bill, 30 or they had to ask for money for AAA's tuition fees. 31 Upon their arrival at Ralph Anthony Suites, appellant would talk to the client for a few minutes and then leave AAA alone with the client. Money was usually given by the client to appellant who would leave on the pretext of buying something from Robinsons, a nearby mall. When he returned, usually after two (2) to four (4) hours, appellant would have something for AAA such as food and clothes.

Once left alone with AAA, the client would perform lascivious acts on AAA. With the sordid details spread all over the transcript of AAA's testimony as she gave it before the trial court, the recurrent salient points of her harrowing experience revolved around the client's kissing her, touching her breasts, embracing her, and inserting his finger in her private parts. 32 On one occasion, the client even tried to insert his penis inside AAA's vagina but the latter pleaded for him not to. The client thereafter rubbed his penis on AAA's vagina. On the same occasion, the client made AAA sit on him near his groin while his penis was fully erect. The client then made pumping motions while his organ was touching AAA's vagina until "his penis got wet." 33 After their first visit to the client, AAA told appellant that she did not want to go back because the client was "bastos." Appellant promised her that they would no longer go back but the promise was broken as they went back a few more times. 34 AAA continued to complain to appellant about the acts committed on her by the first client but appellant would dismiss the same saying that if the client's private part is not inserted in AAA's private part, there is nothing wrong about it, 35 or that since there was no penetration, there was nothing wrong about it. 36 Sometime in June 1996, AAA told appellant that she did not want to go to the client anymore. On that day, AAA and appellant went to Harrison Plaza where appellant instructed AAA to call the client and tell the latter that if he would not give them P5000, they would not go there anymore. AAA complied and told the client exactly what appellant had told her. The client responded by saying that he would only give them P5,000.00 if AAA would have sexual intercourse with him. They did not go to this client anymore. 37 Appellant thereafter started to bring AAA to the second client. As with the first client, appellant would tell AAA that they had to go to the second client because they had obligations to pay such as the telephone bill, electric bill, rent, and tuition fees. 38 During each of these visits, the client would give AAA money ranging from P2,000.00 to P10,000.00. 39The details of what transpired when AAA was left alone with the second client were vividly recounted in People v. Jalosjos, 40 where the second client was convicted of two (2) counts of rape and six (6) counts of acts of lasciviousness, all committed against AAA on various dates. In the case, the Court found that it was appellant who brought AAA to said client. The Court in that case even referred to appellant as the second client's "suking bugaw." 41

From her testimony, it could easily be gleaned that AAA did not consent to the acts of lasciviousness and the sexual intercourse. After their initial visit to the first client, AAA pointedly told appellant that she did not want to go back because the client was "bastos" but appellant did not mind this and continued to bring AAA to the first client still. 42AAA persisted in complaining but appellant would dismiss the remonstration, saying that if the client's private parts are not inserted in AAA's private parts, there is nothing wrong about it, 43 or that since there was no penetration, there was nothing wrong about it. 44 Appellant succeeded in infusing AAA with intense fear and awe of him. She was afraid that appellant might send her away if she did not obey him. 45 She was scared of him also because when he got angry, he would pull her and her brother's hair, whip them very hard, slap them, hit them on the upper arm with a hanger, box them on the arms, bite them or even make them kneel on salt with outstretched hands. 46 Appellant even hit AAA with the telephone apparatus a number of times, the last time was on 15 August 1996, the day before she ran away to escape, and only because she had forgotten to call the second client. 47 It was this dread of appellant that pushed AAA to still go with him to the clients even if she did not want what was being done to her by whoever was the client once she was left alone with him.
cSTDIC

Further, appellant instilled the feeling of guilt and helplessness in AAA by constantly saying that they had to pay some obligations, 48 they had to settle something, 49 they had to pay the electric bill, 50 or they had to ask for money for AAA's tuition fees. 51 Verily, it was against AAA's will and consent to see the two clients. But even if AAA had in fact consented, appellant may still be prosecuted for child prostitution under Section 5, Article III of R.A. No. 7610 because the child's consent or lack of it is not an element of the offense. As held by this Court in People v. Larin, 52 a child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. 53 If AAA was not coerced into child prostitution under (b) above, she definitely was influenced by appellant to enter into said activity. As the person who had raised and taken care of AAA, appellant had moral ascendancy over AAA. This moral ascendancy coupled with AAA's fear and awe of appellant and her exposure to the world of prostitution at the early age of five had exerted a dominating influence on her being.

Further, AAA was doing it so that they could have money to meet their several needs, including her own tuition fees. This engendered in AAA sufficient "consideration" under (a) above to engage or agree to be exploited in prostitution because after every encounter with the clients, AAA would receive either money (ranging from P2,000.00 to P10,000.00) or food and clothing. Aside from the testimony of AAA, the record is replete with evidence of appellant's liability beyond reasonable doubt. The testimony of Dr. Emmanuel L. Aranas, Medico Legal Officer of the PNP Crime Laboratory, who conducted a medical examination on AAA on 23 August 1996, as well as the Medico Legal Report 54 that he prepared showed that, at the time of physical examination, AAA was in a non-virgin state physically and that her hymen had a shallow healed laceration at 3 o'clock position and a deep healed laceration at 8 o'clock position. Dr. Aranas testified that the lacerations could be caused by the entry either of a finger or an erect male organ a week or more prior to the date of the examination. 55 This testimony proves that AAA was subjected either to lascivious conduct or sexual intercourse before the medical examination.
aDcHIS

Witness Carolina Buan, for her part, testified that several calls were made from appellant's phone to the second client.56 Exhibits I to I-15-A and J to J-20, as well as appellant's own admission that he was the subscriber of telephone number 831-2423 57 and that he is the "S. Delantar" indicated in the telephone bill, 58 establish a connection between appellant and the second client. This connection in turn forged the regularity which characterized the communication between the two, indeed the situation that normally obtains between a regular client and a "suking bugaw." Appellant, in his brief, does not deny that he brought AAA to the clients. 59 He, however, attempts to exculpate himself by stating that he did not coerce or influence AAA to go to the two clients to be exploited in prostitution. 60 Appellant further claims that there is no showing that he made promises to AAA either by assuring her that he would give her money or anything to convince her to go with him to the clients. He even seeks to discredit AAA for not attempting to object to be brought to the first client despite her previous experience in several encounters with him. This absence of any objection on the part of AAA, so appellant insists, is proof that she was brought to the client of her own free will, and at the same time militates against any finding that appellant had coerced or influenced AAA to go to the client. 61 Also, according to appellant, AAA herself admitted she had already known, by their second visit, that she was being pimped to the first client. 62 Appellant likewise dismisses AAA's fear that he

would send her away should she refuse to go to the clients as a mere conclusion or presumption from AAA's end because at no time did appellant actually tell her to go away. 63 In the same vein, AAA's fear that appellant would get angry if she refused to go with him to the clients is merely imaginary or conjectural. 64 Appellant even cites excerpts from AAA's testimony to the effect that he only laid hands on AAA only for the purpose of disciplining her. 65 Appellant's testimony itself contains an admission that he had indeed brought AAA to the two clients. He admitted that even in his presence, questions about AAA's pretty legs and breast size were propounded. 66 Certainly, he cannot deny knowledge that the persons who propounded the questions had lewd designs on AAA. These are questions laced with lecherousness and drenched in perversity especially when asked of a child. Worse, after such questions were propounded, appellant left AAA alone with the clients who in the first place had inquired about AAA's legs and breasts. Appellant even admitted that in one instance the person who shot the questions to him even placed his hands on the breasts of AAA. 67 Appellant claims that he was promoting AAA's prospective career as an actress. Appellant's clear intention to pimp or promote AAA as a child prostitute to the second client cannot be concealed in the guise of a move to help AAA to realize her ambition to become an actress. AAA's acting skills may not be measured or determined by a picture of her in a bikini. 68 There is no profound connection between acting skills and nudity.
HECaTD

Appellant's recourse to the testimony of the other two witnesses is likewise vain and futile. Angelito Entruzo testified that after appellant had adopted AAA, he took good care of her by providing for her needs such as food, clothing, shelter and education. 69 This testimony, while making appellant look benevolent, has actually worked to his detriment because it further shows his dark side as a person on whom a child had depended but who abused the situation of dependency. Ed Juares, Jr., on the other hand, merely testified that appellant had brought AAA to him to make her an actress. The claim does not rule out the finding that appellant had engaged in child prostitution. We reject appellant's avowals of innocence. We affirm the verdict of guilt. Doubtlessly, appellant had repeatedly pandered AAA to two clients for sexual gratification. He procured paying customers for her sexual services. The acts done on AAA by the two clients ranged from "lascivious conduct" defined under the Implementing Rules and Regulation of R.A. No. 7610, as "the intentional

touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person," and statutory rape, under Art. 335, paragraph 3 of the Revised Penal Code, as amended by R.A. No. 7659. Appellant's violation of Sec. 5, Art. III of R.A. No. 7610 is as clear as day. The provision penalizes anyone who engages in or promotes, facilitates or induces child prostitution either by: (1) acting as a procurer of a child prostitute; or (2) inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; or (3) by taking advantage of influence or relationship to procure a child as a prostitute; or (4) threatening or using violence towards a child to engage him as a prostitute; or (5) giving monetary consideration, goods or other pecuniary benefits to the child with the intent to engage such child in prostitution.
CIHAED

The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development. 70 A child exploited in prostitution may seem to "consent" to what is being done to her or him and may appear not to complain. However, we have held that a child who is "a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition" is incapable of giving rational consent 71 to any lascivious act or sexual intercourse. In fact, the absence of free consent is conclusively presumed when the woman is below the age of twelve. 72 Appellant, whom AAA had looked up to as her father, had the duty to care for and bring her up. Far from looking after her moral character, mental state and physical well-being, he had actually facilitated her debasement by introducing her to clients and inducing her to engage in prostitution. Abusing the moral ascendancy he had over her, he exposed her to prostitution at a very tender age, made her feel it was her obligation to earn money for their family, in a detestable manner at that, and callously impressed upon her that there was nothing wrong with what the clients had been doing to her. At day's end, he raked in the money that his corruption of the child had brought in. The penalty prescribed by Section 5 of R.A. No. 7610 is reclusion temporal in its medium period to reclusion perpetua.However, it was not proven that appellant

is the parent or guardian of AAA. The establishment of either relationship would have justified the imposition of the penalty provided in the law in its maximum. Thus, there being neither mitigating nor aggravating circumstance, the penalty which could properly be imposed is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law. After applying the Indeterminate Sentence Law, the proper imposable penalty is an indeterminate sentence the maximum term of which shall be that which could properly be imposed (reclusion temporal in its maximum period), and the minimum of which shall not be less than the minimum term prescribed by the law (reclusion temporal in its medium period). 73 Section 31 (c), Article XII of R.A. No. 7610 states:
xxx xxx xxx (c)The penalty provided herein shall be imposed in its maximum period when the perpetrator is anascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a manager or owner of an establishment which has no license to operate or its license has expired or has been revoked. (Emphasis supplied.)

Under R.A. No. 7610, Sec. 31 (c), relationship is not a qualifying circumstance but only an ordinary generic aggravating circumstance. Thus, although it was not alleged in the information it can nevertheless be taken into account in fixing the penalty for the crime because it was proven. 74 A generic aggravating circumstance provides for the imposition of the prescribed penalty in its maximum period, while a qualifying circumstance changes the nature of the crime. 75 In the case at bar, the only evidence presented to establish AAA's alleged relationship to appellant is her birth certificate 76 which mentions appellant as the father. However, said document does not bear appellant's signature. In fact, appellant, in his testimony, denied that he is AAA's father. 77 He claimed that, sometime in 1983, AAA was brought to him by a certain Salvacion Buela, AAA's real mother, who could not support her. 78 Salvacion Buela told appellant that AAA was born on 11 May 1983 and that her natural father was a Japanese national. 79 As prepared, the birth certificate indicates that AAA was born on "11 May 1985" to "Librada A. Telin" (mother) and "Simplicio R. Delantar" (father) who were married on "14 February 1977" in "Manila." The legible signature which reads "Librada T. Delantar" appears below the printed item "INFORMANT" and above the typewritten name "Librada T. Delantar" and word "Mother."

However, nowhere on the face of the birth certificate can the signature of appellant be found. According to appellant, Librada A. Telin is his sister and they did not get married to each other on the date indicated in the birth certificate, or impliedly at least, not ever.
CAScIH

While under the Family Code, filiation can be established by, among others, the record of birth appearing in the civil register, 80 yet the rule is where the birth certificate presented was not signed by the father against whom filiation is asserted, such may not be accepted as evidence of the alleged filiation. In Angeles v. Maglaya, 81 we held:
. . . Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child. Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses. . . . 82

In Angeles v. Maglaya, we refused to give evidentiary weight to the birth certificate as proof of filiation in a case for settlement of estate to support a claim of legitimacy because the same was unsigned by the alleged father. With more reason we should not accord value to the birth certificate in this case considering that its effect would be to increase the penalty to be imposed on the appellant. This is a criminal case wherein an interpretation unfavorable to the accused is generally unacceptable. The Solicitor General cites this Court's pronouncement in Heirs of Cabais v. Court of Appeals, 83 that "[a] birth certificate, being a public document, offers prima facie evidence of filiation and a high degree of proof is needed to overthrow the presumption of truth contained in such public document." 84 The pronouncement is not applicable to this case. It was made merely as an elucidation of the limited evidentiary value of a baptismal certificate in this jurisdictionvis--vis a birth certificate. In that case, presented was the baptismal certificate of the person whose filiation was sought to be established. The birth certificate itself was not presented. In the case at bar, the birth certificate of AAA was presented. We thus hold that the birth certificate of AAA is prima facie evidence only of the fact of her birth and not of her relation to appellant. After all, it is undisputed that appellant is not AAA's biological father.
HcDSaT

At best, appellant is AAA's de facto guardian. Now, would this circumstance justify the imposition of the higher penalty on him? We think not. We apply, by analogy, the ruling of this Court in People v. Garcia, 85 where we held that the restrictive concept of guardian, legal or judicial, is required by Sec. 11 of R.A. No. 7659. Said provision, by way of amending Art. 335 of the Revised Penal Code, ordains that where the victim of the crime of rape is under eighteen years of age and the offender is, inter alia, a guardian of the victim, the death penalty shall be imposed. We ruled:
The law requires a legal or judicial guardian since it is the consanguineous relation or the solemnity of judicial appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from violating its objectives. Such considerations do not obtain in appellant's case or, for that matter, any person similarly circumstanced as a mere custodian of a ward or another's property. The fiduciary powers granted to a real guardian warrant the exacting sanctions should he betray the trust. 86

Further, according to the maxim noscitur a sociis, the correct construction of a word or phrase susceptible of various meanings may be made clear and specific by considering the company of words in which it is found or with which it is associated. 87 Section 31 (c) of R.A. No. 7610 contains a listing of the circumstances of relationship between the perpetrator and the victim which will justify the imposition of the maximum penalty, namely when the perpetrator is an "ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity." It should be noted that the words with which "guardian" is associated in the provision all denote a legal relationship. From this description we may safely deduce that the guardian envisioned by law is a person who has a legal relationship with a ward. This relationship may be established either by being the ward's biological parent (natural guardian) or by adoption (legal guardian). Appellant is neither AAA's biological parent nor is he AAA's adoptive father. Clearly, appellant is not the "guardian" contemplated by law. On the award of indemnity and damages, we delete the Court of Appeals' award of civil indemnity because appellant was not the one who committed the lascivious acts and perpetrated the rape of AAA. Instead, we impose a fine which shall be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of AAA, pursuant to Section 31

(f), Article XII, R.A. No. 7610. Likewise, the award of exemplary damages is improper considering that appellant is not AAA's biological father. WHEREFORE, premises considered, the 31 May 2005 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 00977 is hereby AFFIRMED WITH MODIFICATION. Appellant SIMPLICIO DELANTAR y REDONDO is found guilty of one count of violation of Section 5 (a), R.A. No. 7610. He is sentenced to suffer the indeterminate sentence of fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, and to pay a fine in the sum of P20,000.00 to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of AAA, 88 and P50,000.00 as moral damages.
cACDaH

SO ORDERED.

THIRD DIVISION
[G.R. No. 174205. June 27, 2008.] GONZALO A. ARANETA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J :
p

This petition for review on certiorari under Rule 45 of the Rules of Court assails the Decision 1 of the Court of Appeals dated 15 February 2005, which affirmed the Decision 2 of the Regional Trial Court (RTC) of Dumaguete City, Branch 41, finding petitioner Gonzalo Araneta y Alabastro guilty of violating Section 10 (a), Article VI of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act", as amended. On 12 October 1999, petitioner was charged before the RTC with violation of Section 10 (a), Article VI of Republic Act No. 7610, allegedly committed as follows:

That on April 10, 1998, at about 11:00 o'clock in the morning, at Barangay Poblacion, District III, Dauin, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the said Gonzalo Araneta y Alabastro, with intent to abuse, harass and degrade 17-year-old offended party AAA, 3 and gratify the sexual desire of said accused, the latter, did, then and there willfully, unlawfully and feloniously, by means of force and intimidation, hold and embrace said AAA, after trespassing with violence into the room of the dwelling occupied by said offended party, all against the latter's will and consent. 4

When arraigned on 15 November 1999, petitioner pleaded not guilty. Thereafter, trial ensued.
THAECc

At the trial, the prosecution presented the following witnesses: (1) the victim herself, AAA, who testified on matters that occurred prior, during and after her abuse; (2) BBB, AAA's 12-year-old sister, whose testimony corroborated that of the victim; (3) CCC, AAA's mother who testified on the fact that the victim was a minor during the alleged commission of the crime. As culled from the combined testimonies of the prosecution witnesses, the prosecution was able to establish that at the time of the commission of the crime, AAA was 17 years old, having been born on 28 March 1981, in Batohon Daco, Dauin, Negros Oriental. 5 Because she was then studying at Dauin Municipal High School located at Poblacion, District III, Dauin, AAA left her birthplace to live near her school. She stayed at the house of a certain DDD as a boarder. At around 10:00 o'clock in the morning of 10 April 1998, while AAA and her two younger sisters, BBB and EEE were sitting on a bench at the waiting shed located near her boarding house, petitioner approached her. Petitioner, who had been incessantly courting AAA from the time she was still 13 years old, again expressed his feelings for her and asked her to accept his love and even insisted that she must accept him because he had a job. 6 She did not like what she heard from petitioner and tried to hit him with a broom but the latter was able to dodge the strike. 7 She and her two sisters dashed to the boarding house which was five meters away and went inside the room. When they were about to close the door, the petitioner, who was following them, forced himself inside. The three tried to bar petitioner from entering the room by pushing the door to his direction. Their efforts, however, proved futile as petitioner was able to enter. 8 There petitioner embraced AAA, who struggled to extricate herself from his hold. AAA then shouted for help. Meanwhile, petitioner continued hugging her and tried to threaten her with these words: "Ug dili ko nimo sugton, patyon

tike. Akong ipakita nimo unsa ko ka buang"

(If you will not accept my love I will kill you. I will show you how bad I can be). BBB, tried to pull petitioner away from her sister AAA, but to no avail. 10 Andrew Tubilag, who was also residing in the same house, arrived and pulled petitioner away from AAA. 11 AAA closed the door of the room and there she cried. She then went to the police station to report the incident. 12
9

The petitioner, on the other hand, denied the charge. He alone took the stand. Petitioner narrated that he met AAA and her younger sisters at the waiting shed, but he denied having embraced or kissed the victim. 13 He said he only spoke to her and told her that he loved her. Although he admitted that he followed AAA and her sisters when they went to the boarding house, it was because AAA beckoned him to follow her. 14 When he was inside the room, he again told her of his feelings but he was merely told by her to wait until she finished her studies. 15 He further said that he had been courting and visiting AAA since she was 12 or 13 years old. 16 On 27 February 2001, the RTC rendered a decision totally disregarding petitioner's bare denials and flimsy assertions. In convicting petitioner of the crime charged, it held that petitioner's act of forcibly embracing the victim against her will wrought injury on the latter's honor and constituted child abuse as defined under Section 10 (a), Article VI of Republic Act No. 7610. It further ruminated that if the mentioned statute considers as child abuse a man's mere keeping or having in his company a minor, twelve years or under or ten years or more his junior, in any public place, all the more would the unwanted embrace of a minor fall under the purview of child abuse.
TcICEA

The decretal portion of the RTC decision reads:

WHEREFORE, the Court finds accused Gonzalo Araneta y Alabastro guilty beyond reasonable doubt of Violation of Section 10(a) of Republic Act No. 7610 and hereby sentences him to suffer the penalty of prision mayor in its minimum period, to pay the offended party Php50,000.00 as moral damages without subsidiary imprisonment in case of insolvency, and to pay the costs. 17

Dissatisfied with the ruling of the RTC, petitioner elevated the case to the Court of Appeals. Petitioner claimed that the RTC gravely erred in convicting him of child abuse despite failure of the prosecution to establish the elements necessary to constitute the crime charged. Section 10 (a) provide: "Any person who shall commit any other acts of abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development

including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period"; and Section 3 (b) (2) defines child abuse in this manner: "Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being." From these provisions, petitioner concludes that an act or word can only be punishable if such be prejudicial to the child's development so as to debase, degrade or demean the intrinsic worth and dignity of a child as a human being. In other words, petitioner was of the opinion that an accused can only be successfully convicted of child abuse under Section 10 (a) if it is proved that the victim's development had been prejudiced. Thus, according to petitioner, absent proof of such prejudice, which is an essential element in the crime charged, petitioner cannot be found guilty of child abuse under the subject provision.
cECaHA

The Office of the Solicitor General (OSG), on the other hand, believes that the questioned acts of petitioner fall within the definition of child abuse. According to the OSG, when paragraph (a) of Section 10 of Republic Act No. 7610 states:"Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other condition prejudicial to the child's development . . .," it contemplates two classes of "other acts" of child abuse, i.e., (1) other acts of child abuse, cruelty, and exploitation; and (2) other conditions prejudicial to the child's development. It argues that unlike the second kind of child abuse, the first class does not require that the act be prejudicial to the child's development. In a decision dated 15 February 2005, the Court of Appeals concurred in the opinion of the OSG. It affirmed in toto the decision of the RTC, viz.:
WHEREFORE, the instant appeal is DENIED and accordingly, the assailed Decision is AFFIRMED in toto. 18

Petitioner filed a motion for reconsideration dated 14 March 2005, which was denied by the Court of Appeals in its 10 August 2006 Resolution. Hence, the instant petition. The petition is devoid of merit. Republic Act No. 7610 is a measure geared towards the implementation of a national comprehensive program for the survival of the most vulnerable members of the population, the Filipino children, in keeping with the

Constitutional mandate under Article XV, Section 3, paragraph 2, that "The State shall defend the right of the children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development." 19 This piece of legislation supplies the inadequacies of existing laws treating crimes committed against children, namely, the Revised Penal Code and Presidential Decree No. 603 or the Child and Youth Welfare Code. 20 As a statute that provides for a mechanism for strong deterrence against the commission of child abuse and exploitation, the law has stiffer penalties for their commission, and a means by which child traffickers could easily be prosecuted and penalized. 21 Also, the definition of child abuse is expanded to encompass not only those specific acts of child abuse under existing laws but includes also "other acts of neglect, abuse, cruelty or exploitation and other conditions prejudicial to the child's development". Article VI of the statute enumerates the "other acts of abuse". Paragraph (a) of Section 10 thereof states:
Article VI OTHER ACTS OF ABUSE SEC. 10.Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development.

(a)Any person who shall commit any other acts of abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. (Emphasis supplied.)

As gleaned from the foregoing, the provision punishes not only those enumerated under Article 59 22 of Presidential Decree No. 603, but also four distinct acts, i.e., (a) child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to the child's development. The Rules and Regulations of the questioned statute distinctly and separately defined child abuse, cruelty and exploitation just to show that these three acts are different from one another and from the act prejudicial to the child's development. Contrary to petitioner's assertion, an accused can be prosecuted and be

convicted under Section 10 (a), Article VI of Republic Act No. 7610 if he commits any of the four acts therein. The prosecution need not prove that the acts of child abuse, child cruelty and child exploitation have resulted in the prejudice of the child because an act prejudicial to the development of the child is different from the former acts. Moreover, it is a rule in statutory construction that the word "or" is a disjunctive term signifying dissociation and independence of one thing from other things enumerated. 23 It should, as a rule, be construed in the sense which it ordinarily implies. Hence, the use of "or" in Section 10 (a) of Republic Act No. 7610 before the phrase "be responsible for other conditions prejudicial to the child's development" supposes that there are four punishable acts therein. First, the act of child abuse; second, child cruelty; third, child exploitation; and fourth, being responsible for conditions prejudicial to the child's development. The fourth penalized act cannot be interpreted, as petitioner suggests, as a qualifying condition for the three other acts, because an analysis of the entire context of the questioned provision does not warrant such construal. The subject statute defines children as persons below eighteen (18) years of age; or those over that age but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. 24 It is undisputed that the victim, under said law, was still a child during the incident. Subsection (b), Section 3, Article I of Republic Act No. 7610, states:
(b)"Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following: (1)Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (2)Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; (3)Unreasonable deprivation of his basic needs for survival, such as food and shelter; or (4)Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

The evidence of the prosecution proved that petitioner, despite the victim's protestation, relentlessly followed the latter from the waiting shed to her boarding house and even to the room where she stayed. He forcibly embraced her and threatened to kill her if she would not accept his love for her. Indeed, such devious act must have shattered her self-esteem and womanhood and virtually debased, degraded or demeaned her intrinsic worth and dignity. As a young and helpless lass at that time, being away from her parents, the victim must have felt desecrated and sexually transgressed, especially considering the fact that the incident took place before the very eyes of her two younger, innocent sisters. Petitioner who was old enough to be the victim's grandfather, did not only traumatize and gravely threaten the normal development of such innocent girl; he was also betraying the trust that young girls place in the adult members of the community who are expected to guide and nurture the wellbeing of these fragile members of the society. Undoubtedly, such insensible act of petitioner constitutes child abuse. As the RTC aptly observed:
It bears stressing that the mere keeping or having in a man's companion a minor, twelve (12) years or under or who is ten (10) years or more his junior in any public or private place already constitutes child abuse under Section 10(b) of the same Act. Under such rationale, an unwanted embrace on a minor would all the more constitute child abuse. 25

This factual findings of the RTC, which were affirmed by the Court of Appeals are entitled to respect and are not to be disturbed on appeal, unless some facts or circumstances of weight and substance, having been overlooked or misinterpreted, might materially affect the disposition of the case. 26 The assessment by the trial court of the credibility of a witness is entitled to great weight. It is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. In the case under consideration, we find that the trial court did not overlook, misapprehend, or misapply any fact of value for us to overturn the said findings. The RTC imposed upon petitioner the penalty of prision mayor in its minimum period. The penalty is in order, pursuant to Section 10 (a), Article VI of Republic Act No. 7610. As to the award of damages, the victim is entitled to moral damages, having suffered undue embarrassment when petitioner forcibly hugged her and threatened to kill her if she would not accept petitioner's love. There is no hardand-fast rule in the determination of what would be a fair amount of moral damages, since each case must be governed by its own peculiar facts. 27 The yardstick should be that it is not palpably and scandalously excessive. 28 The

Court finds that the award of moral damages in the amount of P50,000.00 is reasonable under the facts obtaining in this case. WHEREFORE, the 15 February 2005 Decision of the Court of Appeals in CA-G.R. CR No. 25168, which affirmed in totothe Decision of the Dumaguete City Regional Trial Court, Branch 41 in Criminal Case No. 14246 finding Gonzalo A. Araneta guilty of violating Section 10 (a), Article VI of Republic Act No. 7610 and sentencing him to suffer the penalty ofprision mayor in its minimum period and awarding to the victim moral damages in the amount of P50,000.00 as moral damages, is AFFIRMED in toto. No costs. SO ORDERED.

FIRST DIVISION
[G.R. No. 133922. February 12, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DEOLITO OPTANA, accused-appellant.

Solicitor General for plaintiff-appellee. Romeo Alinea for accused-appellant.

SYNOPSIS Maria Rizalina Onciano was born in 1981 to Nida A. Onciano and Raul Gomez. However, Raul left Nida even before the latter gave to Maria. In 1986, Nida became the common-law wife of Deolito Optana with whom she had seven children. Maria was twelve (12) years old when her stepfather started raping her in their own house. It was only revealed that something bad happened to Maria when her mother noticed that her tummy was quite protruding. At first Maria refused to answer her mother's inquisition, but finally she was able to reveal that her stepfather raped her. Maria, accompanied by her Aunt Evelyn, went to the doctor for examination. She revealed to the doctor that her father repeatedly raped her. Thereafter, Maria's statement was taken at the police station and a formal complaint was filed against Deolito, herein accused-appellant. Accusedappellant was charged with four information's for violation of Section 5 of Republic Act No. 7610, also known as the Special Protection of Children Against

Child Abuse and four Informations for Rape. Maria was committed to DSWD for protective custody until she delivered her baby boy. After her delivery, Maria manifested signs of depression and violence to the extent of killing herself. This caused her to be committed to the National Center for Mental Health for treatment and rehabilitation. The accused denied raping her and told the court that his stepdaughter was always out with her barkadas, which caused her mother to complain that she had to spent so much time looking for her. Maria's mother corroborated the accused appellant's testimony. The trial court rendered its decision convicting the accused-appellant with rape and violation of Sec. 5 (b), R.A. 7610, where he was sentenced to reclusion perpetua and an indeterminate prison term, respectively. The accused appealed his case before the Supreme Court. Given all the facts and circumstances of the case, the Supreme Court ruled with moral certainty that the accused appellant was indeed guilty of the crimes charged. According to the Supreme Court the trial court correctly convicted the accused for the rape on that fateful day of September 1993 for it was proven that the accused had carnal knowledge with the victim through force and intimidation. Also the Court affirmed the conviction of the accused appellant for violation of the Child Abuse Law for sexually abusing his stepdaughter, using his moral ascendancy in intimidating the victim to engage in sexual intercourse with him. The decision of the trial court was affirmed with modification on the civil indemnity and moral damages. SYLLABUS l.REMEDIAL LAW; EVIDENCE; FINDINGS OF THE TRIAL COURT; ACCORDED GREAT RESPECT ON APPEAL; RATIONALE; APPLICATION IN CASE AT BAR. Mindful of the well-settled rule that findings of facts of the trial court are accorded great respect considering that the trial judge has observed the demeanor of the witnesses, the Court does not find any cogent reason to depart from such rule. The trial judge had these observations about the witness: Rizalina was already 14 years old when she testified in Court. At the time she testified she was succinct in her declaration and appeared to the Court to be truthful. She had no reason to fabricate a story against the accused who supported her in her daily needs and spent for her education until she finished Grade 6. Ingratitude is not a trait common to a provincial child still innocent of the vicissitudes of life. A witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent is a credible witness. Since the trial court found Maria Rizalina's testimony to be credible and

trustworthy, it was more than sufficient to sustain the accused appellant's conviction. The fact that the accused-appellant had carnal knowledge with the young victim is corroborated by the findings of Dr. Laila Patricio, who upon examination on November, 1995 found Maria Rizalina to be 6-7 months pregnant already. Maria Rizalina confided to her that her stepfather raped her. This accusation was repeated when she was investigated by SP03 Cesar Antolin at the Subic Police Station, Subic, Zambales, and when she was interviewed by Social Welfare Officer Il, Ana Ecle of the DSWD, lba, Zambales. 2.ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY OF RAPE VICTIM NOT AFFECTED BY THE DELAY IN REPORTING THE CRIME; CASE AT BAR. To the accused-appellant, it strains credulity why the victim never said anything about the incidents until the discovery by the mother on November 24, 1994 when she revealed that it was her stepfather who was responsible for her pregnancy. Delay in reporting the crime is understandable. It is not uncommon for young girls to conceal for some time the assaults on their virtue because of the rapist's threat on their lives. The case at bar is no exception to these well-founded rule. Maria Rizalina never said anything to her mother of the many times the accusedappellant had sexually abused her for fear of her life. She was definitely afraid of her stepfather who threatened to kill her once she reports the matter to her mother. 3.CRIMINAL LAW; RAPE; VIOLENCE AND INTIMIDATION AS ELEMENTS THEREOF; MAY BE SUBSTITUTED BY MORAL ASCENDANCY OF THE ACCUSED OVER THE VICTIM; CASE AT BAR. When the accused-appellant was courting Nida Onciano, he was very aware that she had a daughter. Before they agreed to live together, he was made to understand that he had to accept and treat Maria Rizalina as his own daughter, too caring for her and providing for her education. Since Maria Rizalina did not have a father, she regarded the accusedappellant as such. Even at her young age, she recognized the parental authority the accused-appellant had over her and in return, she gave the reverence and respect due him as a fat Undeniably, there was moral ascendancy on the part of accused-appellant over the victim. In a rape committed by a father against the daughter, the former's moral ascendancy and influence over the latter substitutes for violence and intimidation. experience has certainly caused great trauma on Maria Rizalina that she had to be committed to the National Center for Mental Health, Mandaluyong City to undergo psychological and medical treatment for severe depression. 4.ID.; ID.; CAN BE COMMITTED EVEN IN PLACES WHERE PEOPLE CONGREGATE FOR LUST IS NO RESPECTER OF TIME AND PLACE; APPLICATION IN CASE AT

BAR Accused-appellant denies having raped his stepdaughter alleging that it was or impossible for him to have committed the crime "in broad daylight in a small house, abundant with open windows and doors, people by six or seven mischievous and open-eyed curious souls with every unusual scenarios of members involving kins and like their fathers." The Court sees no impossibility for commission of this abominable act on the victim under the all circumstances. Many cases attest to the unfortunate fact rape can be committed even in places where people congre in parks, along the roadside, within school premises and even in a house where there are occupants. Lust is no respected of or place. 5.ID.; ID.; MOTIVE IS NOT AN ELEMENT THEREOF; CASE AT Ill motive is never an essential element of a crime. It become inconsequential in a case where there are affirmative, categorical declarations towards the accusedappellant accountability for the felony. Maria Rizalina's straightforward consistent testimony belies any claim of being pressured by aunt to concoct a story of defoliation against the stepfather. cross examination, she was quick to deny that her Tita E prompted her to report to the authorities about her physical condition and the person responsible thereof. '6.ID.; ID.; CONVICTION THEREOF REQUIRES PROOF BEYOND REASONABLE DOUBT. The trial court correctly convict the accused for Rape under Article 335 of the RPC in Criminal Case No. 485-95 for it was clearly proven that the accused carnal knowledge with the victim through force and intimidation on that fateful day in September, 1993. This was the first the accused raped Maria Rizalina who was able to give a detailed account of this traumatic experience. She was below 12 years old at that time. While Maria Rizalina also testified that she was raped several times after September, 1993, the prosecution, however, failed to establish the material details as to the time, place, and manner by which these offenses were committed. There is still a need for proof beyond reasonable doubt that the offenses alleged in the informations were indeed committed. Thus, the trial court acquitted the accused under Criminal Case Nos. 482-95, 483-95, 484-95, 486-95, 488-95, 489-95 for want of sufficient evidence. 7.ID.; ID.; WHEN COMMITTED IN VIOLATION OF THE CHILD ABUSE LAW; CONSTRUED; APPLICATION IN CASE AT BAR The trial court convicted the accused under Criminal Case No. 487-95 for violation of Sec. 5(b) of R.A. 7610 or the Child Abuse Law. In the case of People v. Larin, the Court has explained that the elements of the offense penalized under this provision are as follows; 1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age. A .child is

deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA 7610, children are "persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition." It must be noted that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in any lascivious conduct. Hence, the foregoing provision penalizes not only child prostitution, the essence of which is profit, but also other forms of sexual abuse of children. This is clear from the deliberations of the Senate. From the above disquisition, the accused is certainly guilty of sexual abuse committed on his stepdaughter, using his moral ascendancy in intimidating the victim to engage in sexual intercourse with him.

DECISION KAPUNAN, J :
p

Upon a sworn complaint filed by Maria Rizalina Onciano on November 28, 1995, four (4) Informations for violation of Section 5 of Republic Act No. 7610, or known as the Special Protection of Children Against Child Abuse and four (4) Informations for Rape were filed against herein accused-appellant Deolito Optana committed as follows:
1.Criminal Case No. 482-95 for rape: That on or about the 28th day of October, 1995 at Sitio Daan Naugsul, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 13 years old and ten (10) months, against her will and consent, to the damage and prejudice of the latter. 2.Criminal Case No. 483-95 for rape:

That on or about and during the month of October 1993, at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 11 years old and ten (10) months, against her will and consent, to the damage and prejudice of the latter. 3.Criminal Case No. 484-95 for rape: That on or about the month of September, 1995 at Sitio Daan Naugsul, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 13 years old and nine (9) months, against her will and consent, to the damage and prejudice of the latter. 4.Criminal Case No. 485-95 for rape: That on or about and during the month of September 1993, at Sibo Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, actuated by lust and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously have carnal knowledge with his stepdaughter one Rizalina Onsiano, a girl of 11 years old and nine (9) months, against her will and consent, to the damage and prejudice of the latter. 5.Criminal Case No. 486-95 for Viol. Of Sec. 5(b) ART. III of Republic Act 7610 (Child Abuse): That on or about and during the month of September, 1993, at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other considetation (sic), did then and there willfully, unlawfully, and feloniously have sexual intercourse with his

stepdaughter one Rizalina Onsiano, a minor of 11 years old and nine (9) months, to the damage and prejudice of said Rizalina Onsiano. 6.Criminal Case No. 487-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child Abuse): That on or about the 28th day of October, 1995 at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other consideration, did then and there willfully, unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina Onsiano, a minor of 13 years old and ten (10) months, to the damage and prejudice of said Rizalina Onsiano. 7.Criminal Case No. 488-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child Abuse): That on or about the month of September, 1995 at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Province of Zambales, Philippines and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other consideration, did then and there willfully, unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina Onsiano. 8.Criminal Case No. 489-95 for Viol. Of Sec. 5(b) Art. III of Republic Act 7610 (Child Abuse): That on or about and during the month of October, 1993 at Sitio Daan Naugsol, Brgy. Mangan Vaca, in the Municipality of Subic, Pronvice (sic) of Zambales, Philippines and within the jurisdiction of this Honorable Court, the said accused with lewd design, and by means of intimidation, coercion, influence and other consideration, did then and there willfully, unlawfully and feloniously have sexual intercourse with his stepdaughter one Rizalina Onsiano, a minor of 11 years old and ten (10) months, to the damage and prejudice of said Rizalina Onsiano. 1

Upon arraignment, accused-appellant pleaded not guilty to each of the above informations.

The facts are as follows: Maria Rizalina Onciano is the daughter of Nida A. Onciano who was born on December 13, 1981 at Tondo General Hospital. The father, Raul Gomez left Nida Onciano even before Maria Rizalina was born. 2 Nida Onciano met the accused-appellant, Deolito Optana in 1985 at Doris Restaurant in Olongapo City where they were both working. 3 They decided to live together in 1986 without the benefit of marriage even if accused-appellant knew that Nida Onciano already had a daughter. Out of this common-law relationship, the couple had seven children, the eldest being born in 1988 and the youngest, less than a month when the accused-appellant testified in court in June, 1997. 4 In 1990, the couple moved to Subic and established residence at Sitio Daan Naugsol, Manganvaca, Subic, Zambales with Maria Rizalina and three born children in tow. Maria Rizalina started to go to school at Manggahan Elementary School, Subic, Zambales. Sometime in September, 1993, Maria Rizalina was playing in the yard with her brothers and sisters when her stepfather called for her to come up to the room. Her mother was out of the house at that time. Upon entering the room, Maria Rizalina was ordered to undress but she refused. The accused-appellant slapped her face twice on her cheeks and threatened to box her. 5 He finally succeeded in removing her clothes. The accused-appellant kissed Maria Rizalina on the mouth, on her breast, and on her private parts. Thereafter, accused-appellant removed his shorts, held both hands of Maria Rizalina and went on top of her while she was lying on the wooden bed. Accused-appellant inserted his penis into the vagina of Maria Rizalina. The latter felt pain in her private part and shouted "masakit po." Accused-appellant stayed on top of Maria Rizalina for about ten (10) minutes making "downward and upward movement" or "pumping." Accused-appellant stood up, took a piece of cloth from the bed (pamunas) and wiped the blood in his sex organ. Afterwhich, he gave the rag to Maria Rizalina and told her to wipe her private part because there was blood on it. He told her to dress up quickly since Maria Rizalina's mother would arrive shortly. Maria Rizalina did not tell her mother what happened to her because she was afraid of the accused-appellant. She was threatened to be killed once she reports the incident. Maria Rizalina was twelve (12) years old at that time of this fateful day.

On several occasions, whenever Nida Onciano was out of the house since she was busy selling wares in the market, accused-appellant raped Maria Rizalina. The victim could no longer remember how many times she was raped but she particularly recalled that on October 28, 1995, the accused-appellant raped her inside the room where she and her brothers and sisters were sleeping. This was the last time that accused-appellant touched her. 6
HSIDTE

It was on November 24, 1995 when Nida Onciano noticed that Maria Rizalina's tummy was quite protruding while the latter was sleeping on the floor. Maria Rizalina at first refused to answer her mother's inquisitions but finally revealed that the accused-appellant raped her. The next day, Nida Onciano asked her sister, Evelyn Nallos to accompany Maria Rizalina to the doctor to have her examined. At the Olongapo City General Hospital, Dr. Laila Patricio of the Obstetrics and Gynecology Department found Maria Rizalina to be 6-7 months pregnant. Maria Rizalina told her that her stepfather repeatedly raped her. The Medical Report revealed the following:
Medical Certification
November 27, 1995 TO WHOM IT MAY CONCERN: This is to certify that RIZALINA ONSIANO 14 y/o, of Daangbakal, Daan Naugsog Subic, Zambales was examined and treated/confined in this hospital on/from November 25, 1995 . . . with the following findings and/or diagnosis: BREAST Enlarged, areola 3.5 x 3.5 cm, no fissures nor hematoma. ABDOMEN FH 21 cm, FHT - /36/ min. RLQ Hymen not intact, vagina admits 2 fingers with ease, Cervix closed, uneffaced, floating cephalic. Pregnancy uterine 6-7 months by size, not in labor. (SGD.) LAILA S. PATRICIO, M.D. Attending Physician
7

After Maria Rizalina's statement was taken at the police station, a formal complaint was filed against the accused-appellant on November 27, 1995.

Considering Maria Rizalina's minor age, she was referred to the Municipal Social Welfare and Development Office for assistance. Initial interviews revealed that Maria Rizalina was so confused considering that her mother was pressuring her to withdraw the complaint against the stepfather. It was then recommended that Maria Rizalina be committed to the Department of Social Welfare and Development for protective custody and placed under the care of the Substitute Home for Women in Especially Difficult Circumstances Saup Lugud Center, San Ignacio Subdivision, Pandan, Angeles City. 8

On February 23, 1996, Maria Rizalina delivered a baby boy at the "Hospital Ning Angeles" in Angeles City whom she named Richard Onciano. The name of the father was not indicated. At the Saup Lugud Center, Maria Rizalina manifested signs of depression and violence to the extent of killing herself. She was committed to the National Center for Mental Health for treatment and rehabilitation. The accused, on the other hand, denied having raped his stepdaughter. He testified that his stepdaughter was always out of the house with her barkadas. In fact, her mother, Nida was always complaining that she spent so much time looking for her. He testified further that Maria Rizalina was always absent from school. He only learned about the complaint for rape filed against him when he was apprehended by the police. Deolito Optana testified that he met Nida Onciano in 1985 in a restaurant in Olongapo City. He knew that Nida had a daughter but he still courted her and promised to take care of both of them and help support in the education of Maria Rizalina. Nida Onciano corroborated the accused-appellant's testimony. She did not believe that her common-law husband would rape her daughter because she considered her sexual relationship with him as very satisfactory. She averred that it was her sister, Evelyn Nallos who insisted on pursuing the case against Optana because of an old grudge against them. Evelyn Nallos took care of two of the children of Nida Onciano and Deolito Optana but who died of pneumonia and drowning during a flood. Since the death of the children, her relationship with her sister had been estranged. Evelyn Nallos still wanted to take her other children including Maria Rizalina but she refused.

On March 5, 1998, the RTC rendered a decision, the dispositive portion of which reads:
WHEREFORE, finding the accused Deolito Optana guilty beyond reasonable doubt by direct participation of the crime of rape as defined and penalized under Article 335 of the Revised Penal Code and for violation of Section 5(b) of Republic Act 7610, judgment is rendered in the following manner: 1.In Criminal Case No. 485-95 for rape, the accused is sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties attached thereto and to indemnify the minor Ma. Rizalina Onciano the amount of P50,000.00, moral damages in the amount of P100,000.00, and exemplary damages of P100,000.00. 2.In Criminal Case No. 487-95, for violation of Section 5 (b) R.A. 7610, the said accused is sentenced to suffer an indeterminate prison term of eight (8) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum with all the accessory penalties attached thereto and to indemnify Ma. Rizalina Onciano the amount of P50,000.00, plus moral damages in the amount of P100,000.00 and exemplary damages in the amount of P100,000.00. 3.The accused shall support Ma. Rizalina Onciano's child Richard Onciano. 4.The accused is acquitted of the crimes charged in Criminal Case Nos. 482-95, 483-95, 484-95, 486-95, 488-95, 489-95, for insufficiency of evidence. 5.The accused shall be entitled in full of his preventive imprisonment if he agreed in writing to abide by all the disciplinary rules imposed on convicted prisoners, otherwise to only 4/5 thereof. 6.Costs against the accused. SO ORDERED.
9

Accused-appellant now comes to this Court with the following assignment of errors:

I THE APPELLANT'S CONVICTION BY THE TRIAL COURT IS GROUNDED ON FACTS AND ENVIRONMENTAL CIRCUMSTANCES THAT ARE INCONSISTENT AND IMPROBABLE TO HAPPEN, AND THE ACTS CHARGED ARE NOT CLEAR, POSITIVE AND CONVINCING, AND NOT CONSISTENT WITH HUMAN BEHAVIOR AND TITE (SIC) NATURAL COURSE OF THINGS. II THE TRIAL COURT FAILED TO CONSIDER AND APPRECIATE THE ILLMOTIVE AND CONSUMING HATRED OF APPELLANT'S IN-LAWS WHO ORCHESTRATED THE FILING OF THIS CASE, AND WHO WITH UNCANNY MEASURES PREVENTED THE DEFENSE THE MUCH NEEDED CORROBORATIVE EVIDENCE. III THE TRIAL COURT FAILED TO CONSIDER AND APPRECIATE THAT THE ACTUATIONS AND CONDUCT OF THE COMPLAINT AFTER THE INCIDENTS AND DURING THE TRIAL WHEN INTERTWINED WITH OTHER FACTS DOES NOT CONFORM TO THE NORM OF CONDUCT OF PEOPLE WHO ARE INJURED AND RAVAGED. IV THE COURT A QUO OVERLOOKED, MISUNDERSTOOD, MISAPPRECIATED AND MISINTERPRETED MATERIAL FACTS OF IMPORTANCE AND SUBSTANCE WHICH IF CONSIDERED AND GIVEN WEIGHT AND PROBATIVE VALUE WILL TILT THE SCALE OF "LADY JUSTICE" IN FAVOR OF ACQUITTAL. 10

We agree with the trial court's decision. The victim, Maria Rizalina, first took the witness stand on August 7, 1996. She was, however, observed to be psychologically and emotionally unprepared to testify at that time so the trial court decided to postpone her testimony to a later date after her complete rehabilitation at the National Center for Mental Health. 11 On January 22, 1997, Maria Rizalina was called back to the witness stand. Now very much calm and composed, she gave a recount of her ordeal under her stepfather. She testified as follows:
qNow, Ms. Onsiano, did you go to school sometime in September 1993?

aYes, sir. xxx xxx xxx qWhat school were you enrolled in 1993? aManggahan Elementary School, sir. qSchool in 1993? aGrade IV, sir. qAnd who was supporting your education? aMy mother, sir. qAnd aside from your mother, who else, if any, was helping your mother in providing your educational expenses? aDeolito Optana, sir, my stepfather. qIf Deolito Optana is inside the courtroom, will you be able to point him out to the court? aYes, sir. COURT qPoint him out. xxx xxx xxx aThat's him, sir. xxx xxx xxx qNow, how long have you been living with your mother together with your stepfather Deolito Optana at Barangay Mangavaca, Subic, Zambales, prior to September 1993? aSince I was in Grade 1, sir. qNow, in September 1993, do you recall if Deolito Optana was still living with your mother in your house at Mangavaca, Subic, Zambales?

aYes, sir. qNow, do you recall sometime in the afternoon or noontime of September 1993 while you were in your house at Manganvaca, Subic, Zambales, if any unusual incident that happened to you? xxx xxx xxx aYes, sir. PROS. FLORESTA qCould you please tell this Honorable Court what is that unusual incident that happened in your house at Subic sometime in September 1993? aI was raped, sir. qBy whom? aBy my stepfather, sir. COURT qAnd who is your stepfather? aDeolito Optana, sir. qIs Deolito Optana married to your mother? aNo, sir. qSo, he is a live-in partner of your mother? aYes, sir. xxx xxx xxx PROS FLORESTA qAnd how did Deolito Optana raped (sic) you? aHe was forcing me, sir. qDo you still recall what dress were you wearing at that time?

aNo, sir. qBut you have clothes on your body? aYes, sir. qAnd do you know what did the accused Deolito Optana do with your clothes? aHe was forcing me to undress or to remove my clothes, sir. qAnd was he able to make you undress? aNo, sir. qAnd when Deolito Optana failed to force you to undress, what did he do, if any? aHe was hurting me, sir. COURT qHow was he hurting you? aHe was slapping me on my face, and sometimes he would threaten me that he would box me, sir. xxx xxx xxx PROS FLORESTA qAnd what did you do when Deolito Optana was hurting you by slapping you on your face? aI was scared, sir. COURT qHow many times were you slapped on the face? aTwice, sir. qAnd what happened to you when you were slapped on the face? aMy cheeks were painful, sir.

xxx xxx xxx PROS FLORESTA qAnd after you were slapped by the accused, what else happened, if any? aHe was forcing me to undress and then, he repeatedly kissed me, sir. qWhat part of your body was kissed by the accused? aMy mouth, my breast and my private part, sir. qAnd after the accused kissed your private part, what did the accused do, if any? aAnd afterwards, he was forcing to insert his penis into my vagina, sir. qAnd do you still recall what the accused was wearing at that time? aYes, sir. qCould you please tell us what was he wearing at that time? aYes, sir, shorts. qAnd what did he do with his shorts? aHe removed his shorts, sir. qAnd then after removing his shorts, what did the accused do, if any? aAfter removing his shorts and underwear, he held both of my hands and went on top of me, sir. qAnd after he was able to move on top of you, what else did he do? aHe repeatedly kissed me and then, he was forcing to insert his penis into my vagina, sir. COURT qWas he able to insert his penis into your vagina? aYes, sir.

qWhat did you feel? aIt was painful, sir. COURT Continue. PROS. FLORESTA qAnd what did you do when (sic) felt pain in your body after the accused had inserted his penis? aI shouted, sir. COURT qWhat did you shout? aI said MASAKIT PO, sir. qTo whom did you address that? aTo the accused, sir. qYou are referring to the accused Deolito Optana? aYes, sir. qWere you alone at that time? aMy brother and sister were there, sir. qAnd how many brothers do you have? aTwo, sir. qWhere were they? aDownstairs, sir. qHow many sisters do you have? aOne, sir.

qWhere was she at that time? aDownstairs, also, sir. qHow about your mother? aShe was not around, sir. qWhere was she? aShe left the house at that time, and I do not know where she went, sir. qHow long did the accused stayed on top of you? aMore or less, ten minutes, sir. qWhat did you do during that period when he was on top of you? aHe was making a downward and upward movement, sir. He was pumping. xxx xxx xxx PROS. FLORESTA qNow, after making those downward and forward movement, what happened? aAt first, he was trembling, sir.

qAnd then after that, what did the accused do? aHe stood up and he got a PAMUNAS, sir. COURT qWhy would he have to take a wipe? aIt was because there was blood on his sex, sir. qHow about in your private part? aYes, sir, I was having blood in my private part.

qWhat else did you found (sic) out in your private part? aIt was painful, sir. qWhy was it painful? aBecause of his private part, I sustained a wound in my private part, sir. xxx xxx xxx PROS. FLORESTA qNow, after the accused stood up, and got a piece of cloth and . . . COURT qWas he able to get this piece of cloth? aYes, sir. qWhere? aOn the HIGAAN, sir. qWhat did he do with this? aHe used it in wiping his face, sir. qWhat else did he do? aAfter wiping his face, and gave the piece of cloth to me in order to wipe my vagina, and he told me to do it faster, sir. xxx xxx xxx PROS. FLORESTA qAnd why did the accused in this case told (sic) you to act faster? aBecause my mother was about to arrive, sir. qSo what did you do when the accused told you to wipe your private part fast? aI followed him because I was afraid of him, sir.

qAnd what else did the accused do after you wiped your private part with the cloth he gave to you? aHe instructed me to dress up quickly because my mother would arrive, sir. qAnd did you follow him? aYes, sir. qAnd did your mother arrive home? aYes, sir. qAnd when your mother arrived home, what did you do? aI did not do anything because I was instructed not to tell my mother. So I did not do anything because I was afraid, sir. COURT qWhy were you afraid (sic) of your stepfather? aBecause he would kill me if I report the incident, sir. qHow did you know? aBecause he told me, sir. qWhen was it when he told you that? aAfter he raped me, sir. xxx xxx xxx PROS. FLORESTA qNow, after the accused raped you sometime in September 1993, do you know if this incident was repeated by the accused? COURT qBefore you go to that. This incident that you have described, where in the house did this happen?

aUpstairs, sir. qIn what room? aIn their room, sir. qWhen you said THEY, to whom do you refer? aMy mother, sir. qYou were lying down? aYes, sir. qOn what? aOn the bed, sir. qWhat kind of bed? aWooden bed, sir. qHow many rooms were there upstairs? aTwo, sir. qThe other room is for whom? aFor us, sir, my brothers and sisters. xxx xxx xxx PROS. FLORESTA qAfter this incident, was there any other incident that happened to you? aYes, sir. qWhen was that? aI could no longer recall when but everytime my mother was out, he would do the same thing to me, sir.

qCould you still recall how many weeks or days have passed from the first incident in September 1993 when the last incident happened? aI could no longer count because it happened several times, sir. qAnd how many times, more (or) less does this incident happened to your? aSeveral times, sir. qNow, in the month of September 1993, do you recall how many times? aI cannot, sir. qNow, you said that everytime that your mother is out, out of the house, your stepfather used to rape you, could you please tell us what is the reason why your mother is always out of your house? aSometimes she would go to the market and sometimes she would sell some things, sir. qDo you know the occupation of your stepfather Deolito Optana in 1993? aHe was a waiter, sir. xxx xxx xxx qAnd in what grade were you at the time this first incident happened? aGrade IV, sir. qHow old were you then? a12 years old, sir. qWhat is your birth day? a13 December 1981, sir. qHow did you know that your birth is 13 December 1981? aFrom my mother, sir.

xxx xxx xxx PROS. FLORESTA qNow, in 1995, do you still recall if the accused is still living in your house in Manganvaca, Subic, Zambales with you and your mother? aNo more, sir. qNow, do you know the reason why he was no longer residing in the house of your mother in 1995? aHe was already detained at that time, sir. xxx xxx xxx PROS. FLORESTA qWhen was the last incident? WITNESS a28 October 1995, sir. PROS. FLORESTA qAnd where did this 28 October 1995 rape happened? aIn our house, sir. qIn the same room upstairs? aIn our room, sir. COURT qYou mean in the room where your brothers and sisters were sleeping? aYes, sir. xxx xxx xxx
12

qDuring the last hearing, you testified that after you were first raped by the accused in September, 1993, the accused repeated the act of

having raped you. Now could you please tell this honorable court how did the accused raped (sic) you after September, 1993? aHe was forcing me, sir. qAnd how did the accused forced (sic) you . . . to have raped you? COURT qHe was forcing you to what? aHe was forcing me to undress, sir. qWhere? aIn our house, sir. qWhere in your house? aIn the room, sir. xxx xxx xxx PROS. FLORESTA qIs that the room, the same room, where the first incident took place? aIt happens sometime in our room and sometimes in their room, sir. qCould you still recall the month after the first incident that happened to you when the accused forced you to undress inside his room? aThe incident started in September 1993, but he would always rape me when my mother was out, sir. (GINAGALAW NIYA AKO TUWING WALA ANG MAMA KO.) qSo, when you say that since September 1993 up to October 28, 1995, the accused had been GINAGALAW you, is that correct, Ms. Onsiano? aYes, sir. qWhat do you mean by GINAGALAW? aHe was using me, sir.

COURT qHow did he use you? aHe was forcing his penis into my vagina, sir. xxx xxx xxx qWhy did you not report this or why did you report your stepfather, the accused in this case, to anyone of what he did to you? aI was afraid because he threatened me that he would kill me if I report the matter to anyone, sir. qBut do you remember having reported this incident to your mother? aYes, sir, on 24 November 1995. That was the time when I told my mother about the incident. q.And what did your mother do when you reported the matter to her? aShe summoned my Aunt in order to accompany me to the municipal hall to report the matter, sir. After that, I was investigated by the policeman and then, my stepfather was apprehended, sir. xxx xxx xxx qWhat happened to you when you were raped by your stepfather? aI was hurt and I got pregnant, sir. qWhen did you get pregnant? aI cannot say what month, sir. qBut what happened to your pregnancy? aI gave birth to a child, sir. qWhen? a23 February 1996. Sir.
SCaTAc

qWhere? aAt a hospital in Angeles, sir. xxx xxx xxx qAnd what name did you give your child? aRichard Onsiano, sir. COURT Who is the father as appearing in the document? PROS. FLORESTA qUnknown because this is out of wedlock, your Honor. qYou made the registration of the child with the Office of the Local Civil Registrar of Angeles City? aThe Social Worker, sir. qNow, you mentioned awhile ago that when you reported this incident to your mother sometime in November 1995, your mother called for your Aunt Evelyn Nallos? aYes, sir. qFor what purpose? aIn order to accompany me to the Municipal Hall, sir. qAnd were you and your Aunt Evelyn Nallos able to go to the Municipal Hall? aYes, sir. COURT qWhat is the name of the aunt? Evelyn Nallos? aYes, your Honor. qAnd what did you do at the Municipal Hall?

aA complaint was filed against my stepfather, sir. qAnd to whom did you complain? aPolice officer, sir. qAnd what did the police officer do when you complained to him? aDeolito Optana, my stepfather, was apprehended. xxx xxx xxx PROS. FLORESTA qCould you still recall what month in 1995, prior to 28 October 1995 when you were raped by the accused in this case? aI could no longer recall the exact date because he has been using me several times, sir. qCould you still recall how many times in a month the accused has been using you since September 1993 up to 28 October 1995? aSeveral times, sir. I could no longer count because he would always use me each time my mother was out, sir. xxx xxx xxx qDid you have any sexual intercourse with any other men before you gave birth to your child? aYes, sir, my stepfather. qYou are referring to the accused? aYes, sir. qAside from the accused, was there any other men who had sexual intercourse with you prior to October 1995? aNone, sir, he was the only one. q.Prior to the birth of your child, it was only your stepfather who had sexual intercourse with you?

aYes, sir. xxx xxx xxx qDo you have any boyfriend? aNone, sir. xxx xxx xxx
13

Mindful of the well-settled rule that findings of facts of the trial court are accorded great respect considering that the trial judge has observed the demeanor of the witnesses, the Court does not find any cogent reason to depart from such rule. The trial judge had these observations about the witness:
Rizalina was already 14 years old when she testified in Court. At the time she testified she was succinct in her declaration and appeared to the Court to be truthful. She had no reason to fabricate a story against the accused who supported her in her daily needs and spent for her education until she finished Grade 6. Ingratitude is not a trait common to a provincial child still innocent of the vicissitudes of life. 14

A witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent is a credible witness. 15 Since the trial court found Maria Rizalina's testimony to be credible and trustworthy, it was more than sufficient to sustain the accused-appellant's conviction. 16 The fact that the accused-appellant had carnal knowledge with the young victim is corroborated by the findings of Dr. Laila Patricio, who upon examination on November, 1995 found Maria Rizalina to be 6-7 months pregnant already. Maria Rizalina confided to her that her stepfather raped her. 17 This accusation was repeated when she was investigated by SPO3 Cesar Antolin at the Subic Police Station, Subic, Zambales, 18 and when she was interviewed by Social Welfare Officer II, Ana Ecle of the DSWD, Iba, Zambales. 19

When the accused-appellant was courting Nida Onciano, he was very aware that she had a daughter. Before they agreed to live together, he was made to understand that he had to accept and treat Maria Rizalina as his own daughter, too caring for her and providing for her education. 20 Since Maria Rizalina did not have a father, she regarded the accused-appellant as such. Even at her young age, she recognized the parental authority the accused-appellant had over her and in return, she gave the reverence and respect due him as a father.

Undeniably, there was moral ascendancy on the part of the accused-appellant over the victim. 21 In a rape committed by a father against the daughter, the former's moral ascendancy and influence over the latter substitutes for violence and intimidation. The experience has certainly caused great trauma on Maria Rizalina that she had to be committed to the National Center for Mental Health, Mandaluyong City to undergo psychological and medical treatment for severe depression. 22 The testimony of Dr. Dijamco, a psychiatrist at the National Center for Mental Health is quite revealing:
AAfter having gathered all the informations we have conceded and collated the data and we have agreed to come up with an impression as stated in the protocol or major depression, sir, and that it was advised that the patient be given medication and to undergo regular psycho therapy, sir. xxx xxx xxx
23

QNow, in your honest opinion, what could have been the cause of your findings that the patient Rizalina Onsiano suffered from major deppressive (sic) disorder? AAfter having a thorough study of the patient's case. We could only conclude that it was the abuser and the trauma that she underwent which led to her deppression (sic), her major and severe deppression (sic), sir. QBy the way, was she able to disclose to you on your initial interview with the patient Rizalina Onciano regarding the sexual abuse committed in her person? AInitially, sir, she had difficulty, she would cry, she would request that we change the topic, however, she was consistent in identifying the perpetrator of the crime, sir, or the accused. QNow, in your honest opinion as a psychiatrist, is it normal for a child not to tell or recall the sexual abuse committed on her person? AAn abuse is a trauma in itself. So, for a child not to remember is quite impossible. So, abuse especially if these abuses have taken quite a number of times or it happened several times, sir.

QBut is it normal for a child not to tell the details of the abuse committed in her person? AThere is a possibility, sir, especially when a threat comes along or for several reasons, sir, but it is possible does not disclose immediately that she has been sexually abused by some other people, sir. QWould you be able to give an example of what other factors that would prevent the child from disclosing or tell the abuse committed on her person? ASir, based on my observations and the cases I have handled for one it would be shame and the guilt since the patient underwent such trauma they feel that they are to be blamed that's why they don't tell, they feel that they have a part in the crime that's why they don't tell. For another reason, an important reason for not disclosing is the threat the perpetrator imposes on the victim. The threat to life, the threat to property, the threat to steal. Basically, those are the major reasons why a child or adolescent would not disclose immediately that she has been sexually molested. QWould you say the influence of the mother for being uncooperative with her in her fighting for her right, is one of the factor that would prevent the child from disclosing? AThere is a possibility, sir, since whenever a child is abused, it is not the child or the victim which is just affected. It is the entire family, the brothers, the sisters, the mother, the father, the entire family. Since their child is affected, so, the mother and the other relatives may have stayed in the child not disclosing about the attempts or the abuse, sir. QNow, in the case of Rizalina Onsiano, while she was presented by this representation, when this representation was about to ask her of the actual abuse committed on her person, she broke down and refused to talk. Is it normal, is that a normal behavior of Rizalina Onsiano? ABasically, prior to the commission of the crime, Rizalina was an upgrown child. Having undergone abuse for quite sometime, it is not easy for one to fully disclose what she underwent. There are times when the patient will be able to identify him just about that. Now, in Rizalina's case, I don't think it was normal. Basically,

it is a normal part wherein she would not automatically disclosed what happened. It would take time prior to full disclosure of such trauma, sir. QNow, later on, after she was discharged from the National Center for Mental Health specifally (sic) on January 23, 1997, when Rizalina Onsiano was presented again to testify on the abuse committed against her by the accused, her own stepfather, she was able to narrate the details of what happened to her, is that also normal? AThat proved, sir, that the therapy, the medication she took or that she underwent at the Center helped her in gradually dealing with the situation as such, sir, whenever she has to testify against her stepfather. The course she is undergoing right now is the effect of the treatment she has undergone at our Center. xxx xxx xxx
24

Accused-appellant denies having raped his stepdaughter alleging that it was quite impossible for him to have committed the crime "in broad daylight, in a small house, abundant with open windows and doors, peopled by six or seven mischievous and open-eyed curious souls keen with every unusual scenarios of members involving kins and idols like their fathers." 25 The Court sees no impossibility for the commission of this abominable act on the victim under the alleged circumstances. Many cases attest to the unfortunate fact that rape can be committed even in places where people congregate: in parks, along the roadside, within school premises and even inside a house where there are occupants. Lust is no respecter of time or place. 26 Furthermore, accused-appellant points to his sister-in-law, Evelyn Nallos as the person who allegedly pressured his stepdaughter to file the charges of rape against him considering an old grudge existing between the two of them. It can be recalled that Evelyn Nallos took care of two of their children who, unfortunately, died under her care, one died of meningitis and pneumonia and the other by drowning in a flood. To the defense, the deaths were plainly due to Evelyn's negligence. 27 Since then, their relationship was estranged. This contention deserves scant consideration. Ill motive is never an essential element of a crime. It becomes inconsequential in a case where there are affirmative, nay, categorical declarations towards the accused-appellant's accountability for the felony. 28 Maria Rizalina's straightforward and consistent testimony belies any claim of being pressured by her aunt to concoct a story of

defloration against the stepfather. Upon cross examination, she was quick to deny that her Tita Evelyn prompted her to report to the authorities about her physical condition and the person responsible thereof. 29 To the accused-appellant, it strains credulity why the victim never said anything about the incidents until the discovery by the mother on November 24, 1994 when she revealed that it was her stepfather who was responsible for her pregnancy.
aDcTHE

Delay in reporting the crime is understandable. It is not uncommon for young girls to conceal for some time the assaults on their virtue because of the rapist's threat on their lives. 30 The case at bar is no exception to these well-founded rule. Maria Rizalina never said anything to her mother of the many times the accused-appellant had sexually abused her for fear of her life. She was definitely afraid of her stepfather who threatened to kill her once she reports the matter to her mother. 31 Neither was there any medical impossibility to the commission of the crime as accused-appellant argues:
Granting "en gratia arguendo" that accused-appellant did the act complained of in September 1993, or the last act on October 28, 1995, it is medically impossible and contrary to the natural laws and religious belief. And, the medical books and hospital records is in dearth or paucity of four (4) months premature births. xxx xxx xxx . . . the turning point when the pregnancy became apparent and noticeable was a clear span or intereggnum (sic) of one (1) year and five (5) months from the month and year subject matter of this review (November 24, 1995) which logically coincides with the months that complainant gallivanted with the "barkada", but is off-tangent and is irreconcilable and medically and naturally impossible with the alleged commission of rape of September 1993. 32

This defense is unavailing. Maria Rizalina gave birth on February 23, 1996. She testified that she was raped several times by her stepfather. While she could hardly remember the exact dates of these instances, she only remembered the first time she was raped which was in September, 1993 when she was only 12 years old and was in Grade IV 33 and the last time was on October 28, 1995. Obviously, she could not have

conceived in September, 1993 because as she testified, she was not yet menstruating at that time. She started to have her menstruation when she was in Grade V 34 or in 1994. She denies going home late after school and is not fond of being out with friends. 35 Since she maintained that her stepfather raped her several times, the child was definitely conceived as a result of the rape between September, 1993 and October 28, 1995.

Given all these facts and circumstances, we rule with moral certainty that the accused-appellant is indeed guilty of the crimes. Accused-appellant was charged for violation of Section 5(b) of R.A. 7610 and Article 335 of the Revised Penal Code for rape which read as follows:
SECTION 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: "xxx xxx xxx "(b)Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, that when the victim is under twelve (12)

years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as

amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period;" 36 xxx xxx xxx ARTICLE 335When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: "1.By using force or intimidation;

"2.When the woman is deprived of reason or otherwise unconscious; and "3.When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. "The crime of rape shall be punished by reclusion perpetua." xxx xxx xxx

Anent the numerous informations filed, the trial court corrected the erroneous filing of these informations as it explained:
It will be noted, however, that for the same act committed on the same date by the accused on the same offended part, the accused stands charged with two offenses: for violation of Section 5, paragraph (b) of Republic Act 7610 and for rape committed through force and intimidation. Thus: (1) in Criminal Case Nos. 482-95 and 487-95, the accused was charged with rape and violation of Section 5 paragraph (b) of Republic Act 7610, respectively, committed on the same date, October 1995, when the victim was 13 years old and 9 months; (2) in Criminal Case Nos. 484-95 and 488-95, the Informations charged rape and violation of the same special law, respectively, committed on the same date, "September 1995, when the victim was 13 years and 9 months old; (3) in Criminal Case Nos. 483-95 and 489-95, the accused was charged with rape and violation of the same special law, respectively, committed in October 1995 when the child was 11 years and 10 months old; and (4) in Criminal Case Nos. 485-95 and 486-95, the accused was charged with rape and violation of the same special law, respectively, committed in September 1993 when the victim was 11 years and 9 months old.

Charging the accused with two different offenses for the same act committed on the same date against the said victim is erroneous as it is illegal, except where the law itself so allows. Section 5 (b) Republic Act 7610, however, does not so allow. The said law in fact provides that if the child is below 12 years old, the accused must be prosecuted under Article 335 of the Revised Penal Code. Conversely, if the child is above 12 years old but below 18 years old, then the accused must be prosecuted under Republic Act 7610 for the so called "child abuse. 37

The trial court correctly convicted the accused for Rape under Article 335 of the RPC in Criminal Case No. 485-95 for it was clearly proven that the accused had

carnal knowledge with the victim through force and intimidation on that fateful day in September, 1993. This was the first time the accused raped Maria Rizalina who was able to give a detailed account of this traumatic experience. She was below 12 years old at that time. While Maria Rizalina also testified that she was raped several times after September, 1993, the prosecution, however, failed to establish the material details as to the time, place, and manner by which these offenses were committed. There is still a need for proof beyond reasonable doubt that the offenses alleged in the informations were indeed committed. 38 Thus, the trial court acquitted the accused under Criminal Case Nos. 482-95, 483-95, 484-95, 486-95, 488-95, 489-95 for want of sufficient evidence. Aside from the first incident of rape, all what Maria Rizalina could say was that she was molested by the accused for the last time on October 28, 1995. Whether there was force and intimidation to qualify this incident as rape was, unfortunately, not proven. Nonetheless, there is no dispute that Maria Rizalina was sexually abused by the accused on this occasion. Hence, the trial court convicted the accused under Criminal Case No. 487-95 for violation of Sec. 5(b) of R.A. 7610 or the Child Abuse Law. In the case of People v. Larin, 39 the Court has explained that the elements of the offense penalized under the provision are as follows:
1.The accused commits the act of sexual intercourse or lascivious

conduct.

2.The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3.The child, whether male or female, is below 18 years of age. A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA 7610, children are "persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition." It must be noted that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in any lascivious conduct. Hence, the foregoing

provision penalizes not only child prostitution, the essence of which is profit, but also other forms of sexual abuse of children. This is clear from the deliberations of the Senate.

From the above disquisition, the accused is certainly guilty for sexual abuse committed on his stepdaughter, using his moral ascendancy in intimidating the victim to engage in sexual intercourse with him. The amount of damages must, however, be modified. In each of the cases, the trial court awarded the amount of P50,000 as civil indemnity, P100,000 for moral damages and another P100,000 as exemplary damages. In line with recent jurisprudence, the award of P50,000 as civil indemnity is in order regardless of proof. In addition to civil indemnity, moral damages may, likewise, be awarded without the need for proving the same in the amount not exceeding P50,000. 40 The award of exemplary damages must be deleted for lack of legal basis. 41 WHEREFORE, the Decision dated March 5, 1998 of the Regional Trial Court, Branch 75, Olongapo City is AFFIRMED with the MODIFICATION that the accused-appellant is ordered to pay the victim the amount of FIFTY THOUSAND PESOS (P50,000.000) as civil indemnity, FIFTY THOUSAND PESOS (P50,000.00) as moral damages in Crim. Case No. 485-95 and Crim. Case No. 487-95, the award of exemplary damages is deleted in the above criminal cases. SO ORDERED.

EN BANC
[G.R. No. 99327. May 27, 1993.] ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS, S.J., DEAN CYNTHIA ROXAS-DEL CASTILLO, JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE CLARO TESORO, RAMON CAGUIOA and RAMON ERENETA, petitioners, vs. HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-Makati, Br. 134 ZOSIMO MENDOZA, JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO SABBAN, DALMACIO LIM, JR., MANUEL ESCALONA and JUDE FERNANDEZ, respondents.

Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenez for petitioners. Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner Cynthia
Roxas-del Castillo.

Fabregas, Calida & Remollo for private respondents.

SYLLABUS 1.POLITICAL LAW; DUE PROCESS; REQUIREMENTS; MINIMUM STANDARD TO BE SATISFIED IN IMPOSING DISCIPLINARY SANCTION BY AN ACADEMIC INSTITUTION. Corollary to respondent students' contention of denial of due process is their argument that it is the Ang Tibay case [69 Phil. 635 (1940)] and not the Guzman case [142 SCRA 699], which is applicable in the case at bar. Though both cases essentially deal with the requirements of due process, the Guzman case is more apropos to the instant case, since the latter deals specifically with the minimum standards to be satisfied in the imposition of disciplinary sanctions in academic institutions, such as petitioner university herein, thus: "(1)the students must be informed in writing of the nature and cause of any accusation against them; (2) that they shall have the right to answer the charges against them with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case." 2.ID.; ID.; ID.; MINIMUM STANDARD SATISFIED IN CASE AT BAR. In view of the death of Leonardo Villa, petitioner Cynthia del Castillo, as Dean of the Ateneo Law School, notified and required respondent students on February 11, 1991 to submit within twenty-four hours their written statement on the incident, the records show that instead of filing a reply, respondent students requested through their counsel, copies of the charges. While some of the students mentioned in the February 11, 1991 notice duly submitted written statements, the others failed to do so. Thus, the latter were granted an extension of up to February 18, 1991 to file their statements. Indubitably, the nature and cause of the accusation were adequately spelled out in petitioners' notices dated February 14 and 20, 1991. It is to be noted that the February 20, 1991 letter which quoted Rule No. 3 of its Rules of Discipline as contained in the Ateneo Law School Catalogue was addressed individually to respondent students. Petitioners' notices/letters dated February 11, February 14 and 20 clearly show that respondent students were given ample opportunity to adduce evidence in their

behalf and to answer the charges leveled against them. The requisite assistance of counsel was met when, from the very start of the investigations before the Joint Administration-Faculty-Student Committee, the law firm of Gonzales Batiller and Bilog and Associates put in its appearance and filed pleadings in behalf of respondent students. 3.ID.; ID.; DISCIPLINARY CASES INVOLVING STUDENTS, ADMINISTRATIVE IN NATURE; RIGHT TO CROSS EXAMINE, NOT INVOLVED. Respondent students may not use the argument that since they were not accorded the opportunity to see and examine the written statements which became the basis of petitioners' February 14, 1991 order, they were denied procedural due process. Granting that they were denied such opportunity, the same may not be said to detract from the observance of due process, for disciplinary cases involving students need not necessarily include the right to cross examination. An administrative proceeding conducted to investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial proceeding. A closer examination of the March 2, 1991 hearing which characterized the rules on the investigation as being summary in nature and that respondent students have no right to examine affiants-neophytes, reveals that this is but a reiteration of our previous ruling in Alcuaz vs. PSBA, Q.C. Branch, 161 SCRA 20. 4.ID.; ID.; ID.; PROOF BEYOND REASONABLE DOUBT, NOT REQUIRED. With regard to the charge of hazing, respondent students fault petitioners for not explicitly defining the word "hazing" and allege that there is no proof that they were furnished copies of the 1990-91 Ateneo Law School Catalogue which prohibits hazing. Such flawed sophistry is not worthy of students who aspire to be future members of the Bar. It cannot be over-emphasized that the charge filed before the Joint Administration-Faculty-Student Investigating Committee and the Disciplinary Board is not a criminal case requiring proof beyond reasonable doubt but is merely administrative in character. As such, it is not subject to the rigorous requirements of criminal due process, particularly with respect to the specification of the charge involved. As we have had occasion to declare in previous cases of a similar nature, due process in disciplinary cases involving students does not entail proceedings and hearings identical to those prescribed for actions and proceedings in courts of justice. 34 Accordingly, disciplinary charges against a student need not be drawn with the precision of a criminal information or complaint. Having given prior notice to the students involved that "hazing" which is not defined in the School Catalogue shall be defined in accordance with Senate Bill No. 3815, the proposed bill on the subject of Sen. Jose Lina, petitioners have said what needs to be said. We deem this sufficient for purposes of the investigation under scrutiny.

5.ID.; ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES, EXCEPTION; CASE AT BAR. It is accepted legal doctrine that an exception to the doctrine of exhaustion of remedies is when the case involves a question of law, as in this case, where the issue is whether or not respondent students have been afforded procedural due process prior to their dismissal from petitioner university. 6.ID.; ACADEMIC FREEDOM CONSTRUED; CASE AT BAR. At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix Frankfurter in the term "academic freedom" cited in the case of Sweezy v. New Hampshire, 37 thus: (1) who may teach; (2) what may be taught; (3) how it shall be taught; and (4) who may be admitted to study. "Academic freedom", the term as it evolved to describe the emerging rights related to intellectual liberty, has traditionally been associated with freedom of thought, speech, expression and the press; in other words, with the right of individuals in university communities, such as professors, researchers and administrators, to investigate, pursue, discuss and, in the immortal words of Socrates, "to follow the argument wherever it may lead," free from internal and external interference or pressure. But obviously, its optimum impact is best realized where the freedom is exercised judiciously and does not degenerate into unbridled license. Early cases on this individual aspect of academic freedom have stressed the need for assuring to such individuals a measure of independence through the guarantees of autonomy and security of tenure. The components of this aspect of academic freedom have been categorized under the areas of: (1) who may teach and (2) how to teach. It is to be realized that this individual aspect of academic freedom could have developed only pari passu with its institutional counterpart. As corporate entities, educational institutions of higher learning are inherently endowed with the right to establish their policies, academic and otherwise, unhampered by external controls or pressure. In the Frankfurter formulation, this is articulated in the areas of: (1) what shall be taught, e.g., the curriculum and (2) who may be admitted to study. In an attempt to give an explicit definition with an expanded coverage, the Commissioners of the Constitutional Commission of 1986 came up with this formulation: "Academic freedom shall be enjoyed by students, by teachers, and by researchers." After protracted debate and ringing speeches, the final version which was none too different from the way it was couched in the previous two (2) Constitutions, as found in Article XIV, Section 5 (2) states: "Academic freedom shall be enjoyed in all institutions of higher learning." In anticipation of the question as to whether and what aspects of academic freedom are included herein, ConCom Commissioner Adolfo S. Azcuna explained: "Since academic freedom is a dynamic concept, we want to expand the frontiers of freedom, especially in education, therefore, we shall leave it to

the courts to develop further the parameters of academic freedom." While under the Education Act of 1982, students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution. [Section 9 (2) of Batas Pambansa Blg. 232, effective September 11, 1982]. "For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students. This right . . . extends as well to parents . . . as parents are under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the schools." (Yap Chin Fah v. Court of Appeals [Resolution], G.R. No. 90063, December 12, 1989) Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college. The rules may include those governing student discipline." Going a step further, the establishment of rules governing universitystudent relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.

7.REMEDIAL LAW; PROVISIONAL REMEDIES; TEMPORARY RESTRAINING ORDER; PROPER ISSUANCE THEREOF IN CASE AT BAR. respondent students argue that we erred in issuing a Temporary Restraining Order since petitioners do not stand to suffer irreparable damage in the event that private respondents are allowed to re-enroll. No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do. DECISION ROMERO, J :
p

In 1975, the Court was confronted with a mandamus proceeding to compel the Faculty Admission Committee of the Loyola School of Theology, a religious seminary which has a working arrangement with the Ateneo de Manila University regarding accreditation of common students, to allow petitioner who had taken some courses therein for credit during summer, to continue her studies. 1

Squarely meeting the issue, we dismissed the petition on the ground that students in the position of petitioner possess, not a right, but a privilege, to be admitted to the institution. Not having satisfied the prime and indispensable requisite of a mandamus proceeding since there is no duty, much less a clear duty, on the part of the respondent to admit the petitioner, the petition did not prosper. In support of its decision, the Court invoked academic freedom of institutions of higher learning, as recognized by the Constitution, the concept encompassing the right of a school to choose its students. Eighteen (18) years later, the right of a University to refuse admittance to its students, this time in Ateneo de Manila University proper, is again challenged. Whereas, in the Garcia case referred to in the opening paragraph, the individual concerned was not a regular student, the respondents in the case at bar, having been previously enrolled in the University, seek re-admission. Moreover, in the earlier case, the petitioner was refused admittance, not on such considerations as personality traits and character orientation, or even inability to meet the institution's academic or intellectual standards, but because of her behavior in the classroom. The school pointedly informed her that ". . . it would seem to be in your best interest to work with a Faculty that is more compatible with your orientations." On the other hand, students who are now being refused admission into petitioner University have been found guilty of violating Rule No. 3 of the Ateneo Law School Rules on Discipline which prohibits participation in hazing activities. The case attracted much publicity due to the death of one of the neophytes and serious physical injuries inflicted on another. Herein lies an opportunity for the Court to add another dimension to the concept of academic freedom of institutions of higher learning, this time a case fraught with social and emotional overtones. The facts which gave rise to this case which is far from novel, are as follows: As a requisite to membership, the Aquila Legis, a fraternity organized in the Ateneo Law School, held its initiation rites on February 8, 9 and 10, 1991, for students interested in joining its ranks. As a result of such initiation rites, Leonardo "Lennie" H. Villa, a first year student of petitioner university, died of serious physical injuries at the Chinese General Hospital on February 10, 1991. He was not the lone victim, though, for another freshman by the name of

Bienvenido Marquez was also hospitalized at the Capitol Medical Center for acute renal failure occasioned by the serious physical injuries inflicted upon him on the same occasion. In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo created a Joint Administration-Faculty-Student Investigating Committee 2 which was tasked to investigate and submit a report within 72 hours on the circumstances surrounding the death of Lennie Villa. Said notice also required respondent students to submit their written statements within twenty-four (24) hours from receipt. Although respondent students received a copy of the written notice, they failed to file a reply. In the meantime, they were placed on preventive suspension. 3 Through their respective counsels, they requested copies of the charges and pertinent documents or affidavits. In a notice dated February 14, 1991, the Joint Administration-Faculty-Student Investigating Committee, after receiving the written statements and hearing the testimonies of several witnesses, found a prima facie case against respondent students for violation of Rule 3 of the Law School Catalogue entitled "Discipline." 4 Respondent students were then required to file their written answers to the formal charge on or before February 18, 1991; otherwise, they would be deemed to have waived their right to present their defenses. On February 20, 1991, petitioner Dean created a Disciplinary Board composed of petitioners Judge Ruperto Kapunan, Justice Venicio Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty. Ferdinand Casis, to hear the charges against respondent students.
Cdpr

In a letter dated February 20, 1991, respondent students were informed that they had violated Rule No. 3 of the Rules on Discipline contained in the Law School Catalogue. Said letter also states: "The complaint/charge against you arose from participation in acts of hazing committed during the Aquila Legis initiations held on February 8-10, 1991. The evidence against you consist of testimonies of students, showing your participation in acts prohibited by the School regulations." Finally, it ordered respondent students to file their written answers to the above charge on or before February 22, 1991, otherwise they would be deemed to have waive their defense. 5

In a motion dated February 21, 1991, respondent students, through counsel, requested that the investigation against them be held in abeyance, pending action on their request for copies of the evidence against them. 6 Respondent students were then directed by the Board to appear before it at a hearing on February 28, 1991 to clarify their answers with regard to the charges filed by the investigating committee for violation of Rule No. 3. However, in a letter to petitioners dated February 27, 1991, counsel for respondent students moved to postpone the hearing from February 28, 1991 to March 1, 1991. 7 Subsequently, respondent students were directed to appear on March 2, 1991 for clarificatory questions. 8 They were also informed that:
a)The proceedings will be summary in nature in accordance with the rules laid down in the case ofGuzman vs. National University; 9 b)Petitioners have no right to cross-examine the affiants-neophytes; c)Hazing which is not defined in the School catalogue shall be defined in accordance with the proposed bill of Sen. Jose Lina, Senate Bill No. 3815; d)The Board will take into consideration the degree of participation of the petitioners in the alleged hazing incident in imposing the penalty; e)The Decision of the Board shall be appealable to the President of the University, i.e. Respondent Joaquin Bernas S. J.

On March 5, 1991, petitioner Bernas wrote Dean del Castillo that, "in cases where the Disciplinary Board is not prepared to impose the penalty of dismissal, I would prefer that the Board leave the decision on the penalty to the Administration so that this case be decided not just on the Law School level but also on the University level." 10 In a resolution dated March 9, 1991, the Board found respondent students guilty of violating Rule No. 3 of the Ateneo Law School Rules on Discipline which prohibits participation in hazing activities. The Board found that respondent students acted as master auxiliaries or "auxies" during the initiation rites of Aquila Legis, and exercised the "auxies privilege," which allows them to participate in the physical hazing. Although respondent students claim that they were there to assist and attend to the needs of the neophytes, actually they were assigned a definite supportive role to play in the organized activity. Their guilt was heightened by the fact that they made no effort to prevent the infliction

of further physical punishment on the neophytes under their care. The Board considered respondent students part and parcel of the integral process of hazing. In conclusion, the Board pronounced respondents guilty of hazing, either by active participation or through acquiescence. However, in view of the lack of unanimity among the members of the Board on the penalty of dismissal, the Board left the imposition of the penalty to the University Administration. 11 Petitioner Dean del Castillo waived her prerogative to review the decision of the Board and left to the President of the University the decision of whether to expel respondent students or not. Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin G. Bernas, as President of the Ateneo de Manila University, accepted the factual findings of the Board, thus: "that as Master Auxiliaries they exercised the 'auxie's privilege;' that even assuming that they did not lay hands on the neophytes," respondent students are still guilty in accordance with the principle that "where two or more persons act together in the commission of a crime, whether they act through the physical volition of one or of all, proceeding severally or collectively, each individual whose will contributes to the wrongdoing is responsible for the whole." Fr. Bernas, in describing the offense which led to the death of Leonardo Villa, concluded that the "offense of the respondents can be characterized as grave and serious, subversive of the goals of Christian education and contrary to civilized behavior." Accordingly, he imposed the penalty of dismissal on all respondent students. 12

In a resolution dated March 18, 1991 and concurred in by petitioner Fr. Bernas, 13 the Board excluded respondent students Abas and Mendoza from the coverage of the resolution of March 10, 1991, inasmuch as at the time the latter resolution was promulgated, neither had as yet submitted their case to the Board. Said resolution also set the investigation of the two students on March 21, 1991. On March 18, 1991, respondent students filed with the Regional Trial Court of Makati, a petition for certiorari, prohibition and mandamus with prayer for temporary restraining order and preliminary injunction 14 alleging that they were currently enrolled as students for the second semester of schoolyear 1990-91. Unless a temporary restraining order is issued, they would be prevented from taking their examinations. The petition principally centered on the alleged lack of due process in their dismissal.

On the same day, Judge Madayag issued a temporary restraining order enjoining petitioners from dismissing respondent students and stopping the former from conducting hearings relative to the hazing incident. 15 Hearings in connection with the issuance of the temporary restraining order were then held. On April 7, 1991, the temporary restraining order issued on March 18, 1991 lapsed. Consequently, a day after the expiration of the temporary restraining order, Dean del Castillo created a Special Board composed of Atty.(s) Jose Claro Tesoro, Ramon Caguioa, and Ramon Ereeta to investigate the charges of hazing against respondent students Abas and Mendoza. Respondent students reacted immediately by filing a Supplemental Petition of certiorari, prohibition and mandamus with prayer for a temporary restraining order and preliminary injunction, to include the aforesaid members of the Special Board, as additional respondents to the original petition. 16 Petitioners moved to strike out the Supplemental Petition arguing that the creation of the Special Board was totally unrelated to the original petition which alleged lack of due process in the conduct of investigations by the Disciplinary Board against respondent students; that a supplemental petition cannot be admitted without the same being set for hearing and that the supplemental petition for the issuance of a temporary restraining order will, in effect, extend the previous restraining order beyond its mandatory 20-day lifetime. 17 Acting on the urgent motion to admit the supplemental petition with prayer for a temporary restraining order, Judge Amin, as pairing judge of respondent Judge Capulong, granted respondent students' prayer on April 10, 1991. 18 On May 17, 1991, respondent Judge ordered petitioners to reinstate respondent students. Simultaneously, the court ordered petitioners to conduct special examinations in lieu of the final examinations which allegedly the students were not allowed to take, and enjoined them to maintain the status quo with regard to the cases of Adel Abas and Zosimo Mendoza pending final determination of the issues of the instant case. Lastly, it directed respondent students to file a bond in the amount of P50,000.00. 19 On the same date, May 17, 1991, the Special Board investigating petitioners Abas and Mendoza concluded its investigation. On May 20, 1991, it imposed the penalty of dismissal on respondent students Adel Abas and Zosimo Mendoza and directed the dropping of their names from its roll of students. 20

The following day or on May 21, 1991, respondent judge issued the writ of preliminary injunction upon posting by respondent students of a bond dated May 17, 1991 in the amount of P50,000.00. Hence, this special civil action of certiorari under Rule 65 with prayer for the issuance of a temporary restraining order questioning the order of respondent judge reinstating respondent students dated May 17, 1991. On May 30, 1991, this Court issued a temporary restraining order enjoining the enforcement of the May 17, 1991 order of respondent judge. 21 In the case at bar, we come to grips with two relevant issues on academic freedom, namely: (1) whether a school is within its rights in expelling students from its academic community pursuant to its disciplinary rules and moral standards; and (2) whether or not the penalty imposed by the school administration is proper under the circumstances.
Cdpr

We grant the petition and reverse the order of respondent judge ordering readmission of respondent students. Respondent judge committed grave abuse of discretion when he ruled that respondent students had been denied due process in the investigation of the charges against them. It is the threshold argument of respondent students that the decision of petitioner Fr. Joaquin Bernas, S. J., then President of the Ateneo de Manila University, to expel them was arrived at without affording them their right to procedural due process. We are constrained to disagree as we find no indication that such right has been violated. On the contrary, respondent students' rights in a school disciplinary proceeding, as enunciated in the cases of Guzman v. National University, 22 Alcuaz v PSBA, Q.C. Branch 23 and Non v. Dames II 24 have been meticulously respected by petitioners in the various investigative proceedings held before they were expelled. Corollary to their contention of denial of due process is their argument that it is the Ang Tibay case 25 and not theGuzman case which is applicable in the case at bar. Though both cases essentially deal with the requirements of due process, the Guzman case is more apropos to the instant case, since the latter deals specifically with the minimum standards to be satisfied in the imposition of disciplinary sanctions in academic institutions, such as petitioner university herein, thus:
"(1)the students must be informed in writing of the nature and cause of any accusation against them; (2) that they shall have the right to answer the charges against them with the assistance of counsel, if

desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case." 26

It cannot seriously be asserted that the above requirements were not met. When, in view of the death of Leonardo Villa, petitioner Cynthia del Castillo, as Dean of the Ateneo Law School, notified and required respondent students on February 11, 1991 to submit within twenty-four hours their written statement on the incident, 27 the records show that instead of filing a reply, respondent students requested through their counsel, copies of the charges. 28 While some of the students mentioned in the February 11, 1991 notice duly submitted written statements, the others failed to do so. Thus, the latter were granted an extension of up to February 18, 1991 to file their statements. 29 Indubitably, the nature and cause of the accusation were adequately spelled out in petitioners' notices dated February 14 and 20, 1991. 30 It is to be noted that the February 20, 1991 letter which quoted Rule No. 3 of its Rules of Discipline as contained in the Ateneo Law School Catalogue was addressed individually to respondent students. Petitioners' notices/letters dated February 11, February 14 and 20 clearly show that respondent students were given ample opportunity to adduce evidence in their behalf and to answer the charges leveled against them. The requisite assistance of counsel was met when, from the very start of the investigations before the Joint Administration-Faculty-Student Committee, the law firm of Gonzales Batiller and Bilog and Associates put in its appearance and filed pleadings in behalf of respondent students. Respondent students may not use the argument that since they were not accorded the opportunity to see and examine the written statements which became the basis of petitioners' February 14, 1991 order, they were denied procedural due process. 31 Granting that they were denied such opportunity, the same may not be said to detract from the observance of due process, for disciplinary cases involving students need not necessarily include the right to cross examination. An administrative proceeding conducted to investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial proceeding. A closer examination of the March 2, 1991 hearing which characterized the rules on the investigation as being summary in nature and that respondent students have no right to examine affiants-neophytes, reveals that this is but a reiteration of our previous ruling in Alcuaz. 32

Respondent students' contention that the investigating committee failed to consider their evidence is far from the truth because the February 14, 1992 order clearly states that it was reached only after receiving the written statements and hearing the testimonies of several witnesses. 33 Similarly, the Disciplinary Board's resolution dated March 10, 1991 was preceded by a hearing on March 2, 1991 wherein respondent students were summoned to answer clarificatory questions.
prcd

With regard to the charge of hazing, respondent students fault petitioners for not explicitly defining the word "hazing" and allege that there is no proof that they were furnished copies of the 1990-91 Ateneo Law School Catalogue which prohibits hazing. Such flawed sophistry is not worthy of students who aspire to be future members of the Bar. It cannot be over-emphasized that the charge filed before the Joint Administration-Faculty-Student Investigating Committee and the Disciplinary Board is not a criminal case requiring proof beyond reasonable doubt but is merely administrative in character. As such, it is not subject to the rigorous requirements of criminal due process, particularly with respect to the specification of the charge involved. As we have had occasion to declare in previous cases of a similar nature, due process in disciplinary cases involving students does not entail proceedings and hearings identical to those prescribed for actions and proceedings in courts of justice. 34 Accordingly, disciplinary charges against a student need not be drawn with the precision of a criminal information or complaint. Having given prior notice to the students involved that "hazing" which is not defined in the School Catalogue shall be defined in accordance with Senate Bill No. 3815, the proposed bill on the subject of Sen. Jose Lina, petitioners have said what needs to be said. We deem this sufficient for purposes of the investigation under scrutiny.

Hazing, as a ground for disciplining a student, to the extent of dismissal or expulsion, finds its raison d' etre in the increasing frequency of injury, even death, inflicted upon the neophytes by their insensate "masters." Assuredly, it passes the test of reasonableness and absence of malice on the part of the school authorities. Far from fostering comradeship and esprit d' corps, it has merely fed upon the cruel and baser instincts of those who aspire to eventual leadership in our country. Respondent students argue that petitioners are not in a position to file the instant petition under Rule 65 considering that they failed to file a motion for

reconsideration first before the trial court, thereby bypassing the latter and the Court of Appeals. 3 5 It is accepted legal doctrine that an exception to the doctrine of exhaustion of remedies is when the case involves a question of law, 36 as in this case, where the issue is whether or not respondent students have been afforded procedural due process prior to their dismissal from petitioner university. Lastly, respondent students argue that we erred in issuing a Temporary Restraining Order since petitioners do not stand to suffer irreparable damage in the event that private respondents are allowed to re-enroll. No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do. More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitutions. At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix Frankfurter in the term "academic freedom" cited in the case of Sweezy v. New Hampshire, 37 thus: (1) who may teach; (2) what may be taught; (3) how it shall be taught; and (4) who may be admitted to study.
LibLex

Socrates, the "first of the great moralists of Greece," proud to claim the title "gadfly of the State," has deservedly earned for himself a respected place in the annals of history as a martyr to the cause of free intellectual inquiry. To Plato, this great teacher of his was the "best, the most sensible, and the most just man of his age." In 399 B.C., he willingly quaffed the goblet of hemlock as punishment for alleged "corruption" of the youth of Athens. He describes in his own words how this charge of "corruption," the forerunner of the concept of academic freedom, came about:
"Young men of the richer classes, who have not much to do, come about me of their own accord: they like to hear the pretenders examined, and they often imitate me, and examine others themselves; there are plenty of persons, as they soon discover, who think that they know something, but really know little or nothing; and then those who are examined by them, instead of being angry with themselves are angry with me. This confounded Socrates, they say; this villainous misleader of youth. And then if somebody asks them, Why, what evil

does he practice or teach? they do not know, and cannot tell; but in order that they may not appear to be at a loss, they repeat the readymade charges which are used against all philosophers about teaching things up in the clouds and under the earth, and having no gods, and making the worse appear the better cause; for they do not like to confess that their pretense of knowledge has been detected which is the truth; and as they are numerous and ambitious and energetic, and are all in battle array and have persuasive tongues, they have filled your ears with their loud and inveterate calumnies." 38

Since Socrates, numberless individuals of the same heroic mold have similarly defied the stifling strictures of authority, whether State, Church, or various interest groups, to be able to give free rein to their ideas. Particularly odious were the insidious and blatant attempts at thought control during the time of the Inquisition until even the Medieval universities, renowned as intellectual centers in Europe, gradually lost their autonomy. In time, such noble strivings, gathering libertarian encrustations along the way, were gradually crystallized in the cluster of freedoms which awaited the champions and martyrs of the dawning modern age. This was exemplified by the professors of the new German universities in the 16th and 17th centuries such as the Universities of Leiden (1575), Helmstadt (1574) and Heidelberg (1652). The movement back to freedom of inquiry gained adherents among the exponents of fundamental human rights of the 19th and 20th centuries. "Academic freedom", the term as it evolved to describe the emerging rights related to intellectual liberty, has traditionally been associated with freedom of thought, speech, expression and the press; in other words, with the right of individuals in university communities, such as professors, researchers and administrators, to investigate, pursue, discuss and, in the immortal words of Socrates, "to follow the argument wherever it may lead," free from internal and external interference or pressure. But obviously, its optimum impact is best realized where the freedom is exercised judiciously and does not degenerate into unbridled license. Early cases on this individual aspect of academic freedom have stressed the need for assuring to such individuals a measure of independence through the guarantees of autonomy and security of tenure. The components of this aspect of academic freedom have been categorized under the areas of: (1) who may teach and (2) how to teach. It is to be realized that this individual aspect of academic freedom could have developed only pari passu with its institutional counterpart. As corporate entities,

educational institutions of higher learning are inherently endowed with the right to establish their policies, academic and otherwise, unhampered by external controls or pressure. In theFrankfurter formulation, this is articulated in the areas of: (1) what shall be taught, e.g., the curriculum and (2) who may be admitted to study. In the Philippines, the Acts which were passed with the change of sovereignty from the Spanish to the American government, namely, the Philippine Bill of 1902 and the Philippine Autonomy Act of 1916 made no mention of the rights now subsumed under the catch-all term of "academic freedom." This is most especially true with respect to the institutional aspect of the term. It had to await the drafting of the Philippine Constitutions to be recognized as deserving of legal protection. The breakthrough for the concept itself was found in Section 5 of the 1935 Constitution which stated: "Universities established by the State shall enjoy academic freedom." The only State university at that time, being the University of the Philippines, the Charter was perceived by some as exhibiting rank favoritism for the said institution at the expense of the rest.
prcd

In an attempt to broaden the coverage of the provision, the 1973 Constitution provided in its Section 8 (2): "All institutions of higher learning shall enjoy academic freedom." In his interpretation of the provision, former U.P. President Vicente G. Sinco, who was also a delegate to the 1971 Constitutional Convention, declared that it "definitely grants the right of academic freedom to the University as an institution as distinguished from the academic freedom of a university professor." 39 Has the right been carried over to the present Constitution? In an attempt to give an explicit definition with an expanded coverage, the Commissioners of the Constitutional Commission of 1986 came up with this formulation: "Academic freedom shall be enjoyed by students, by teachers, and by researchers." After protracted debate and ringing speeches, the final version which was none too different from the way it was couched in the previous two (2) Constitutions, as found in Article XIV, Section 5 (2) states: "Academic freedom shall be enjoyed in all institutions of higher learning." In anticipation of the question as to whether and what aspects of academic freedom are included herein, ConCom Commissioner Adolfo S. Azcuna explained: "Since academic freedom is a dynamic concept, we want to expand the frontiers of freedom, especially in education, therefore, we shall leave it to the courts to develop further the parameters of academic freedom." 40

More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When we speak of the sentence 'academic freedom shall be enjoyed in all institutions of higher learning,' do we mean that academic freedom shall be enjoyed by the institution itself?" Azcuna replied: "Not only that, it also includes . . ." Gascon finished off the broken thought, "the faculty and the students." Azcuna replied: "Yes." Since Garcia v. Loyola School of Theology, 41 we have consistently upheld the salutary proposition that admission to an institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student rather than a right. While under the Education Act of 1982, students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution. 42 "For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students. This right . . . extends as well to parents . . . as parents are under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the schools." 43 Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college. The rules may include those governing student discipline." 44 Going a step further, the establishment of rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the students demanded and plucked for themselves from the panoply of academic freedom their own rights encapsulized under the rubric of "right to education" forgetting that, in Hohfeldian terms, they have a concomitant duty, and that is, their duty to learn under the rules laid down by the school. Considering that respondent students are proud to claim as their own a Christian school that includes Theology as part of its curriculum and assiduously strives to turn out individuals of unimpeachable morals and integrity in the mold of the

founder of the order of the Society of Jesus, St. Ignatius of Loyola, and their God-fearing forbears, their barbaric and ruthless acts are the more reprehensible. It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will, of the total man. In essence, education must ultimately be religious not in the sense that the founders or charter members of the institution are sectarian or profess a religious ideology. Rather, a religious education, as the renowned philosopher Alfred North Whitehead said, is "an education which inculcates duty and reverence." 45 It appears that the particular brand of religious education offered by the Ateneo de Manila University has been lost on the respondent students. Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them.
cdphil

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The maintenance of a morally conducive and orderly educational environment will be seriously imperilled if, under the circumstances of this case, Grace Christian is forced to admit petitioner's children and to reintegrate them to the student body." 46 Thus, the decision of petitioner university to expel them is but congruent with the gravity of their misdeeds. That there must be such a congruence between the offense committed and the sanction imposed was stressed in Malabanan v. Ramento. 47 Having carefully reviewed the records and the procedure followed by petitioner university, we see no reason to reverse its decision founded on the following undisputed facts: that on February 8, 9 and 10, 1991, the Aquila Legis Fraternity conducted hazing activities; that respondent students were present at the hazing as auxiliaries, and that as a result of the hazing, Leonardo Villa died from serious physical injuries, while Bienvenido Marquez was hospitalized. In light of the vicious acts of respondent students upon those whom ironically they would claim as "brothers" after the initiation rites, how can we countenance the imposition of such nominal penalties as reprimand or even suspension? We, therefore, affirm petitioners' imposition of the penalty of dismissal upon respondent students. This finds authority and justification in Section 146 of the Manual of Regulations for Private Schools. 48

WHEREFORE, the instant petition is GRANTED; the order of respondent Judge dated May 17, 1991 reinstating respondent students into petitioner university is hereby REVERSED. The resolution of petitioner Joaquin Bernas S. J., then President of Ateneo de Manila University dated March 10, 1991, is REINSTATED and the decision of the Special Board DISMISSING respondent students ADEL ABAS and ZOSIMO MENDOZA dated May 20, 1991 is hereby AFFIRMED. SO ORDERED.

SECOND DIVISION
[G.R. No. 177580. October 17, 2008.] OFFICE OF THE OMBUDSMAN, petitioner, vs. VICTORIO N. MEDRANO, respondent. DECISION CARPIO-MORALES, J :
p

Challenged via Petition for Review on Certiorari are the Decision 1 dated June 29, 2006 and Resolution dated April 2, 2007 of the Court of Appeals in CA-G.R. SP No. 93165 2 which nullified the Decision dated July 19, 2004 of the Office of the Ombudsman (petitioner), as modified, finding Victorio N. Medrano (respondent) guilty of sexual harassment in the administrative complaint against him and dismissed the said complaint for lack of jurisdiction.
cSCADE

Sometime in May 2003, Ma. Ruby A. Dumalaog (Ma. Ruby), a teacher at Jacobo Z. Gonzales Memorial National High School in Bian, Laguna (the school), filed a sworn letter-complaint 3 before the Office of the Ombudsman (for Luzon) charging her superior herein respondent, Officer-In-Charge (OIC) of the school and concurrently the principal of San Pedro Relocation Center National High School in San Pedro, Laguna, with (1) violation of Republic Act (R.A.) No. 7877(Anti-Sexual Harassment Act of 1995), docketed as OMB-L-C-03-0613-E (criminal case), and (2) grave misconduct, docketed as OMB-L-A-03-0488-E (administrative case).

The administrative complaint, in essence, alleged that in the afternoon of March 28, 2003, respondent made sexual advances on Ma. Ruby and abused her sexually. In his Counter-Affidavit, 4 respondent denied the charge, claiming that it was "maliciously designed to harass and threaten him to succumb to Ma. Ruby's demand that she be given a regular teaching post." He thus prayed for the dismissal of the complaint. While the administrative case was pending investigation, Ma. Ruby filed an Urgent Ex-Parte Motion for Preventive Suspension, 5 alleging that respondent was "using the powers of his office by utilizing his subordinates in harassing her." By Order 6 of July 29, 2003, petitioner granted the motion and ordered the preventive suspension of respondent for six (6) months without pay. Respondent, this time assisted by counsel, Atty. Alan P. Cabaero, moved for the lifting of the preventive suspension Order on the ground that the evidence of his guilt is not strong. 7 It was denied. Undaunted, respondent filed a Supplemental Motion for Reconsideration 8 alleging that the Schools Division Superintendent Lilia T. Reyes had already designated Hereberto Jose D. Miranda as the new OIC of the school in his stead, effective September 1, 2003. By Order 9 of October 16, 2003, petitioner lifted the preventive suspension Order.
DIEAHc

By Decision 10 of July 19, 2004 rendered in the administrative case, petitioner adjudged respondent guilty of grave misconduct and imposed upon him the penalty of dismissal from the service. With respect to the criminal case, petitioner, by Resolution 11 of July 19, 2004, found probable cause to indict respondent for violation of the Anti-Sexual Harassment Act of 1995. An information for violation of said Act, docketed as Criminal Case No. 29190 before the Metropolitan Trial Court (MeTC) of Bian, Laguna, was in fact filed. Respondent moved for reconsideration of petitioner's issuances in both cases. Respecting the administrative case, 12he assailed not only the factual findings and conclusions of petitioner, but, for the first time, he challenged its jurisdiction over the case. He argued that under Section 9 of R.A. No. 4670 (the Magna Carta for Public School Teachers), anadministrative complaint against a public school teacher should be heard by an investigating committee of the Department of Education Culture & Sports, now Department of Education (DepEd), composed

of the school superintendent of the division where the teacher belongs, a representative from a teachers' organization, and a supervisor of the division. He thus prayed for the dismissal of the administrative case as petitioner has no jurisdiction over it. By Joint Order 13 of April 8, 2005, petitioner affirmed its Resolution in the criminal case but modified its Decision in the administrative case by finding respondent guilty of sexual harassment, instead of grave misconduct, and meted on him the penalty of suspension from the service for one (1) year, without pay. Dissatisfied, respondent filed a Petition for Review (with prayer for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction) 14 before the Court of Appeals, assailing petitioner's decision in the administrative case, attributing to it grave abuse of discretion amounting to lack or excess of jurisdiction when it
I . . . assumed jurisdiction over the administrative case against petitioner, although under R.A. 4670, otherwise known as the Magna Carta for Public School Teachers, only the appropriate committee of the Department of Education has exclusive jurisdiction to hear and try administrative complaints against public school teachers.
ICAcaH

II . . . denied him his right to present before the Graft Investigation Officer the text messages sent by complainant which would have established the fact that the sexual harassment charge did not actually happen. . . . III . . . totally ignored his overwhelming evidence positively establishing his presence in another place at the time the alleged acts of sexual harassment were committed against complainant. IV . . . found him guilty of sexual harassment and imposed upon him the penalty of one (1) year suspension from the service. 15 (Underscoring supplied)

By the now assailed Decision of June 29, 2006, the appellate court annulled petitioner's July 19, 2004 Decision, as modified, in the administrative case and dismissed the complaint on the sole ground that petitioner has no jurisdiction over it. It held that although respondent raised the issue of jurisdiction only after petitioner rendered an adverse decision, "the rule on estoppel will not apply against [Medrano]" because such jurisdictional issue was raised "when the case was still before the Ombudsman". 16 It thus found no need to address the other issues raised by respondent. Petitioner's Motion for Reconsideration 17 of the appellate court's Decision was denied by Resolution 18 of April 2, 2007, hence, the present Petition for Review on Certiorari. Petitioner contends that the Court of Appeals erred in not ruling that it (petitioner) has concurrent jurisdiction with the DepEd over the administrative complaint against respondent. 19 Instead of filing a comment on the present petition as directed, respondent filed a Manifestation With Motion In Lieu Of Comment 20 praying that "the instant petition be dismissed for being moot and academic" in view of the execution of an Affidavit of Desistance 21 by Ma. Ruby on September 17, 2007 before Assistant Provincial Prosecutor Ramonito Delfin of Bian, Laguna, as well as the Order 22 of even date issued by the MeTC of Bian dismissing the criminal case 23 against him due to her lack of interest to prosecute the case.
ITCHSa

In her Affidavit of Desistance, Ma. Ruby stated, inter alia:

2.That in retrospect and after an objective and sincere review of the events that led to the filing of the instant cases [referring to the criminal and administrative cases], I am now fully enlightened that said incident was just a product of mistake of fact and clear misunderstanding between me and the accused/respondent, who after all, was not actually criminally nor immorally motivated to do any form of offense/harm to my person. Thus, I am now retracting everything I said against the accused/respondent in my letter-complaintwith the Office of the Ombudsman dated May 13, 2003, which became the basis for the filing of the criminal and administrative cases against him; 3.That . . ., I am no longer interested in pursuing the criminal and administrative cases I filed against Mr. Victorio N. Medrano, and is now requesting the Honorable Court [referring to the trial court in the criminal case], the Office of the Ombudsman or the Honorable Supreme

Court with whom the administrative case is pending, to dismiss the said cases. (Underscoring supplied)

Petitioner opposes respondent's move, contending that Ma. Ruby's Affidavit of Desistance and the dismissal of the criminal case do not constitute legal bases for dismissing the present petition and the administrative complaint. The issues for resolution are:
1.Whether the petition has become moot and academic, Ma. Ruby having executed an affidavit of desistance and the criminal case having been dismissed due to her lack of interest to prosecute the same; 2.Whether petitioner has jurisdiction over the administrative complaint against respondent; and 3.Whether respondent is estopped to question petitioner's assumption of jurisdiction over the administrative complaint.
AIDTHC

With respect to the first issue, the Court holds in the negative. The flaw in respondent's argument that the execution of Ma. Ruby's Affidavit of Desistance and the dismissal of the criminal case must result in the dismissal of the administrative case is that it ignores the whale of a difference between those two remedies. In Gerardo R. Villaseor and Rodel A. Mesa v. Sandiganbayan and

Louella Mae Oco-Pesquerra (Office of the Special Prosecutor, Ombudsman), 24 the Court stressed the distinct and independent character of
the remedies available to an offended party against any impropriety or wrongdoing committed by a public officer, thus:

Significantly, there are three kinds of remedies available against a public officer for impropriety in the performance of his powers and the discharge of his duties: (1) civil, (2) criminal, and (3) administrative. These remedies may be invoked separately, alternately, simultaneously or successively. Sometimes, the same offense may be the subject of all three kinds of remedies.

Defeat of any of the three remedies will not necessarily preclude resort to other remedies or affect decisions reached thereat, as different degrees of evidence are required in these several actions. In criminal cases, proof beyond reasonable doubt is needed, whereas a mere

preponderance of evidence will suffice in civil cases. In administrative cases, only substantial evidence is required. It is clear, then, that criminal and administrative cases are distinct from each other. The settled rule is that criminal and civil cases are altogether different from administrative matters, such that the first two will not inevitably govern or affect the third and vice versa. Verily, administrative cases may proceed independently of the criminal proceedings. (Underscoring supplied)

At any rate, an affidavit of desistance (or recantation) is, as a rule, viewed with suspicion and reservation because it can easily be secured from a poor and ignorant witness, usually through intimidation or for monetary consideration. 25 And there is always the probability that it would later be repudiated, and criminal prosecution would thus be interminable. 26Hence, such desistance, by itself, is not usually a ground for the dismissal of an action once it has been instituted in court. 27
CIaDTE

The suspicious and unreliable nature of Ma. Ruby's Affidavit of Desistance is evident. Firstly, her affidavit was executed only on September 17, 2007 or more than three (3) years after petitioner had rendered its July 19, 2004 Decision, as modified by its Joint Order of April 8, 2005 finding respondent guilty of sexual harassment. Secondly, unlike her six-page sworn letter-complaint of May 13, 2003 wherein she narrated in her own Pilipino dialect the factual details of respondent's acts complained of, Ma. Ruby's one-page Affidavit of Desistance is couched in English with legal terms andconclusions only one with a trained legal mind can formulate, e.g., "I am now fully enlightened that said incident was just a product of mistake of fact and clear misunderstanding between me and the accused/respondent, who after all, was not actually criminally nor immorally motivated to do any form of offense/harm to my person." Thirdly, Ma. Ruby's Affidavit is bereft of any factual particulars, engendering more questions that bolster its unreliability, e.g.: What was the "misunderstanding" between her and respondent? How was she "fully enlightened" about the whole incident? How did she arrive at her conclusion that he "was not actually criminally nor immorally motivated to do any form of offense/harm" against her person? In fine, the bases of respondent's plea to have the present petition dismissed do not obliterate his liability in the administrative case subject of the present petition.

In resolving the second issue whether petitioner has jurisdiction over the administrative complaint against respondent it is necessary to examine the source, nature and extent of the power and authority of the Ombudsman vis-vis the provisions of the Magna Carta for Public School Teachers. Section 5, Article XI of the Constitution "created the independent Office of the Ombudsman." Hailed as the "protectors of the people", the Ombudsman and his Deputies are bestowed with overreaching authority, powers, functions, and duties to act on complaints against public officials and employees, as provided in Sections 12 and 13 thereof, thus:
Sec. 12.The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.
SCaITA

Sec. 13.The Office of the Ombudsman shall have the following powers, functions, and duties: (1)Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; (2)Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties; (3)Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; (4)Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action;

(5)Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents; (6)Publicize matters covered by its investigation when circumstances so warrant and with due prudence; (7)Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency; and (8)Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Underscoring supplied)
cCAaHD

The above enumeration of the Ombudsman's far-reaching powers is not exclusive as the framers of the Constitution gave Congress the leeway to prescribe, by subsequent legislation, additional powers, functions or duties to the Ombudsman, as mandated in Section 13 (8), quoted above. Pursuant to the constitutional command, Congress enacted R.A. No. 6770 (The Ombudsman Act of 1989) providing for the functional, structural organization, and the extent of the administrative disciplinary authority of the petitioner. 28 The provisions of this law "apply to all kinds of malfeasance, misfeasance, and nonfeasance" committed by any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, "during his tenure in office." 29 The acts or omissions which the petitioner may investigate are quite extensive:
SEC. 19.Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: (1)Are contrary to law or regulation; (2)Are unreasonable, unfair, oppressive or discriminatory; (3)Are inconsistent with the general course of an agency's functions, though in accordance with law;
DTEScI

(4)Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5)Are in the exercise of discretionary powers but for an improper purpose; or (6)Are otherwise irregular, immoral or devoid of justification.

Its mandate is not only to "act promptly on complaints" against such public officers or employees, but also to "enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people." 30 R.A. No. 6770, however, restrains the petitioner from exercising its disciplinary authority "over officials who may be removed only by impeachment or over Members of Congress and the Judiciary", thus:
SEC. 21.Officials Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall havedisciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress and the Judiciary. SEC. 22.Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. (Underscoring supplied)
AcHaTE

The above constitutional and statutory provisions taken together reveal the manifest intent of the lawmakers to bestow upon the petitioner full administrative disciplinary power over public officials and employees except those impeachable officials, Members of Congress and of the Judiciary. When an administrative charge is initiated against a public school teacher, however, Section 9 of the Magna Carta for Public School Teachers specifically

provides that the same shall be heard initially by an investigating committeecomposed of the school superintendent of the division, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers' organization, and a supervisor of the division, as members, thus:
SEC. 9.Administrative Charges. Administrative charges against a teacher shall be heard initially by acommittee composed of the corresponding Schools Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers' organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools.The committee shall submit its findings and recommendations to the Director of Public Schools within thirty days from termination of the hearings; Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. (Underscoring supplied)

In Fabella v. Court of Appeals,

31

the Court held:

The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School Teachers, whichspecifically covers administrative proceedings involving public schoolteachers. Section 9 of said law expressly provides that the committee to hear public schoolteachers' administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers' organization, and a supervisor of the division. . . . . xxx xxx xxx The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public schoolteachers. . . . . (Emphasis and underscoring supplied)
EcDTIH

Significantly, The Ombudsman Act of 1989 recognizes the existence of some "proper disciplinary authorit[ies]", such as the investigating committee of the DepEd mentioned in Section 9 of the Magna Carta for Public School Teachers. Thus, Section 23 of The Ombudsman Act of 1989 directs that the petitioner

"may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees." 32 In light of this, the Court holds that the administrative disciplinary authority of the Ombudsman over a public school teacher is not an exclusive power but is concurrent with the proper committee of the DepEd. In the instant case, respondent, although designated as then OIC of a public school and concurrently the school principal of another public school, is undoubtedly covered by the definition of the term "teacher" under the second paragraph of Section 2 of the Magna Carta for Public School Teachers which provides:
SEC 2.Title Definition. This Act shall . . . apply to all public school teachers except those in the professorial staff of state colleges and universities. As used in this Act, the term 'teacher' shall mean all persons engaged in the classroom, in any level of instruction; on full time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees. (Underscoring supplied)

Thus, the administrative complaint against respondent should have been referred by petitioner to the proper committee of the DepEd for the institution of appropriate administrative proceedings, in light of Section 23 of The Ombudsman Act of 1989. This brings the Court to the third issue. While petitioner should have desisted from hearing the administrative complaint against respondent and referred it to the proper DepEd committee, given that it had already concluded the proceedings and had rendered a decision thereon, respondent is now barred from assailing petitioner's acts under the principle ofestoppel. He had actively participated in the administrative proceedings before petitioner. In his Counter-Affidavit, heasked petitioner for affirmative relief by seeking the dismissal of the administrative complaint allegedly for being baseless. 33 From then on, he was assisted by counsel in filing several motions. When he was

preventively suspended for six months without pay, he filed a Motion for Reconsideration praying that "a new Order be issued reversing or setting aside the preventive suspension Order." 34 When this was denied, he again filed a Supplemental Motion for Reconsideration 35 for the lifting of his suspension since he was already replaced as OIC, which motion was granted. It was only after petitioner had rendered an adverse Decision that he, in a Motion for Reconsideration, impugned petitioner's assumption of jurisdiction over his case. Verily, respondent cannot be permitted to challenge petitioner's acts belatedly.
ADCEaH

In applying the principle of estoppel in Alcala v. Villar,

36

the Court held:

Respondent Jovencio D. Villar is the School Principal of Lanao National High School, Pilar, Cebu City. In February 1998, . . ., teachers of Lanao National High School, . . ., filed with the Office of the Ombudsman an administrative complaint against respondent for dishonesty. xxx xxx xxx On June 22, 1999, the Office of the Ombudsman issued a resolution finding respondent guilty of dishonesty and dismissing him from the service. . . . . On appeal, the Court of Appeals nullified and set aside the decision of the Office of the Ombudsman on the ground that the latter was without jurisdiction over the administrative complaints against public school teachers. It ruled that the governing law is Republic Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, and not Republic Act No. 6770, the Ombudsman Act of 1989. . . . . xxx xxx xxx . . ., in Fabella v. Court of Appeals, it was ruled that R.A. No. 4670, the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. . . . .
DCScaT

xxx xxx xxx The foregoing notwithstanding, the Court of Appeals erred when it nullified the proceedings before the Office of the Ombudsman. . . . . In Emin v. De Leon, a public school teacher was administratively charged with and found guilty of dishonesty under P.D. No. 807 (Civil Service Law). The Supreme Court ruled that R.A. No. 4670, the Magna Carta for Public School Teachers, is the applicable law and that the Civil

Service Commission does not have jurisdiction over the administrative case. Nevertheless, the Court affirmed the dismissal from the service of the public school teacher as the latter was found to have been sufficiently afforded due process. . . . . Thus However, at this late hour, the proceedings conducted by the public respondent CSC can no longer be nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is now barred from impugning the CSC's jurisdiction over his case. xxx xxx xxx As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them. . . . . Notably, in his Counter-Affidavit, petitioner himself invoked the jurisdiction of the Civil Service Commission by . . . further praying for 'any remedy or judgment which under the premises are just and equitable.' It is an undesirable practice of a party participating in the proceedings, submitting his case for decision and accepting the judgment only if favorable, but attacking it for lack of jurisdiction when adverse. xxx xxx xxx In the same vein, respondent in the case should be barred under the principle of estoppel by laches from assailing the jurisdiction of the Ombudsman. Therefore, the Court of Appeals should have resolved the appeal on its merits, . . . . (Emphasis and underscoring supplied)
DHcTaE

The ruling by the Court of Appeals that estoppel will not apply against respondent because he raised the issue of jurisdiction "when the case was still before the Ombudsman" 37 is thus bereft of merit. The appellate court's citation of Duero v. Court of Appeals 38 in which this Court held that the therein private respondent Duero was not estopped from questioning the RTC jurisdiction, despite his active participation in the proceedings before it, is misplaced. For Duero involved lack of jurisdiction. The present case involves concurrent jurisdiction. WHEREFORE, the petition is GRANTED. The assailed Court of Appeals Decision of June 29, 2006 and Resolution of April 2, 2007 in CA-G.R. SP No. 93165 are

REVERSED and SET ASIDE. The case is REMANDED to the Court of Appeals which is directed to decide the case on the merits. SO ORDERED.

EN BANC
[A.M. No. CTA-01-1. April 2, 2002.] ATTY. SUSAN M. AQUINO, complainant, vs. HON. ERNESTO D. ACOSTA, Presiding Judge, Court of Tax Appeals, respondent.

Carpio & Villaraza Law Offices for respondent.

SYNOPSIS An administrative complaint for sexual harassment under R.A. 7877 and violation of the Canons of Judicial Ethics and Code of Professional Responsibility was filed by complainant, Chief of the Legal Technical Staff of the Court of Tax Appeals, against respondent Judge Ernesto Acosta, presiding judge of the same court. Complainant alleged that the respondent judge sexually harassed her six times on different occasions. In his comment, the respondent judge denied complainant's allegation. The case was referred to the investigating justice of the Court of Appeals for investigation, report and recommendation. In her report, the investigating justice held that a mere casual buss on the cheek is not a sexual conduct or favor and does not fall within the purview of sexual harassment under R.A. No. 7877. She found that the complainant failed to show by convincing evidence that the acts of the respondent judge in greeting her with a kiss on the cheek, in a 'beso-beso' fashion, were carried out with lustful and lascivious desires or were motivated by malice or ill motive. Hence, she recommended that the administrative complaint be dismissed and, accordingly, the respondent judge be exonerated therefrom. The Supreme Court agreed with the findings of the investigating justice. The Court had reviewed carefully the records of the case and found no convincing evidence to sustain complainant's charges. What the Court perceived to have been committed by respondent judge were casual gestures of friendship and camaraderie, nothing more, nothing less. In kissing complainant, the Court found

no indication that respondent judge was motivated by malice or lewd design. Complainant misunderstood respondent judge's actuations and construed them as work related sexual harassment under R.A. 7877. However, from the records on hand, there was no showing that the respondent judge demanded, requested or required any sexual favor from complainant in exchange for "favorable compensation, terms, conditions, promotion or privileges" specified under Section 3 of R.A. 7877. Nor did he, by his actuations, violate the Canons of Judicial Ethics or the Code of Professional Responsibility. Thus, the Court exonerated the respondent judge from the charges against him. He was, however, advised to be more circumspect in his deportment. SYLLABUS 1.LEGAL ETHICS; JUDGES; ADMINISTRATIVE COMPLAINTS; VIEWED WITH UTMOST CARE BY THE COURT. Administrative complaints against members of the judiciary are viewed by this Court with utmost care, for proceedings of this nature affect not only the reputation of the respondents concerned, but the integrity of the entire judiciary as well.
CHDAEc

2.ID.; ID.; ID.; CHARGE OF SEXUAL HARASSMENT; NOT PROVEN IN CASE AT BAR; KISSING OF COMPLAINANT CONSIDERED AS CASUAL GESTURES OF FRIENDSHIP AND CAMARADERIE. We have reviewed carefully the records of this case and found no convincing evidence to sustain complainant's charges. What we perceive to have been committed by respondent judge are casual gestures of friendship and camaraderie, nothing more, nothing less. In kissing complainant, we find no indication that respondent was motivated by malice or lewd design. Evidently, she misunderstood his actuations and construed them as work-related sexual harassment under R.A. 7877. 3.ID.; ID.; ID.; ID.; RESPONDENT JUDGE'S ACT OF KISSING COMPLAINANT DOES NOT FALL WITHIN THE PURVIEW OF SEXUAL HARASSMENT UNDER R.A. 7877. Indeed, from the records on hand, there is no showing that respondent judge demanded, requested or required any sexual favor from complainant in exchange for "favorable compensation, terms, conditions, promotion or privileges" specified under Section 3 of R.A. 7877. Nor did he, by his actuations, violate the Canons of Judicial Ethics or the Code of Professional Responsibility. 4.ID.; ID.; ID.; ID.; RESPONDENT JUDGE WAS EXONERATED THEREOF BUT ADMONISHED NOT TO COMMIT SIMILAR ACT AGAINST COMPLAINANT OR OTHER FEMALE EMPLOYEES OF THE COURT. While we exonerate respondent from the charges herein, however, he is admonished not to commit similar acts

against complainant or other female employees of the Court of Tax Appeals, otherwise, his conduct may be construed as tainted with impropriety. DECISION SANDOVAL-GUTIERREZ, J :
p

The present administrative case filed with this Court originated from a sworn affidavit-complaint 1 of Atty. Susan M.Aquino, Chief of the Legal and Technical Staff of the Court of Tax Appeals (CTA), charging Judge Ernesto Acosta, Presiding Judge of the same court, with sexual harassment under R.A. 7877 and violation of the Canons of Judicial Ethics and Code of Professional Responsibility.
DCTHaS

In her affidavit-complaint, complainant alleged several instances when respondent judge sexually harassed her. On November 21, 2000, she reported for work after her vacation in the United States, bringing gifts for the three judges of the CTA, including respondent. In the afternoon of the same day, he entered her room and greeted her by shaking her hand. Suddenly, he pulled her towards him and kissed her on her cheek. On December 28, 2000, while respondent was on official leave, he called complainant by phone, saying he will get something in her office. Shortly thereafter, he entered her room, shook her hand and greeted her, "Merry Christmas." Thereupon, he embraced her and kissed her. She was able to free herself by slightly pushing him away. Complainant submitted the Joint Affidavit 2 of Ma. Imelda C. Samonte and Anne Benita M. Santos, CTA Tax Specialists, to prove that respondent went to her office that day. On the first working day in January, 2001, respondent phoned complainant, asking if she could see him in his chambers in order to discuss some matters. When complainant arrived there, respondent tried to kiss her but she was able to evade his sexual attempt. She then resolved not to enter his chambers alone. Weeks later, after the Senate approved the proposed bill expanding the jurisdiction of the CTA, while complainant and her companions were congratulating and kissing each other, respondent suddenly placed his arms around her shoulders and kissed her.

In the morning of February 14, 2001, respondent called complainant, requesting her to go to his office. She then asked Ruby Lanuza, a clerk in the Records Section, to accompany her. Fortunately, when they reached his chambers, respondent had left. The last incident happened the next day. At around 8:30 a.m., respondent called complainant and asked her to see him in his office to discuss the Senate bill on the CTA. She again requested Ruby to accompany her. The latter agreed but suggested that they should act as if they met by accident in respondent's office. Ruby then approached the secretary's table which was separated from respondent's office by a transparent glass. For her part, complainant sat in front of respondent's table and asked him what he wanted to know about the Senate bill. Respondent seemed to be at a loss for words and kept glancing at Ruby who was searching for something at the secretary's desk. Forthwith, respondent approached Ruby, asked her what she was looking for and stepped out of the office. When he returned, Ruby said she found what she was looking for and left. Respondent then approached complainant saying, "me gusto akong gawin sa iyo kahapon pa." Thereupon, he tried to "grab" her. Complainant instinctively raised her hands to protect herself but respondent held her arms tightly, pulled her towards him and kissed her. She pushed him away, then slumped on a chair trembling. Meantime, respondent sat on his chair and covered his face with his hands. Thereafter, complainant left crying and locked herself inside a comfort room. After that incident, respondent went to her office and tossed a note 3stating, "sorry, it won't happen again." In his comment, respondent judge denied complainant's allegation that he sexually harassed her six times. He claimed that he has always treated her with respect, being the head of the CTA Legal Staff. In fact, there is no strain in their professional relationship. On the first incident, he explained that it was quite unlikely that complainant would ask him to go to her office on such date in order to give him a "pasalubong." With respect to the second incident on December 28, he claimed it could not have happened as he was then on official leave. Anent the third incident, respondent explained that he went to the various offices of the CTA to extend New Year's greetings to the personnel. He also greeted complainant with a casual buss on her cheek and gave her a calendar. In turn, she also greeted him.

As to the fourth episode, he averred that he and complainant had been attending the deliberations of the Bicameral Conference Committee at the Senate on the bill expanding the jurisdiction of the CTA. Hence, when the bill was finally approved that particular day, respondent, in jubilation and in the presence of other people, gave complainant a spontaneous peck on her cheek. He could not recall any resentment on her part when he kissed her. She even congratulated him in return, saying "Justice ka na Judge." Then he treated her to a lunch to celebrate the event. Respondent recounted several times when they would return to the CTA in the evening after attending the committee hearings in Congress to retrieve complainant's personal belongings from her office. Surely, if he had malice in his mind, those instances would have been the perfect opportunities for him to sexually harass her. As to the fifth incident, respondent alleged that he did not call complainant to harass her, but to discuss with her and Elizabeth Lozano, HRMO III, and Elsie T. Forteza, Administrative Officer, the health plan for the CTA officers and employees. The fact that such meeting took place was confirmed by a Certification issued by Lozano. 4

Regarding the sixth incident, respondent narrated his version as follows: Complainant arrived in his office past 9 a.m. that day, followed by another court employee, Ruby Lanuza. He proceeded to discuss the CTA Expansion Bill with complainant. Then he went for a while to the rest room. When he returned, Ruby had already left but complainant was still there. Forthwith, he remarked that he forgot to greet her on Valentine's Day, the day before. He approached complainant to give her a casual buss on the cheek. But she suddenly stood and raised her arms to cover her face, causing her to lose her balance. So he held her arms to prevent her from falling. Her rejection came as a surprise to him and made him feel quite embarrassed. Shortly, complainant excused herself and left the room. Stunned at the thought that she might misinterpret his gesture, he sent her a short note of apology. Respondent further explained that the structure of his office, being seen through a transparent glass divider, makes it impossible for anyone to commit any improper conduct inside. In a Resolution dated August 21, 2001, this Court referred the instant case to Justice Josefina G. Salonga of the Court of Appeals for investigation, report and recommendation.

Justice Salonga set the hearing of the case on November 6, 2001. However, the parties, through counsel, manifested that "they will not be adducing any further evidence." On November 7, 2001, Justice Salonga issued an Order directing them to submit their memoranda simultaneously, after which, the case shall be considered submitted for resolution. On January 9, 2002, Justice Salonga forwarded to this Court her Report on Investigation and Recommendation, thus:
"We find for the respondent. "The complainant failed to show by convincing evidence that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a 'besobeso' fashion, were carried out with lustful and lascivious desires or were motivated by malice or ill-motive. It is clear under the circumstances that most of the kissing incidents were done on festive and special occasions. In fact, complainant's testimony that she was sexually harassed on November 21, 2000, is hardly believable. Notably, complainant declared in her affidavit-complaint that she brought some 'pasalubongs' for the respondent judge from her trip abroad. Therefore, Atty. Aquino could not have been 'taken aback' by the respondent's act of greeting her in a friendly manner and thanking her by way of a kiss on the cheek. Moreover, it was established that Judge Acosta was on official leave of absence from December 26-29, 2000. This was corroborated by Ricardo Hebia, the driver of respondent judge, in hisPanunumpa (Affidavit) dated March 26, 2001, where he stated among others, to wit: xxx xxx xxx "Corollarily, the joint affidavit of Ms. Santos and Ms. Samonte attesting to the fact that respondent dropped by at the third floor of the CTA and greeted them Happy New Year, even if it true, can not be given any evidentiary weight. Clearly, they did not make any categorical statement that they had witnessed or seen JudgeAcosta making sexual advances on the complainant. Nor did they even attribute any malicious acts on respondent constituting sexual harassment. "In addition, the respondent admitted that when he handed a calendar and greeted complainant with a buss, complainant reciprocated by greeting him a Happy New Year. The allegation of Atty. Aquino that the respondent merely used the calendars as 'props' to kiss her on the cheek and that she was singled out by respondent is not supported by any convincing evidence. The affidavit of Ms. Aurora U. Aso and Renelyn L.

Larga that Ms. Carmen Acosta gave them calendars for the office of Attys. Margarette Guzman and Felizardo O. Consing, is immaterial and irrelevant, as Judge Acosta had stated that he handed to complainant Aquino, a 2001 calendar in the course of greeting her with a buss on the cheek. Said affidavit could not account for the calendars distributed to the other offices in the CTA, more specifically, the Legal and Technical Staff headed by Atty. Aquino. "Moreover, the claim of the complainant that she was sexually harassed immediately after the final reading of the bill anent the expansion of the CTA at the Senate, can not be accorded great evidentiary value. The alleged kissing incident took place in the presence of other people and the same was by reason of the exaltation or happiness of the moment, due to the approval of the subject bill. Quite interesting to note, is that Atty. Aquinoreciprocated by congratulating respondent and remarking "justice ka na judge" after the latter had bussed her on the cheek. Complainant even failed to dispute the fact that after the kissing incident, she joined JudgeAcosta and his driver for lunch at a seafood restaurant in Luneta. There was even a time that she allowed the respondent judge to accompany her to the office alone and at nighttime at that, to retrieve her car keys and bag when they returned to the CTA after the hearing at the Senate on the CTA expansion bill. These acts are not at square with the behavior of one who has been sexually harassed, for the normal reaction of a victim of sexual harassment would be to avoid the harasser or decline his invitations after being offended. In fact, this occasion could have provided the respondent judge with the right opportunity to commit malicious acts or to sexually harass complainant, but then Judge Acosta never even attempted to do so. Undoubtedly, it could be said that no strained relations existed between Atty. Aquino and Judge Acosta at that moment. "Neither can the alleged continuous call of Judge Acosta on complainant in the morning of February 14, 2001 to see him in his office, be considered as acts constituting sexual harassment. Atty. Aquino failed to state categorically in her affidavit-complaint that respondent demanded sexual advances or favors from her, or that the former had committed physical conduct of sexual nature against her. The telephone calls were attributed malicious implications by the complainant. To all intents and purposes, the allegation was merely a product of her imagination, hence, the same deserves no weight in law. Indeed, Atty. Aquino's own version, indicates that she well knew that the purpose of the respondent in calling her in the morning of February 14, 2001 was to discuss the CTA Health Plan which was disapproved by the Supreme Court and not for the respondent to demand sexual favors from her. This was

corroborated by Atty. Margarette Guzman in her affidavit dated February 28, 2001, attached to the complainant's affidavit, where she stated: xxx xxx xxx "Finally, while Judge Acosta admitted having pecked Atty. Aquino on her cheek, which was avoided by the latter, the same was not meant to sexually harass her. Judge Acosta's act of extending his post Valentine greeting to complainant was done in good faith and sans any malice. This is so because immediately after the complainant had displayed annoyance to the kissing episode, Judge Acosta immediately extended an apology by way of a handwritten note saying that the incident won't happen again. "Parenthetically, the undersigned is convinced that Ms. Lanuza's affidavit that she supposedly accompanied complainant to respondent's office as she allegedly had a previous 'bad experience' with the latter when he was still an Associate Judge, was merely concocted to add flavor to the baseless imputations hurled against JudgeAcosta. The accusation is implausible as Ms. Lanuza did not seem to complain about the alleged bad experience she had with Judge Acosta or relate it to anyone until ten (10) years later. It must be stressed that Ms. Lanuza is a biasedwitness who harbored ill feelings against the respondent, as she was reprimanded by Judge Acosta for habitual absenteeism and tardiness in 1996. More importantly, Ms. Lanuza did not even attest that she was a witness to the alleged sexual advances of Judge Acosta. "In all the incidents complained of, the respondent's pecks on the cheeks of the complainant should be understood in the context of having been done on the occasion of some festivities, and not the assertion of the latter that she was singled out by Judge Acosta in his kissing escapades. The busses on her cheeks were simply friendly and innocent, bereft of malice and lewd design. The fact that respondent judge kisses other people on the cheeks in the 'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they usually practice 'beso-beso' or kissing on the cheeks, as a form of greeting on occasions when they meet each other, like birthdays, Christmas, New Year's Day and even Valentine's Day, and it does not matter whether it is Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer who belongs to complainant's department, further attested that on occasions like birthdays, respondent judge would likewise greet her with a peck on the cheek in a 'beso-beso' manner. Interestingly, in one of several festive occasions, female employees of the CTA pecked

respondent judge on the cheek where Atty. Aquino was one of Judge Acosta's well wishers. (Annex "8" to Comment, p. 65, Rollo) "In sum, no sexual harassment had indeed transpired on those six occasions. Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms of greetings, casual and customary in nature. No evidence of intent to sexually harass complainant was apparent, only that the innocent acts of 'beso-beso' were given malicious connotations by the complainant. In fact, she did not even relate to anyone what happened to her. Undeniably, there is no manifest sexual undertone in all those incidents." 5

Justice Salonga then made the following recommendation:

"Considering the above, the undersigned respectfully recommends that the administrative complaint for sexual harassment and violations of the Canons of Judicial Ethics and the Code of Professional Responsibility be DISMISSED and accordingly, respondent Presiding Judge Ernesto D. Acosta be exonerated therefrom; that in view of these charges which might have tainted the image of the Court, though unsubstantiated they may be, Judge Acosta is WARNED to refrain from doing similar acts, or any act for that matter on the complainant and other female employees of the Court of Tax Appeals, which in any manner may be interpreted as lustful advances." 6

We agree with the findings of Justice Salonga. Administrative complaints against members of the judiciary are viewed by this Court with utmost care, for proceedings of this nature affect not only the reputation of the respondents concerned, but the integrity of the entire judiciary as well. We have reviewed carefully the records of this case and found no convincing evidence to sustain complainant's charges. What we perceive to have been committed by respondent judge are casual gestures of friendship and camaraderie, nothing more, nothing less. In kissing complainant, we find no indication that respondent was motivated by malice or lewd design. Evidently, she misunderstood his actuations and construed them as work-related sexual harassment under R.A. 7877. As aptly stated by the Investigating Justice:

"A mere casual buss on the cheek is not a sexual conduct or favor and does not fall within the purview of sexual harassment under R.A. No. 7877. Section 3 (a) thereof provides, to wit: 'Sec. 3.Work, Education or Training Related Sexual Harassment Defined. Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. a)In a work-related or employment environment, sexual harassment is committed when: 1)The sexual favor is made as a condition in the hiring or in the employment, reemployment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions or privileges; or the refusal to grant sexual favor results in limiting, segregating or classifying the employee which in anyway would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employees; 2)The above acts would impair the employee's right or privileges under existing labor laws; or 3)The above acts would result in an intimidating, hostile, or offensive environment for the employee.' "Clearly, under the foregoing provisions, the elements of sexual harassment are as follows: 1)The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person has authority, influence or moral ascendancy over another;

2)The authority, influence or moral ascendancy exists in a working environment; 3)The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, or any other person having authority, influence or moral ascendancy makes a demand, request or requirement of a sexual favor. "In her Complaint-affidavit, Reply and Sur-rejoinder, complainant did not even allege that Judge Acostademanded, requested or required her to give him a buss on the cheek which, she resented. Neither did Atty.Aquino establish by convincing evidence that the busses on her cheek, which she considers as sexual favors, discriminated against her continued employment, or resulted in an intimidating, hostile or offensive environment. In fact, complainant continued to perform her work in the office with the usual normalcy. Obviously, the alleged sexual favor, if there ever was, did not interfere with her working condition (Annexes "9" "9-FFF"). Moreover, Atty. Aquino also continued to avail of benefits and leaves appurtenant to her office and was able to maintain a consistent outstanding performance. On top of this, her working area which, is at the third floor of the CTA, is far removed from the office of Judge Acosta located at the fourth floor of the same building. Resultantly, no hostile or intimidating working environment is apparent. "Based on the foregoing findings, there is no sufficient evidence to create a moral certainty that Judge Acostacommitted the acts complained of; that Atty. Aquino's determination to seek justice for herself was not substantiated by convincing evidence; that the testimony of respondent judge and his witnesses are credible and therefore, should be given weight and probative value; that the respondent's acts undoubtedly do not bear the marks of misconduct, impropriety or immorality, either under R.A. No. 7877 or the Canons of Judicial Ethics and the Code of Professional Responsibility." 7

Indeed, from the records on hand, there is no showing that respondent judge demanded, requested or required any sexual favor from complainant in exchange for "favorable compensation, terms, conditions, promotion or privileges" specified under Section 3 of R.A. 7877. Nor did he, by his actuations, violate the Canons of Judicial Ethics or the Code of Professional Responsibility. While we exonerate respondent from the charges herein, however, he is admonished not to commit similar acts against complainant or other female

employees of the Court of Tax Appeals, otherwise, his conduct may be construed as tainted with impropriety. We laud complainant's effort to seek redress for what she honestly believed to be an affront to her honor. Surely, it was difficult and agonizing on her part to come out in the open and accuse her superior of sexual harassment. However, her assessment of the incidents is misplaced for the reasons mentioned above. WHEREFORE, respondent Judge Ernesto D. Acosta is hereby EXONERATED of the charges against him. However, he is ADVISED to be more circumspect in his deportment. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Y nares-Santiago and De Leon, Jr., JJ., concur.

EN BANC
[A.M. No. P-03-1697. October 1, 2003.] (formerly OCA I.P.I. No. 01-1196-P) JOCELYN S. PAISTE, complainant, vs. APRONIANO V. MAMENTA, JR., Clerk of Court II, Municipal Circuit Trial Court, Tayug-San Nicolas, Pangasinan, respondent. [A.M. No. P-03-1699. October 1, 2003.] (formerly OCA I.P.I. No. 01-1202-P) JOANNE S. GOLTIAO, complainant, vs. APRONIANO V. MAMENTA, JR., Clerk of Court II, Municipal Circuit Trial Court, Tayug-San Nicolas, Pangasinan, respondent. DECISION PER CURIAM :
p

These consolidated administrative cases arose from two different complaints filed against respondent Aproniano V.Mamenta, Jr., Clerk of Court II, Municipal Circuit Trial Court of Tayug-San Nicolas, Pangasinan. In an affidavit-complaint filed with the Office of the Chief Justice, 1 dated August 10, 2001, complainant Joanne S. Goltiao charged him with gambling and drinking liquor during office hours, sexual harassment, arrogance and acts unbecoming of a government official. In another affidavit-complaint filed with the Office of the Court Administrator, 2 dated August 28, 2001, the other complainant Jocelyn C. Paiste charged him with conduct unbecoming of a public officer and with violation of the Anti-Graft and Corrupt Practices Act 3 for his failure to issue official receipt. After respondent denied the accusations against him in separate letters, 4 we resolved 5 to refer both cases to Hon. Ulysses Butuyan, Executive Judge of the Regional Trial Court of Tayug, Pangasinan for investigation, report and recommendation. 6 Separate investigations of the complaints were conducted. In A.M. No. P-03-1699 (formerly OCA I.P.I. No. 01-1202-P), evidence shows that complainant Goltiao is a Stenographer I of the MCTC of Tayug-San Nicolas since 1997. She testified 7 that on August 7, 2000, at about 3:00 p.m., a representative from the Plaridel Insurance Co. came to their office seeking clearance. She immediately prepared the necessary form and, together with the representative, went to see respondent in the courtroom to obtain his signature. When she asked him to sign the document, respondent, who was at that time playing tongits (a card game) at the lawyers' table with unnamed individuals, got angry and threw his cards. He shouted at her: "Why did you bring them with you? Did you like them to bring me to the Supreme Court?" She responded that such was not her intention and reminded him of his requirement that he must first see the applicants before he sign their clearance. He did not sign the clearance, sent them out and shouted "Bullshit ka!" at her thrice. They all then went out of the courtroom and proceeded back to the staff room. She went to her table and buried her face in her hands, crying. Respondent followed her and continued uttering unsavory remarks: "Bullshit ka! Vulva of your mother! Why did you take the client there and even raised your voice? (Bullshit ka! Okinnam nga babai! Apay ta innalam dagita kliyente idiay sanak to rinayawan!)" She replied that her parents taught them not to answer back at older people. He still shouted: "Vulva of your mother! I wish you will die now! Whom are you bragging of? We will try each other. (Okinnam nga babai! Matay ka koma itattan! Apay sinno aya ti paglaslastog mo? Sige, agpipinnadas tayo.)" Thereafter, he asked the utility aide to buy him four bottles of beer.

Goltiao declared that her working relationship with the respondent is "sometimes good and sometimes bad because of his ill temper." 8 He easily gets mad at her even for small, trivial mistakes. This situation started, according to her, when she told him to stop courting and sending her love notes as she is already a married woman. She related an incident which happened early one morning when he asked her to see him inside the judge's chamber. At that time, the designated judge was not around. Once inside, she was told to sit in one of the chairs in front of the judge's table. The respondent, who was sitting at the judge's chair, then extended his hand to her, as if he wanted to shake her hands. She reciprocated by extending her hands and jokingly put his hands on her forehead (agmanmano). She afterwards tried to free her hands off his but he would not let her. Instead, he told her, "Wait for a while, I would just like to tell you something. I love you, is that okay? Tell me that you love me too. No strings attached." She retorted, "As if you are my father." Spurned, he got mad. This kind of incident happened at least ten more times. Furthermore, respondent sent her love notes. He wrote his love messages on pieces of paper in front of her and handed them to her. 9 She knew that they were intended for her as there was nobody else present when he gave the notes to her. He would also call her at her mother's house. She did not respond affirmatively to his display of affection as both of them are married. Finally, she explained that she filed a complaint against him only on August 10, 2001 because of the August 7, 2001 incident, when she got fed up at the way he treated her. Marilyn de Leon, also a court stenographer of MCTC Tayug-San Nicolas, corroborated the testimony of Goltiao. 10 She stated that she witnessed the incident on August 7, 2001, when respondent became angry at Goltiao after the latter went to ask for his signature while he was playing tong-its. She heard respondent shout foul words at Goltiao. She added that respondent gets mad at everyone at the office on trivial matters. She, too, received love notes from the respondent. Court stenographer Glenda C. Ramirez also corroborated the testimony of Goltiao. 11 She declared that she witnessed the incident on August 7, 2001 at their office. She observed that respondent was fuming mad at Goltiao, when the latter asked him to sign a clearance form. She heard respondent shout at Goltiao inside the courtroom and at the staff room. Respondent got mad when Goltiao allowed the representatives of the insurance company to enter the courtroom, where he was playing tong-its. She related that she also received love notes from him. One time, after respondent signed her travel order, she noticed the

following message written on the order: "7:30 in the evening, Jollibee." She did not go out with him. She chose him as a principal sponsor on her wedding in the hope that he would treat her like his own child and that he would stop sending notes to her. This did not happen even as respondent continued to easily get mad at her for simple lapses. Renato Rombawa, a utility worker at the court, saw the incident on August 7, 2001, when respondent got mad at Goltiao inside the courtroom. 12 He did not know why he became furious. At the time of the incident, respondent was playing tong-its. Estifanio Acosta, Clerk III at the MCTC, stated that he likewise saw respondent got mad when Goltiao tried to obtain his signature for a clearance form. 13 Respondent, he recalled, was at that time playing tong-its. He knew that respondent gives love notes to Goltiao and Glenda Ramirez, as the two revealed this secret to him. Lastly, David Kagaoan testified that at about 3:00 o'clock in the afternoon of August 7, 2001, somebody came to get a clearance from the court. 14 The clearance form was prepared by Goltiao who went to see the respondent at the courtroom. He then heard shouts of "vulva of your mother, get out of here!" from the room. He thought it came from the respondent, who was then playing tong-its. Rombawa, the utility worker, went inside the courtroom and brought the sobbing Goltiao out. He stated that complainant showed him some of the love notes respondent gave her. He knows it came from respondent as he is familiar with his signature. Respondent denied the allegations against him. 15 He admitted shouting at Goltiao because she, too, shouted at him. He declared that the complaint was intended to harass him and put him into shame and to remove him from office. He said that Goltiao and her witnesses resent his strictness and they want to continue with their bad ways in the office. Goltiao, Ramirez and de Leon come to office late but Goltiao's daily time record does not reflect her tardiness. She sells stenographic notes without remitting a single centavo to the Judiciary Development Fund (JDF). Witness Rombawa does not work in the office from 2:00 to 5:00 o'clock in the afternoon. Witness Acosta is a habitual absentee, reports at 10:00 o'clock and leaves after only an hour. He then returns at 2:00 o'clock in the afternoon. He is hired by one Bobby Go as a driver. Witness Kagaoan is a habitual latecomer as he attends to his agricultural business first before going to the court. He adds that witnesses Rombawa, Acosta and

Kagaoan all play tong-its either at the session hall of the court or the first floor of the building. On rebuttal, complainant Goltiao revealed that respondent invited her several times for a date at Jollibee, instructing her not to tell her husband about it. 16 Respondent countered that every time he invites her, it was with de Leon, Ramirez and other court personnel. 17 In A.M. No. P-03-1697 (formerly OCA I.P.I. No. 01-1196-P), complainant Paiste is the owner of JCP72 Insurance Agency, and as its proprietor, has transactions with the MCTC Tayug-San Nicolas. 18 She testified that on April 3, 2001, at about 2:00 p.m. she went to the court, together with a client, to post bail. When they arrived, they could not find the respondent. An employee named Marilyn accompanied them to one of the rooms at the hall of justice where the respondent was holding game cards and playing tong-its with some people. Marilyn called respondent's attention telling him that somebody wants to post bail. Respondent retorted, "You just go ahead upstairs. Why, could you not wait?" They went ahead and respondent followed fifteen minutes after. She noticed that he was mad. They told him they want to post bail and he asked for the records of the case. After examining the records, he slammed it and said, "You go to Rosales! That is not our work!" He also became angry when they followed him.

On April 20, 2001, Paiste, an officemate and a client again went to the MCTC in Tayug-San Nicolas to post bail in connection with Criminal Case No. 7461. The respondent instructed them to go to the house of Judge Pastor. They went there as told but the judge rejected their papers. They returned the next day, a Saturday, after completing their documents. They came from the court where they met respondent, who accompanied them to the judge's house. The judge approved the surety bond. 19 Later, they handed three thousand pesos (P3,000.00) to the respondent, two thousand four hundred pesos (P2,400.00) of which was for the JDF. They gave him the remaining six hundred pesos (P600.00) after he asked them, "Paano naman yung sa akin?" They understood that to mean that he was expecting some form of compensation as he accompanied them outside the office on a non-working day. They then demanded an official receipt for the two thousand four hundred pesos (P2,400.00) they paid him corresponding to the amount of the JDF. He told them to go to the court and get it the following Monday. That Monday, she sent one of her staff to get the receipt, but the latter reported to her that he did not issue

one. She added that this is not the only time that he failed to issue her a receipt. In other cases, he also neglected to do so even after she has paid the mandatory JDF fees. A staff member of the MCTC Tayug-San Nicolas, Estifanio Acosta, verified the records of Criminal Case No. 7461 and stated that no official receipt appears on file although the personal bail bonds issued by the JCP72 Insurance Agency, bearing the date April 21, 2001, in favor of the several accused in the case were approved by the acting presiding judge of the court. 20 For his part, respondent merely denied the foregoing allegations in open court and waived presentation of evidence. 21 After investigation, the investigating judge rendered a Consolidated Report and Recommendation 22 finding respondent guilty of serious misconduct and accordingly proposed that he be sternly reprimanded and fined ten thousand pesos (P10,000.00), thus:
Nonetheless, on the basis of the evidence adduced, barely refuted by the respondent, the undersigned finds him guilty of serious misconduct in office, consisting of abundantly substantiated offenses thus: 1.Making undue advances through love notes to female subordinates; 2.Indulging in card games during office hours; 3.Using abusive language in dealing with subordinates as well as with third persons seeking his services as clerk of court; and 4.Receiving payments for court fees without promptly issuing the corresponding receipts therefore. WHEREFORE, all of the foregoing premises and circumstances considered, the undersigned hereby respectfully recommends that respondent be sternly reprimanded, and fined in the amount of P10,000.00, for serious misconduct. 23

The report was forwarded to the Office of the Court Administrator (OCA). After evaluating the report and the records, the OCA proposed that a stiffer penalty must be imposed on respondent. On the basis of Sections 52, 54 and 55 of Memorandum Circular No. 19, series of 1999 of the Civil Service Commission, 24 it recommended that the two complaints be consolidated and docketed as a regular administrative case and that respondent be "SUSPENDED

for a period of one (1) year having been found Guilty of various offenses including the (sic) Grave Offenses and disgraceful and immoral conduct."

25

A painstaking examination of the records of the cases convinces us that the respondent is guilty of the offenses charged against him.
acIASE

The evidence in A.M. No. P-03-1699 adequately establishes that he was guilty of gambling, using abusive language and sexually harassing his female subordinates. We find credible the categorical and straightforward testimonies of complainant Goltiao and her witnesses. Their frank and candid testimonies, unshaken by cross-examination and unflawed by inconsistencies or contradictions in their material points, deserve our full faith and belief. 26 In contrast, we are not persuaded by the denial put forward by the respondent. The purported motive he imputes against complainant and her witnesses for filing this case is not worthy of attention. He asserts that they just want him removed so they can continue with their "bad ways in the office." It strikes us strange that he allowed these bad ways for a long time without taking any measures or reporting them to the OCA. Time and again, we have emphasized that court officers, circumscribed with heavy responsibility, must be the paragon of propriety and good behavior. 27 This is especially true for a clerk of court like the respondent. As a ranking officer of the court, it is incumbent upon him to set an example to his co-employees as to how they should conduct themselves in office; to see to it that his subordinates work efficiently in accordance with the rules and regulations of the civil service and the judiciary; and to provide them with a healthy working atmosphere wherein co-workers treat each other with respect, courtesy and cooperation, so that in the end public interest will be benefited. 28 Respondent failed to measure up to these standards. His use of offensive language towards complainant Goltiao reflects his impoliteness and lack of decorum. He shouted profanity at her, verbally abused her and even disrespected her mother. He did this in the presence of so many employees and clients of the court. Worse, there was no reason for him to unleash to her a fury of this kind. She was merely asking him to sign a clearance form and to examine the applicant pursuant to his specific instruction that he should first see the applicant for the clearance before he sign the form. In fine, she was just doing her job. The truth is, he got mad at her out of his fear that the client she brought along might report him to this court when they caught him in flagrante delicto gambling.

Similarly objectionable is respondent's penchant for playing tong-its (a card game) and gambling with other employees of the court. Gambling is illegal and is absolutely forbidden at court premises during office hours. 29 It generates unwholesome consequences on the gambler as it diverts his attention from the more important responsibilities of his job. 30 Respondent himself was very much aware of this prohibition and this is exactly the reason why he castigated the complainant for approaching him while he was playing cards, thus: "Why did you bring them with you? Did you like them to bring me to the Supreme Court?" 31 Worse, respondent was playing cards and gambling during office hours at the session hall of the courtroom, which is hardly the place for such undesirable activities. A courtroom is generally looked upon by people with high respect and regarded as a sacred place where witnesses testify under oath, where conflicts are resolved, rights adjudicated, and justice solemnly dispensed. 32 Making it a game room and a casino area diminishes its sanctity and dignity. 33 The undue advances respondent made to complainant Goltiao betrays his twisted sense of propriety. Many times, he declared his feelings for her and handed her love notes. He would then beseech her to say the same things to him. He proposed to have dinner dates with her at Jollibee. There were times that he cornered her at the judge's chamber and unnecessarily held her hand. While professing one's amorous intention is not something that usually causes a hullabaloo, it becomes indecent and improper in this case considering he is complainant Goltiao's superior and both of them are married. His dissoluteness told itself when he went to the extent of calling her at her mother's house and persuading her not to tell her husband about these incidents. It appears too that the complainant was not the exclusive object of respondent's advances. Witnesses Marilyn de Leon and Glenda Ramirez testified that they also received love notes and invitations for dinner from him. Like a hunter out on the prowl, he victimized other female workers unabashedly professing his alleged feelings for them in utter disregard of the fact that they were his subordinates, they were married and they were young enough to be his daughters. Instead of he being in loco parentis over his subordinate employees, he preyed on them as he took advantage of his superior position. 34 Under the circumstances, we find respondent guilty of sexual harassment. His severely outrageous acts, which are an affront to women, constitute sexual harassment because they necessarily result in an intimidating, hostile, and offensive working environment for his female subordinates. 35 He abused the power and authority he exercises over them, which is the gravamen of the

offense in sexual harassment. 36 Sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire it is about power being exercised by a superior over his women subordinates. 37 That power emanates from the fact that he can remove them if they refuse his amorous advances. 38 There is likewise sufficient evidence in A.M. No. P-03-1697 to hold respondent administratively liable for his failure to issue official receipt after receiving court fees and for discourtesy. The testimony of complainant Paiste is worthy of belief. We find her categorical and consistent declarations credible, especially when viewed in the light of the fact that no ill-motive on her part was established. 39 Against her positive testimony, supported by documentary evidence based on official court records, the mere uncorroborated denial of the respondent deserves scant consideration. 40 The evidence shows that on April 21, 2001, complainant Paiste gave to the respondent the amount of two thousand four hundred pesos (P2,400.00) as bail bond of the accused in Criminal Case No. 7461. When she asked for an official receipt, he told her to get it the following Monday at the court. She sent an office representative that Monday as told but respondent did not issue any receipt. Further verification from the records of Criminal Case No. 7461 reveals that no copy of the official receipt appears on file indicating that no receipt was ever issued to complainant Paiste.
TaISDA

Undoubtedly, respondent should have issued an official receipt when he received the sum of money from complainantPaiste. His failure to do so is a violation of the National Accounting and Auditing Manual which mandates that no payment of any nature shall be received by a collecting officer without immediately issuing an official receipt, in acknowledgment thereof. 41 It bears emphasis that there is no valid reason for his non-issuance of a receipt. Even if he argues that he could not issue an official receipt to the complainant Paiste as the transaction transpired on a Saturday and outside court premises, still, his failure to issue a receipt the following Monday is totally unjustified. We also find the rude and boorish manner respondent treated complainant Paiste and her client on April 3, 2001 uncalled for. His demeanor bordered on arrogance. He made them wait for fifteen minutes before he attended to their concern as they found him playing cards and gambling. He was very irritable the whole time he was talking to them. After he examined the

record, he slammed it and told them to go to the court at Rosales. He then got annoyed when they followed him. To be sure, this is no way to treat court users. High strung and belligerent behavior has no place in government, especially in the judiciary, where the personnel are enjoined to act with self-restraint and civility at all times, even when confronted with rudeness and insolence. 42 They are expected to extend prompt, courteous and adequate service to the people. 43 Such conduct is exacted from them so that they will earn and keep society's high regard for and confidence in the judicial service. 44 Conduct violative of this standard quickly and surely corrodes respect for the courts. It is the imperative and sacred duty of everyone charged with the dispensation of justice, from the judge to the lowliest clerk, to uphold the court's good name and standing as true temples of justice. 45 We do not agree with both the investigating judge and the OCA when they imposed a single penalty on the respondent for the two cases. Although consolidated, the two cases are distinct and each one contains different charges. Respondent, as a consequence, must be separately held liable and penalized for the charges in each case. This brings us to the individual penalties which must be imposed on the respondent for each case. In A.M. No. P-03-1699, we hold that the gross discourtesy, gambling and sexual harassment he committed constituted serious misconduct and conduct prejudicial to the interest of the service which warrant his dismissal from office. He has been shown to lack the requisite professional and moral qualifications to continue as an employee in the judiciary. In A.M. No. P-03-1697, his failure to issue a receipt amounted to gross neglect of duty while his grossly discourteous behavior is conduct unbecoming of a public officer. For this reason, we impose on him a suspension of one (1) month. IN VIEW WHEREOF, respondent Aproniano V. Mamenta, Jr. is found Guilty of gross discourtesy, gambling, and sexual harassment in A.M. No. P-03-1699 and is accordingly DISMISSED from the service with prejudice to re-employment in any branch, agency, or instrumentality of the Government, including government-owned and controlled corporations. He is likewise found Guilty of gross discourtesy and failure to issue an official receipt in A.M. No. P-03-1697 and is meted the penalty of suspension for a period of One (1) Month. Considering, however, that we already ordered his dismissal in A.M. No. P-03-1699, his suspension is moot.

SO ORDERED.

THIRD DIVISION
[G.R. Nos. 149872-73. March 14, 2003.] PEOPLE OF THE PHILIPPINES, appellee, vs. ROSDIA HAJILI y SAKILAN, a.k.a. ROSDIA HAJILI y JAYADI alias "Hadji Usdi," and NORMINA UNDAY y ALOH, appellants.

The Solicitor General for plaintiff-appellee. Bonifacio A. Tavera, Jr. for accused-appellants.
SYNOPSIS Appellants Rosdia Hajili and Normina Unday were found guilty by the Regional Trial Court of Zamboanga City for violating Sections 15 and 16 of Article III of Republic Act. No. 6425, as amended. Hajili was sentenced to suffer the penalty of reclusion perpetua while Unday was meted an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum. In their appeal before the Court, appellants questioned (1) the sufficiency of the prosecution evidence and (2) the regularity of the conduct of the buy-bust operation. The Supreme Court affirmed their conviction. According to the Court, all the elements necessary for conviction under Sections 15 and 16 of Article III of Republic Act. No. 6425, as amended, were duly proven. The Court also found no merit in appellants' claim that the Zamboanga City policemen's method in conducting buy-bust operations is a reflection of the irregularity of the procedure. The Court stressed that there is no rigid or textbook method of conducting buy-bust operations and the choice of effective ways to apprehend drug dealers is within the ambit of police authority. Police officers have the expertise to determine which specific approaches are necessary to enforce their entrapment operations. The courts' duty in the said cases is to ensure that the rights of the accused have not been violated. SYLLABUS

1.CRIMINAL LAW; DANGEROUS DRUGS ACT; ILLEGAL SALE AND ILLEGAL POSSESSION OF DANGEROUS DRUGS; ELEMENTS THEREOF; ESTABLISHED IN CASE AT BAR. In a prosecution for illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence. On the other hand, in a prosecution for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. A review of the records and the transcripts of stenographic notes of these cases reveals that the prosecution has proven the presence of these elements. 2.ID.; ID.; ID.; THERE IS NO RIGID OR TEXTBOOK METHOD OF CONDUCTING BUY-BUST OPERATIONS. We find no merit in appellants' claim that the Zamboanga City policemen's use of the same method in conducting buy-bust operations is a reflection of the irregularity of the procedure. It must be noted that there is no rigid or textbook method of conducting buy-bust operations. The choice of effective ways to apprehend drug dealers is within the ambit of police authority. Police officers have the expertise to determine which specific approaches are necessary to enforce their entrapment operations. The courts' duty in these cases is to ensure that the rights of the accused have not been violated during buy-bust operations. 3.ID.; CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY; CONSPIRACY; SHOWN BY APPELLANTS' BEHAVIOR DURING THE ENTRAPMENT. We are not persuaded by the argument of appellants that conspiracy was not duly proven. Their behavior during the entrapment shows that there was conspiracy between them. Direct proof is not essential to the establishment of conspiracy, as it may be inferred from the acts of the accused before, during and after the commission of the crime. All such acts imply conspiracy when they indubitably point to or indicate a joint purpose, a concert of action and a community of interest. 4.REMEDIAL LAW; EVIDENCE; DEFENSE OF FRAME-UP OR HULIDAP WAS NOT CLEARLY PROVEN; CASE AT BAR. Once the elements of a crime have been established, the defense of frame-up or hulidap must be clearly proven by the defense. This defense is difficult to substantiate, as we have held in People v. Chen Tiz Chang: "Courts generally view with disfavor this defense commonly raised in drug cases, for it is easy to concoct and difficult to prove. Moreover, there is a presumption that public officers, including the arresting officers, regularly perform their official duties. In the present case, the defense failed to

overcome this presumption to present clear and convincing evidence to prove 'hulidap.'" In the cases at bar, the defense failed to support its allegations. The testimonies of appellants and other defense witnesses are silent on the claim that the apprehending policemen demanded hush money. Also, as aptly observed by the trial court, assuming that appellants had been brought to the police station and detained without any explanation, they could have filed charges administrative or criminal against the policemen. No complaints, however, were ever reported. 5.ID.; ID.; CREDIBILITY OF WITNESSES; THE CLEAR, STRAIGHTFORWARD AND CONSISTENT TESTIMONIES OF THE POLICE OFFICERS SUFFICIENTLY SUPPORT THE TRIAL COURT'S CONCLUSION; CASE AT BAR. Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation. Furthermore, this Court is guided by the entrenched rule that the assessment of witnesses and their testimonies is a matter best undertaken by the trial court, which had the opportunity to observe the demeanor, conduct or attitude of the witnesses. The findings of the lower court on this point are accorded great respect and will not be reversed on appeal, unless it overlooked substantial facts and circumstances which, if considered, would materially affect the result of the case. PO3 Enrique Rivera, the poseur-buyer in the buy-bust operation, positively identified Hajili and Unday as the peddlers of the confiscated shabu. The clear, straightforward and consistent testimonies of the police officers sufficiently support the trial court's conclusions. The allegation that Appellant Hajili knew the poseur-buyer to be a policeman is not a ground for inferring that she could not have sold the illegal drugs to him. Such sales to police officers do take place nowadays. 6.ID.; ID.; APPELLANTS FAILED TO DESTROY THE CREDIBILITY OF THE PROSECUTION WITNESSES. The reliance of appellants on People v. Lim is misplaced. Contrary to their assertion in their Reply Brief, the facts in that case are hardly similar to those in the instant cases. In the aforementioned case, we found substantial inconsistencies in the testimonies of the police officers who had conducted the buy-bust operation. Significantly, the testimony of the poseurbuyer on the sale of illegal drugs was not credibly corroborated, thus, creating uncertainty on whether the crime had indeed been committed. There were no such attendant circumstances in the present cases. As mentioned earlier, appellants failed to destroy the credibility of the prosecution witnesses. The former alluded to inconsistencies that were, however, not specifically identified and supported. What is essential is that the prosecution witnesses positively identified appellants as the ones who had possessed the dangerous drug and sold it to the poseur-buyer.
TIcEDC

DECISION PANGANIBAN, J :
p

The buy-bust operation in this case is supported by the credible and straightforward testimonies of the police officers. Appellants' desperate attempt to taint them with accusations of bias and irregular procedure is not supported by the evidence. Hence, the affirmation of the appealed judgment is inevitable.

Statement of the Case

Rosdia Hajili and Normina Unday appeal the February 21, 2001 Decision 1 of the Regional Trial Court (RTC) of Zamboanga City (Branch 16) in Criminal Case Nos. 16263 and 16264. They were found guilty of violating Sections 15 and 16 of Article III of Republic Act No. 6425 as amended. The dispositive portion of the assailed Decision reads as follows:
"WHEREFORE, the Court renders judgment as follows: "1.In Criminal Case No. 16263, finding both Rosdia Hajili y Sakilan a.k.a. Rosdia Hajili y Jayadi alias 'Hadji Usdi' and Normina Unday y Aloh GUILTY BEYOND REASONABLE DOUBT of the crime of Violation of Section 15, Article III of Republic Act No. 6425, as amended, also known as The Dangerous Drugs Act of 1972, and SENTENCING each of said accused to suffer the penalty of RECLUSION PERPETUA and its accessory penalties, to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) pesos each, and to pay the costs; and "2.In Criminal Case No. 16264, finding accused Rosdia Hajili y Sakilan a.k.a. Rosdia Hajili y Jayadi alias'Hadji Usdi' GUILTY BEYOND REASONABLE DOUBT of the crime of Violation of Section 16, Article III of Republic Act No. 6425, also known as The Dangerous Drugs Act of 1972 and SENTENCING said accused to suffer the indeterminate penalty of SIX (6) MONTHS of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as maximum, and to pay the costs." 2

Appellants were charged in two separate Informations, 3 both dated August 24, 1999. In Criminal Case No. 16263, the Information reads:

"That on or about August 23, 1999, in the City of Zamboanga, Philippines; and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting . . . one another, not being authorized by law to sell, deliver, give away to another, transport or distribute any regulated drug, did then and there wil[l]fully, unlawfully and feloniously, sell and deliver to PO3 ENRIQUE C. RIVERA, PNP Tumba droga agent, who pose[d] as buyer, five (5) big transparent plastic packs containing 241.6338 grams of white crystalline substance which when subjected to qualitative examination gave positive result to the tests for Methamphetamine Hydrochloride (shabu), knowing same to be a regulated drug." 4

The Information in Criminal Case No. 16264 charges them as follows:

"That on or about August 23, 1999, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there wil[l]fully, unlawfully and feloniously have in [their] possession and under [their] custody and control one (1) medium transparent plastic pack containing white crystalline substance having a total weight of 4.0859 gram which when subjected to qualitative examination gave positive result to the tests for Methamphetamine Hydrochloride(Shabu), knowing the same to be a regulated drug." 5

During their arraignment on September 23, 1999 for Criminal Case No. 16263 6 and on October 25, 1999 for Criminal Case No. 16264, 7 appellants, assisted by their counsel de parte, 8 pleaded not guilty to the charges. After a joint trial of the cases, the lower court rendered the assailed Judgment.

The Facts Version of the Prosecution

In its Brief, the Office of the Solicitor General (OSG) presents the prosecution's version of the facts as follows:
"Around 3 o'clock in the afternoon of August 21, 1999, PO3 Enrique Climaco Rivera, then assigned to the Task Force Tumba Droga Team I, Zamboanga City, was on duty at police headquarters. Momentarily, a lady informant reported to P/Ins. Alfredo Francisco, the team leader, that a certain Rosdia was selling prohibited drugs at the second floor of

Mindpro [Citymall]. P/Ins. Francisco brought the lady informant to PO3 Rivera. P/Ins. Francisco instructed PO3 Rivera to go with the informant and verify the report. And after confirming the report to be true, he should negotiate with the suspect to buy shabu worth P200,000.00. The informant told PO3 Rivera that Rosdia was a big-time pusher. "PO3 Rivera and the lady informant proceeded to the second floor of Mindpro [Citymall] to look for Rosdia. After failing to find her at the mall, PO3 Rivera and the lady informant left. They agreed to return to the place the afternoon of the following day. "In the afternoon of August 22, 1999, PO3 Rivera and the lady informant went to Mindpro [Citymall] and proceeded to the second floor where they saw Rosdia taking a snack in an eatery. The informant told PO3 Rivera that she alone would approach Rosdia. After talking briefly to Rosdia, the informant waved at PO3 Rivera to join them. The informant introduced Rosdia to PO3 Rivera saying: 'Nelson, si Rosdia, yong sinasabi ko sa iyo.' PO3 Rivera and Rosdia shook hands. PO3 Rivera introduced himself as Nelson Yap, while Rosdia introduced herself as Rosdia Hajili. Rosdia asked PO3 Rivera if he had money. PO3 Rivera told her that he had P200,000.00 which he left at the hotel. Rosdia told him that the amount was just equivalent to five (5) lowest. One (1) lowest is a pack of shabu weighing more or less 50 grams. PO3 Rivera agreed to buy five (5) lowest. They agreed to meet again at 11 o'clock the following morning at the same place. Rosdia told PO3 Rivera to bring the money. Thereafter, PO3 Rivera and the informant left. They agreed to meet at the gate of the puericulture center fronting the Mindpro [Citymall] between 10:00 to 10:30 in the morning of the following day. "SPO3 Rivera returned to headquarters and reported what transpired to P/Insp. Francisco. They withdrew the amount of P200,000.00 from the Finance Section of the police. P/Insp. Francisco got a bag, put the money inside, and brought it to the office of Task Force Tumba Droga. P/Insp. Francisco conducted a short briefing on the planned buy-bust operation. The target of the buy-bust operation was a certain Rosdia Hajili who was frequently seen at Mindpro [Citymall]. PO3 Rivera was designated poseur-buyer while PO3 Alfredo S. Trumata would act as Rivera's back-up. The other members of the team were assigned as perimeter guards. It was agreed that when PO3 Rivera remove[s] his bull cap, it would mean that the deal was consummated. The members of Task Force Tumba Droga Team present at the briefing were P/Insp. Alfredo Francisco, PO3 Enrique Rivera, SPO1 Eduardo Bernardo, SPO1 Amado Mirasol, SPO1 Marcelino Herbano, PO3 Alfredo Trumata, PO3

Renato dela Pea, PO3 Allan Obut, PO1 Yasser Salonga and PO1 Hilda Montuno. "The next day, August 23, 1999, about 9 o'clock in the morning, PO3 Rivera and the rest of the members of the team were at the office of Task Force Tumba Droga. P/Insp. Francisco again conducted a short briefing. He reminded the members of the team to deploy themselves in strategic positions at the [Citymall] where they could not be seen. P/Insp. Francisco would post himself near the toilet where he could see PO3 Rivera. P/Ins Francisco handed over to PO3 Rivera the bag containing P200,000.00 in bundles of P10,000.00 each. The members of the team then proceeded to Mindpro [Citymall]. SPO3 Rivera boarded his motorcycle followed by the other members. "About an hour later, SPO3 Rivera and the informant met. They proceeded to the second floor of Midpro [Citymall] where they waited for Rosdia Hajili. Moments later, Rosdia arrived and approached PO3 Rivera and the lady informant. She asked SPO3 Rivera if he had the money with him. PO3 Rivera opened the bag and showed the contents to her. PO3 Rivera counted one bundle amounting to P10,000.00 in the presence of Rosdia. He took a P100.00 bill and gave it to the lady informant. He told the informant to buy snacks for them. After Rosdia was convinced, she told PO3 Rivera to come back at 2 o'clock in the afternoon in the same place to finalize their transaction. "At 1:30 in the afternoon, after a short briefing in their office, PO3 Rivera and the other members of the Task Force Tumba Droga Team returned to Mindpro [Citymall]. He brought the black bag containing marked money in the lesser amount of P6,000.00 and crumpled bond paper. Rosdia arrived at 2 o'clock in the afternoon accompanied by a man and a woman. Rosdia told PO3 Rivera that they would finalize the transaction at Baliwasan Chico, Sampaloc Drive. At first, PO3 Rivera expressed apprehension in bringing a big amount of money in that critical place. Rosdia, however, told him not to worry as she was from that place. PO3 Rivera excused himself. He went to the comfort room. He was followed inside by P/Insp. Francisco. PO3 Rivera informed Francisco that the transaction would be finalized in Baliwasan Chico, at Sampaloc Drive. P/Insp. Francisco told PO3 Rivera to go ahead because members of the team would be there. PO3 Rivera returned to their table. Rosdia Hajili and her two companions went down and boarded a tricycle. PO3 Rivera and the lady informant followed in another tricycle. The two tricycles headed towards Baliwasan Chico. P/Insp. Francisco and his team members furtively followed the two tricycles.

"The group arrived at Baliwasan Chico about 2:45 in the afternoon. Rosdia and her companions, together with PO3 Rivera and the lady informant, passed through a blue steel gate and into a bungalow house. Rosdia talked to one of its occupants. PO3 Rivera, the lady informant and Rosdia's two companions were left waiting at the terrace. Rosdia returned to the terrace and told PO3 Rivera and the lady informant that the house belonged to her friend. Rosdia instructed her companions to summon a certain Normina. Rosdia's companions left and proceeded to the interior portion of Sapang Palay. After a few minutes, Rosdia's companions returned with Normina Unday. Rosdia's companions then left the house. Rosdia instructed Normina to get the shabu.Normina also went out and headed for Sapang Palay. "A few minutes later, Normina Unday returned bringing with her a folded white plastic bag clasped under her armpit. She gave it to Rosdia Hajili. Rosdia inspected the contents of the white plastic bag and handed it over to PO3 Rivera. She told PO3 Rivera: 'Lima yan.' PO3 Rivera inspected the white plastic bag with the label TONG'S, containing five (5) transparent plastic packs of crystalline substance. PO3 Rivera then gave the pre-arranged signal to the buy-bust team members by removing his bull cap. Rosdia Hajili asked PO3 Rivera, 'Yung pera?' PO3 Rivera pretended to open the bag he was carrying. At that juncture, PO3 Rivera noticed the group of P/Sr. Insp. Francisco and PO3 Trumata entering the gate. PO3 Rivera identified himself as a policeman. He told Rosdia Hajili and Normina Unday that they were both under arrest. Normina Unday attempted to run but PO3 Rivera grabbed hold of her wrist and made her sit on the bench. Rosdia Hajili remained seated on the bench and did not offer any resistance. "PO3 Alfredo Trumata placed Rosdia Hajili under arrest. He confiscated from her a brown shoulder bag with brand name BON containing a medium size transparent plastic pack of suspected shabu. "PO3 Rivera turned over to the investigator, PO3 Dela Pea, the white plastic bag, marked TONG'S, containing five (5) big transparent plastic packs which contained white crystalline substance and the marked money in P100.00 bills amounting to P6,000.00 placed in two (2) brown mailing envelopes which were, in turn, placed inside a black bag. PO3 Trumata turned over a brown shoulder bag with brand name 'BON' which he confiscated from Rosdia Hajili. Inside, PO3 Trumata found a medium[-sized] heat-sealed transparent plastic pack containing suspected shabu.

"After their arrest, Rosdia Hajili and Normina Unday were brought to the police station. PO3 Rivera placed his markings 'ECR' (Enrique Climaco Rivera) on the confiscated items at the Office of Task Force Tumba Droga, particularly on the white plastic bag with the label TONG'S and on the five (5) big transparent plastic packs containing suspected shabu. "P/Sr. Insp. Mercedes Delfin-Diestro, Forensic Chemist, PNP Regional Crime Laboratory Office 9, conducted laboratory tests on the five (5) big transparent plastic packs containing white crystalline substance with a total weight of 241.6338 grams and one (1) medium-sized transparent plastic pack containing white crystalline substance, weighing 4.0889 grams. The specimens submitted proved POSITIVE for METHAMPHETAMINE HYDROCHOLORIDE (shabu), a regulated drug." 9

Version of the Defense

Denying the charges and claiming to be victims of a police frame-up, appellants present their version of the facts as follows:
". . . Rosdia Hajili y Jayadi, testified that . . . [s]he was previously arrested by the police and charged in court in connection with the violation of the Anti-Fencing Law, wherein she was detained and later acquitted. Among the arresting policemen was PO3 Trumata. On the day in question, August 22, 1999, she denies being at the Mindpro [Citymall] in the afternoon of the said date, since it was a Sunday, and that on the afternoon she had attended a wedding at the Garden Orchids Hotel together with Evangeline Asmad y Ayani who testified she met her neighbor, Appellant Rosdia Hajili. They even had their picture at the wedding taken together with Helen Sakkam. Appellant Hajili further aver . . . that she never went to Mindpro Citymall on that fateful day. As she was feeling ill and so much so that she had to go see a quack doctor ('tawal-tawal') for her fever at the house of Hadja Fatima in Baliwasan Chico. While she was being treated by Delma Abubakar, the quack doctor, policemen suddenly entered the house, among one of them was whom she recognized as PO3 Rivera in connection with her case for violation of the Anti-Fencing Law. She further declared before August 21, 22 and 23, 1999 she knew Rivera was a Police Officer. "On the other hand, Accused-Appellant . . . Normina Unday y Aloh, testified that . . . [s]he came to Zamboanga City for the first time on August 14, 1999 with her sister who was leaving for Saudi Arabia. They stayed at the house of Hadja Fatima who is the friend of her sister.

When her sister left for Saudi Arabia, she was employed as a house helper of Hadja Fatima. She further avers that on the afternoon of August 23, 1999, she was inside the bathroom of Hadja Fatima's house taking a bath and washing clothes when suddenly there was a knock at the door. Upon opening it she was confronted by a policeman holding a pistol by the door who brought her to the sala where . . . other policemen [were] gathered. At that time she was still wet. The policeman talked to them nicely that they will bring her and Rosdia Hajili to the police station and afterwards they will bring them back home. They were then taken to the police station at Sta. Barbara. After being searched they were then brought to the police station at Divisoria [where] they stayed for two nights, after which they were then brought to the city jail. Accused-Appellant Unday further . . . denies that she brought shabu upon the instruction of Accused-Appellant Rosdia Hajili to the house of Hadja Fatima. She said that she has not sold shabu to anyone at any time." 10

Ruling of the Trial Court

The trial court gave credence to the evidence of the prosecution and found the buy-bust operation lawful. It held that the apprehending police officers could not have merely concocted the facts, which they had clearly and convincingly narrated in their respective testimonies. Thus, it upheld the presumption that they had performed their duties in a regular manner, since no evidence to the contrary had been presented.
AacSTE

Moreover, the trial court rejected appellants' defense of frame-up, because it found the testimonies of the accused and their witnesses to be dubious and unconvincing. It declared as suspicious the statement that the police officers had simply barged into the house and escorted both of the accused to the police station without any explanation. It was convinced that the policemen had been led to the house by the accused Hajili in connection with a drug transaction she had previously arranged with PO3 Rivera. Hence, this appeal.
11

Issues
In their Brief, appellants raise the following assignment of errors for our consideration:
"I

That the court a quo erred when it did not dismiss the charges against both appellants on the ground that their guilt was not prove[n] beyond reasonable doubt. "II The trial court erred when it held there was conspiracy between the two appellants. "III The trial court erred when it resolved the case against both appellants because public officers have in their favor the presumption that they did their job regularly in the performance of their duties." 12

In short, appellants are questioning (1) the sufficiency of the prosecution evidence and (2) the regularity of the conduct of the buy-bust operation.

The Court's Ruling

The appeal has no merit.

First Issue: Sufficiency of the Prosecution Evidence

In a prosecution for illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence. 13 On the other hand, in a prosecution for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. 14 A review of the records and the transcripts of stenographic notes of these cases reveals that the prosecution has proven the presence of these elements. Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust operation. Furthermore, this Court is guided by the entrenched rule that the assessment of witnesses and their testimonies is a matter best undertaken by the trial court, which had the opportunity to observe the demeanor, conduct or attitude of the witnesses. The findings of the

lower court on this point are accorded great respect and will not be reversed on appeal, unless it overlooked substantial facts and circumstances which, if considered, would materially affect the result of the case. 15 PO3 Enrique Rivera, the poseur-buyer in the buy-bust operation, positively identified Hajili and Unday as the peddlers of the confiscated shabu. He testified thus:
"QSo, on the following day, August 22, at about past 3:00, tell this Honorable Court where were you? AI was at the vicinity of the Puericulture Center, fronting the Citymall waiting for the informant. Q[Was] that [the] time and date and place . . . you [met] the informant? AYes, after a few minutes, she arrived and after we met we proceeded to the second floor of the Citymall. QThis time, when you arrived at the second floor of the Citymall, what happened? AWhen we arrived at the second floor, she was able to spot the subject taking a snack in one of the tables and she told me to wait for a while, while she goes and talks to the subject person. QAnd you said the informant was able to spot the target person taking a snack at that time[.] Was she alone or with a companion . . . when she was taking the snack? AThat time she was alone. QYour informant told you to wait because she will go and approach the target. What happened when the informant approached the target? AI saw them having a conversation[.] [A]fter that she [waved] her hand so I proceeded to where they were seated. QWhat did you do after [she waved] her hand? AI proceeded to were they were and when I arrived there, she introduced me to the subject person.

QHow were you introduced to the subject person? AThe informant introduced to me that I gave her name as Nelson. She said, 'Nelson, si Rosdia, yong sinasabi ko sa iyo' and then we [shook] hands. QYou said your informant introduced you to the target and she gave to you the name Rosdia Hajili after you gave your name as Nelson Yap. If you see her again, will you be able to identify her if you see her again? [A]Yes. QIf she is in the courtroom, please point to her? COURT INTERPRETER: Witness pointed to a person when asked [her] name identified [her]self as Rosdia [Hajili]. COURT: QYou were introduced as Nelson? ANelson Yap, your Honor. FISCAL LIM: QAfter that introduction, what happened next? ARosdia asked me 'Ikaw ba yong buyer?' I said[,] 'Yes,' so she asked me if I have money and I said 'Yes, I have money but I left it at the hotel.' So she asked me how much am I buying then I told her worth P200,0000. And I ask what is the equivalent of that and she told me it is just equivalent to 5 lowest. That is the term . . . used [by] drug traffickers which means more or less 50 grams per plastic worth P40,000.00. QYou said, Mr. Witness that Rosdia [Hajili] told you that your money worth P200,000.00 is only equivalent to five (5) lowest, what happened next, after that? ASo, I agreed that it was okay then she also told me, all right, in that case we will see each other tomorrow at 11:00, the same place,

but you have to bring along the money. According to her, I have to bring money to make sure that I really have such amount. xxx xxx xxx QYou said, you returned back to your office. About what time was that when you arrived there at your office? AIt was already 4:00 o'clock. QWhen you arrived in the office, tell this Honorable Court what did you do there? AWhen I arrived, Ins. Francisco was around so I informed him about the deal that I was able to take with the subject Rosdia Hajili and was able to transact and we agreed to have a deal and that I have to bring money tomorrow at 11:00 o'clock, the same place, so I also [told] Ins. Francisco that the money worth P200,000.00 is only worth 5-lowest. Ins. Francisco told me that, all right, we will withdraw money from the Finance Section. " 16 "FISCAL CABARON: QMr. Witness, what time was that when you arrived at Mindpro [Citymall] in the morning of August 23, 1999, when you met your Informant there on your way to the second floor? AAbout 10:10 in the morning. xxx xxx xxx QWhat happened when you said she appeared, who was that suspect who arrived? ARosdia Hajili. xxx xxx xxx

AShe approached . . . our table and sat down and asked me if I have the money. QWhat did you tell her?

AI told her 'Yes, I have the money. I am bringing it now with me.' xxx xxx xxx QYou said, that the suspect, Rosdia Hajili, peeped inside your bag and after she checked on your bag, what happened next? AAfter she peeped [at] the money that I [brought,] I even took . . . [it] and counted [it] in her presence [and it] amounted to P10,000.00 and after that I . . ./got P100.00 and gave [it] to my Informant and told [her] to buy; some snacks for us. xxx xxx xxx QWhat happened after that? ADuring our conversation . . . my Informant returned . . . and brought snacks and we ate and after consuming it, the suspect Rosdia Hajili told me that she was satisfied and she told me that we will be seeing again at 2:00 o'clock on the same afternoon, the same date, the same place. 17 xxx xxx xxx QWhat happened when you met there? AWe waited for the arrival of the subject Rosdia Hajili and it was already 2:00 o'clock, the same day[.] I noticed that . . . this time she was . . . with two companions[,] a male and a female compa[n]ion[.] [There] were three of them. QWhat happened Mr. Witness after the suspect arrived together with the two companions? AWe were waiting and . . . she told me that we will be finalizing at Baliwasan Chico and I asked where[.] What particular place at Baliwasan Chico and she told me at Sampaloc Drive and . . . I told her it is critical in that area [to bring a] big amount of money and we [might fall victims] there and she gave me an assurance that she is from that place and I agreed and we proceeded there. COURT: Q[Where] at Baliwasan Chico?

ASampaloc Drive. COURT: Proceed. FISCAL CABARON: Q[What happened after] you agreed that you will be going with her at Baliwasan Chico, Sampaloc Drive? AI [told her] that I have some personal necessity and I went to the Comfort Room and Inspector Francisco followed me and I informed him that we will be transferring to Baliwasan Chico and he gave me the assurance that I can go with them and I must not be worried because the group will follow behind. xxx xxx xxx QAbout what time was that when you left and boarded tricycles and proceeded to Baliwasan Chico? AAbout 2:25 in the afternoon: QWere you able to arrive at Baliwasan Chico? AYes. We arrived there at Baliwasan Chico. QParticularly could you point to any point of reference in Baliwasan Chico where you went together with Rosdia Hajili and her two companions? AWe went to the cemented road and inside there about 60 meters from the main road particularly near the house of former City Director Colonel Mohammid. QAbout what time was that when you arrived there? AMore or less it was already up to 2:45 in the afternoon. QWhat happened Mr. Witness, when you arrived there? AWhen we arrived there they went inside the house and we also followed[. I] and my Informant and her two companions were left in the terrace of the said house while Rosida Hajili proceeded

inside and I was also able to see that she was talking with one of the occupants of the house. QWhat happened next after you saw Rosdia Hajili talked with the occupants of the house inside? AThen, she went back and told me that we can stay there for a while; that is the house of a friend, we can stay there . . . for the final deal. xxx xxx xxx QWhat did you do there, Mr. Witness, at the terrace? AWe only wait[ed] there and after informing me that we can stay there[,] she instructed her two companions, the male and the female companions[,] to proceed and [fetch a] certain Nurmina. xxx xxx xxx QWhat did these two persons do after Rosdia Hajili directed them to call a certain Nurmina? AThe two companions left and proceeded to the interior part of the place at Sapang Palay Portion and after [a] few minutes they returned . . . bringing [a] bag along with them with another lady there [who was] later on identified as Nurmina. QWhen you said that a male and a female [companion] of Rosdia Hajili returned and [brought along another female that was] later on identified as Nurmina? AYes. QAnd if this Nurmina is around the Court Room, will you be able to identify her? AYes. QLook if this Nurmina is inside the Court Room please point to her? A(Witness pointing) [COURT INTERPRETER:]

Witness pointed to a woman in Court and when asked her name identified herself as Nurmina Unday. [FISCAL CABARON:] QWhat happened next when Nurmina Unday arrived together with the two companions of Rosdia Hajili? AHer two companions left us in the house and proceeded to the portion of the main door and proceeded outside and Rosdia Hajili instructed Nurmina Unday to get the shabu and so, immediately Nurmina Unday went out of the house and proceeded again where they came from at [Sapang Palay]. QWhat happened next when Nurmina Unday left and proceeded to the the inner portion of [Sapang Palay]? AAfter a few minutes Nurmina Unday came back and she was bringing along with her a white plastic cello[phane] and upon arrival Nurmina Unday handed the white plastic cello[phane] to Rosdia Hajili. QWhat happened next when Nurmina Unday handed the plastic cello[phane] to Rosdia Hajili? ARosdia Hajili opened the plastic cello[phane] and inspected the contents and later on she gave me the cello[phane] and told me 'Lima Yan'. COURT: QWhere were you at that precise time? AI was on the bench of the terrace. COURT: Proceed. FISCAL CABARON: QWhat did you do after this Rosdia Hajili handed to you this plastic cello[phane] and said[,] 'Lima Yan', what did you do?

AI also inspected the contents of it the contents of the Jollibee plastic bag containing crystalline substance and it [contained] shabu and while inspecting it when I saw that it is shabu I made my pre-arranged signal . . . and I noticed that at the same time when I gave my pre-arranged signal Rosdia Hajili was asking the payment 'yung pera' and when she demanded the payment I pretended to open the bag and, at this juncture, I noticed that the group of Inspector Francisco and Trumata was already inside the gate and at this juncture, I also identified myself as a policeman[,] 'Pulis kami huwag kayong kikilos arestado kayo.' Nurmina Unday was about [to] run and I was able to hold her wrist and I let her sit on the bench and Rosdia Hajili remained sitting with no resistance[.] She remained seated on the bench and, at this juncture, Your Honor, Alfredo Trumata placed Rosdia Hajili under arrest and I was able to see that Alfredo Trumata recovered a . . . small brown shoulder bag from Rosdia Hajili and I noticed that Alfredo Trumata recovered a plastic chasi containing a suspected shabu from that bag. COURT: Proceed. FISCAL CABARON: QMr. Witness, what else transpired after the group of Inspector Francisco was already there and you have already effected the arrest of the two suspects Nurmina Unday and Rosdia Hajili? AAt this juncture, I turned over the shabu plastic bag inside the cello[phane] containing the suspectedshabu to our Investigator PO3 Renato Dela Pea and the marked money [which was] (P6,000.00) six thousand pesos and the crumpled bond paper and returned to PO3 Renato Dela Pea and Alfredo Trumata turned over to our Investigator the bag of Nurmina Unday containing a small plastic cello[phane] containing shabu. QWhat happened to the Informant after you arrested the two suspects Nurmina Unday and Rosdia Hajili? A. . . [W]hen there [was a] commotion [the Informant] went out of the house and she disappeared and she left. xxx xxx xxx

FISCAL CABARON: QNow, after the arrest of Rosdia Hajili and Nurmina Unday, Mr. Witness, you said you turned over the cello[phane] which [contains] the five packs of shabu inside the cello[phane] (plastic) . . . to the Investigator and likewise you turned over the bag which [contains the shabu recovered from] the buy-bust operation, what did you do next? AInspector Francisco called thru the radio to fetch us with the vehicle[.] . . . [As] soon as the vehicle arrived we boarded in the vehicle with Renato Dela Pea, Alfredo Trumata and the two suspects boarded the vehicle and then, we proceeded to the station. QWhat happened when you arrived at the station? AUpon arrival we booked in the investigation . . . the two suspects. QYou said you booked them in[. Was] the arrest of the two suspects registered in your Office? AYes. It was registered."
18

The foregoing testimony was substantially corroborated by PO3 Renato Dela Pea 19 and PO3 Alfredo Trumata. 20 The clear, straightforward and consistent testimonies of the police officers sufficiently support the trial court's conclusions. The allegation that Appellant Hajili knew the poseur-buyer to be a policeman is not a ground for inferring that she could not have sold the illegal drugs to him. Such sales to police officers do take place nowadays. 21 Furthermore, the prosecution was able to establish that the substance obtained from appellants was shabu. Physical Sciences Report No. D-531-99 22 states: "Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for the presence of METHAMPHETAMINE HYDROCHLORIDE (shabu), a regulated drug."

Conspiracy
We are not persuaded by the argument of appellants that conspiracy was not duly proven. Their behavior during the entrapment shows that there was conspiracy between them. Direct proof is not essential to the establishment of conspiracy, as it may be inferred from the acts of the accused before, during and after the commission of the crime. All such acts imply conspiracy when they

indubitably point to or indicate a joint purpose, a concert of action and a community of interest. 23

Second Issue: Defense of Frame-up or Hulidap

Appellants contend that they are victims of a police frame-up or hulidap. They assert that without any authority, permission or search warrant, the police officers suddenly barged into the house where they were staying and demanded money from its occupants. 24 We are not convinced. Once the elements of a crime have been established, the defense of frame-up or hulidap must be clearly proven by the defense. This defense is difficult to substantiate, as we have held in People v. Chen Tiz Chang: 25
"Courts generally view with disfavor this defense commonly raised in drug cases, for it is easy to concoct and difficult to prove. Moreover, there is a presumption that public officers, including the arresting officers, regularly perform their official duties. In the present case, the defense failed to overcome this presumption to present clear and convincing evidence to prove 'hulidap."'

In the cases at bar, the defense failed to support its allegations. The testimonies of appellants and other defense witnesses are silent on the claim that the apprehending policemen demanded hush money. Also, as aptly observed by the trial court, assuming that appellants had been brought to the police station and detained without any explanation, they could have filed charges administrative or criminal against the policemen. No complaints, however, were ever reported. Likewise, we find no merit in appellants' claim that the Zamboanga City policemen's use of the same method in conducting buy-bust operations is a reflection of the irregularity of the procedure. It must be noted that there is no rigid or textbook method of conducting buy-bust operations. 26 The choice of effective ways to apprehend drug dealers is within the ambit of police authority. Police officers have the expertise to determine which specific approaches are necessary to enforce their entrapment operations. The courts' duty in these cases is to ensure that the rights of the accused have not been violated during buy-bust operations.

Finally, the reliance of appellants on People v. Lim 27 is misplaced. Contrary to their assertion 28 in their Reply Brief, 29the facts in that case are hardly similar to those in the instant cases. In the aforementioned case, we found substantial inconsistencies in the testimonies of the police officers who had conducted the buy-bust operation. Significantly, the testimony of the poseur-buyer on the sale of illegal drugs was not credibly corroborated, thus, creating uncertainty on whether the crime had indeed been committed. There were no such attendant circumstances in the present cases. As mentioned earlier, appellants failed to destroy the credibility of the prosecution witnesses. The former alluded to inconsistencies that were, however, not specifically identified and supported. What is essential is that the prosecution witnesses positively identified appellants as the ones who had possessed the dangerous drug and sold it to the poseur-buyer.
AaCEDS

WHEREFORE, the appeal is DENIED and the appealed Decision AFFIRMED. Costs against appellants. SO ORDERED.

THIRD DIVISION
[G.R. No. 118590. July 30, 1996.] D.M. CONSUNJI, INC., petitioner, vs. RAMON S. ESGUERRA, in his capacity as Undersecretary of the Department of Justice, PROSPERO B. SEMANA, in his capacity as the Investigating Asst. City Prosecutor of Quezon City, EDUARDO L. CHING, and Spouses ANTHONY and CECILIA C. SAY, respondents.

Britanico & Consunji Law Offices for petitioner. Delfin G. Sy for private respondents. The Solicitor General for public respondents.
SYLLABUS

1.CRIMINAL LAW; ANTI-FENCING LAW; ELEMENTS OF THE CRIME. In DizonPamintuan vs. People, we discussed the elements of the crime of fencing: "(1) A crime of robbery or theft has been committed; (2) The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; (3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4) There is, on the part of accused, intent to gain for himself or for another." 2.ID.; ID.; ELEMENT OF KNOWLEDGE THAT THE ARTICLE, OBJECT OR ANYTHING OF VALUE HAS BEEN DERIVED FROM THE PROCEEDS OF THE CRIME OF ROBBERY OR THEFT; NOT ESTABLISHED IN CASE AT BAR. In the instant case, the first and second elements were duly established. Qualified theft had been committed. Quantities of phenolic plywood were stolen and were discovered in the premises of private respondents. The question is whether the third element exists. Did private respondents know or should they have known that the phenolic plywood were the subjects or proceeds of crime? DizonPamintuan gives us the guidelines: "One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence. Since Section 5 of P.D. 1612 expressly provides that '[m]ere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing,' it follows that the petitioner is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for no other natural or logical inference can arise from the established fact of her possession of the proceeds of the crime of robbery or theft. . . ." In the

aforementioned case, the accused was unable to rebut the prima facie presumption by failing to present her supplier/dealer, who allegedly was the source of the stolen jewelry; neither did she establish that the latter was a licensed supplier/dealer of jewelry. This is not so in the case at bar. It is uncontested that private respondents presented sales receipts covering their purchases of the subject phenolic plywood. In respondent Ching's case, he alleges that he purchased the phenolic plywood from agents of Paramount Industrial which is a known hardware store in Caloocan City and that his purchases were covered by receipts. On the other hand, the Spouses Say likewise claim that they bought the plywood from MC Industrial Sales which is a registered business establishment licensed to sell construction materials and that their purchases too were covered by receipts. Thus, the prima facie presumption was successfully disputed. The logical inference follows that private respondents had no reason to suspect that said plywoods were the proceeds of qualified theft or any other crime. Admittedly, there is no jurisprudence to the effect that a receipt is a sufficient defense against charges of fencing. But logically, and for all practical purposes, such receipt is proof although disputable that the transaction in question is above-board and legitimate. Absent other evidence, the presumption of innocence remains. 3.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI DOES NOT LIE IN CASE AT BAR. Grave abuse of discretion cannot be successfully imputed upon public respondents. Grave abuse of discretion has been defined thus: "By 'grave abuse of discretion' is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. . . . " At the risk of being repetitious, we reiterate that public respondents had sufficient and substantial basis for the dismissal of the complaint as against private respondents. 4.ID.; ID.; MANDAMUS; DOES NOT LIE TO COMPEL THE FILING OF AN INFORMATION ABSENT GRAVE ABUSE OF DISCRETION ON THE PART OF THE PUBLIC PROSECUTORS CONCERNED; CASE AT BAR. The rule is settled that our duty in an appropriate case is confined to determining whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion. Thus, although it is entirely possible that the investigating fiscal may erroneously exercise the discretion lodged in him by law, this does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari,

absent any showing of grave abuse of discretion amounting to excess of jurisdiction. In this case, it is obvious that such a grave abuse of discretion is not present. Even if the Court can compel the fiscal to file the information against private respondents, no clear legal right has been shown, no sufficient evidence of guilt and no prima facie case has been presented by the petitioner. In Quiso vs. Sandiganbayan, this Court pointed out that: ". . . [A] fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. Although this power and prerogative . . . is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion he does not have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case." The aforecited rule applies in this case. The Court holds that the remedy of mandamus does not lie to compel public respondents to file an Information against private respondents. There being no showing of grave abuse of discretion on the part of public respondents which would warrant the overturning of their decision to dismiss the complaint against the private respondents, corollarily, there is also no ground to issue a writ of mandamus. 5.ID.; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; ESSENTIAL. It should be added that preliminary investigation is necessary to protect the innocent from the rigors, embarrassment, anxiety and expense of a criminal prosecution, the prosecutor from filing cases which he cannot prove, and the courts from being overly burdened with unnecessary caseloads. DECISION PANGANIBAN, J :
p

Will the writ of certiorari issue to reverse the dismissal of a complaint by the Investigating Prosecutor, which dismissal was upheld by the Undersecretary of Justice? Corollarily, is mandamus available to compel said prosecutor to file an information against private respondents? These questions were answered by this Court in resolving the instant petition for certiorari and mandamus under Rule 65 of the Rules of Court seeking to set aside the Order 1 dated October 18, 1994 issued by respondent Undersecretary of Justice denying the appeal of petitioner and upholding the Resolution 2 of

respondent Prosecutor dismissing the criminal complaint docketed as I.S. 912012 for "Violation of P.D. 1612 (Anti-Fencing Law of 1979)" against private respondents. After receipt of and judicious deliberation on the Comments of respondents and the Consolidated Reply, the Court considered the case submitted for resolution without need of memoranda by the parties.

The Facts
As a result of conducting an inventory, petitioner discovered that there was systematic pilferage of company properties by stock clerks and drivers for almost a year. Losses occasioned thereby amounted to "not less than" six million five hundred thousand pesos (P6,500,000.00). 3 The pilfered materials were diverted and sold to hardware stores in Cubao, Quezon City, identified as the MC Industrial Sales and the Seato Trading Company, Inc., owned by private respondent Ching and Spouses Say, respectively. 4 Petitioner sought the assistance of the National Bureau of Investigation (NBI) to further investigate the pilferages in order for it to take the appropriate legal action against the persons responsible.

In the afternoon of August 28, 1991, pursuant to search warrants 5 issued by Judge Felix M. de Guzman, Branch 99, Regional Trial Court, Quezon City, a search was conducted in the premises of Eduardo Ching at 15-A and C and No. 22 Pittsburgh St., Cubao, and in the premises of the San Juan Enterprises/Seato Trading Inc. (owned by Anthony and Cecilia Say) located at No. 110 20th Avenue, Cubao, Quezon City. Seized from Ching were three (3) pieces of phenolic plywood, and from the Spouses Say, six hundred fifteen (615) pieces of such plywood. 6 The seized items had an estimated aggregate value of one million pesos (P1,000,000,00). 7 These items were later identified by petitioner corporation as among those stolen/pilfered from its warehouse in Cainta, Rizal. 8 After investigation, the NBI filed on August 29, 1991 a complaint with the Quezon City Prosecutor's Office recommending the prosecution of private respondent Eduardo L. Ching for violation of P.D. 1612, otherwise known as the Anti-Fencing Law. On September 25, 1991, the NBI filed another complaint with the same office recommending the prosecution of private respondents Anthony Say and Cecilia Say for the same violation. 9 Both complaints were later consolidated and assigned to public respondent Asst. City Prosecutor Semana for

preliminary investigation. The NBI also recommended the prosecution of several employees of the petitioner for qualified theft. 10 Upon evaluating the affidavits of witnesses, counter-affidavits and reply affidavits, the investigating prosecutor in his Resolution 11 recommended dismissal of the case against private respondents, reasoning in part that:
"Fencing as defined by law is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should have known to him (sic), to have been derived from the proceeds of the crime of robbery or theft. "When SEATO TRADING bought the said marine plywoods from EDUARDO CHING, there is no doubt that the Spouses SAY were buying legitimate goods. They never had any suspicious (sic), even the slightest suspicion, that those marine plywoods were allegedly the subject of thievery since they were buying from a legitimate business enterprises (sic) engaged in the selling of construction materials. They never suspected and they do (sic) not have any reason to suspect because 'M.C. Industrial Sales', owned and operated by the Spouses Ching, is duly registered and licensed establishment engaged in the selling of construction materials. Moreover, the SAYS were duly given the proper receipts/sales invoice for all purchases they made from the CHING'S (sic) thus making the transaction over and abovementioned (sic) of what is legitimate. The same is true in the case of the Spouses Ching. Ernesto Ching bought those plywoods on the representation of Ernesto Yabut and a certain Reyes that they are employees of Paramount Industrial. Eduardo Ching did not have any reason to suspect that what he was buying were the objects of theft because for all purchases he made, he was likewise issued the corresponding receipts/sales invoice. The sales agents in the persons of Ernesto Yabut and a certain Reyes were able to produce sales invoice of their firm in all those transactions and that those goods appeared new and unsold. The misrepresentation of Yabut coupled by the circumstances of issuing legal and valid sales invoice of Paramount Industrial which appears to be a legitimate establishment engaged in the selling of construction materials and the condition of the goods that were sold being new and unused leaves no reason for Ching to became (sic) suspicious that those marine plywoods were stolen."

On August 20, 1992, respondent Semana's recommendation was approved by First Assistant City Prosecutor Ramon M. Gerona, by authority of the Quezon City Prosecutor. 12 Petitioner filed a motion for reconsideration 13 which was denied in another approved Resolution dated August 17, 1991. 14 On September 28, 1994, petitioner filed a petition for review with the Department of Justice. 15 Finding no reversible error committed by the Investigating Prosecutor in its Resolution, and for failure of the petitioner to comply with certain formal requirements for such appeal, the same was denied on October 18, 1994 by respondent Undersecretary Esguerra.16 Hence, this petition.

The Issues
Petitioner now charges the public respondent Undersecretary of Justice with having "seriously erred and committed grave abuse of discretion" in
"I.. . . upholding the resolution of Assistant City Prosecutor Prospero B. Semana, in dismissing the case against the private respondents (and) II.. . . dismissing the case for failure of the petitioner to comply with the Department Order."

In fine, the only issues raised are whether or not grave abuse of discretion was committed by the respondent Investigating Prosecutor in dismissing, and by the Undersecretary of Justice in upholding the dismissal of the anti-fencing case against private respondents, and if so, whether mandamus should issue to compel them to file the appropriate information against private respondent.

The Court's Ruling Certiorari Does Not Lie

Petitioner contends that public respondents "committed grave abuse of discretion . . . in refusing to apply the rule in preliminary investigation" that only "probable cause" and not "sufficiency of evidence to establish guilt" is necessary "for the filing of information to the court by the investigating officer." 17 Such evidence "which established the existence of facts and circumstances as would excite the belief in a reasonable mind as acting on the facts within the knowledge of the prosecutor that (private respondents) are guilty of the crime for which they are being prosecuted" 18 are to be found, petitioner insists, in the sworn statements of the employees of petitioner who were investigated by the NBI, namely:

Edmund Corate, Cayetano Rodriguez, Augusto Datu, Clemente Revilla, Reynaldo Reyes, and Ernesto Yabut, and in the statements of private respondents. The Solicitor General disagrees, arguing in his Comment 19 that no clear or concrete proof was submitted to show that private respondents were aware that the pieces of phenolic plywood they bought were the objects of robbery or theft, an essential element in the crime of fencing. Thus, no grave abuse of discretion was attributable to the public respondents. On the other hand, respondent Spouses Say claim that there was no evidence linking them to the crime and the "affidavits of the witnesses failed to mention their names or implicate them in the alleged illegal transaction." Petitioner however retorted that, contrary to the contention of the Solicitor General and private respondents, mere possession by private respondents of the stolen phenolic plywood constituted prima facie evidence of fencing, according to Section 5 of P.D. 1612. Further, the sales invoices presented by respondent Spouses Say did not exculpate them because such invoices cannot overcome the presumption in Section 5. Petitioner's position is clearly untenable and cannot be sustained. In DizonPamintuan vs. People, 20 we discussed the elements of the crime of fencing:
"(1)A crime of robbery or theft has been committed; (2)The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; (3)The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4)There is, on the part of accused, intent to gain for himself or for another."

In the instant case, the first and second elements were duly established. Qualified theft had been committed. Quantities of phenolic plywood were stolen and were discovered in the premises of private respondents. The question is whether the third element exists. Did private respondents know or should they have known that the phenolic plywood were the subjects or proceeds of crime?

Dizon-Pamintuan 21 gives us the guidelines:

"One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exists. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence. Since Section 5 of P.D. 1612 expressly provides that '[m]ere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing,' it follows that the petitioner is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for no other natural or logical inference can arise from the established fact of her possession of the proceeds of the crime of robbery or theft. . . ."

In the aforementioned case, the accused was unable to rebut the prima facie presumption by failing to present her supplier/dealer, who allegedly was the source of the stolen jewelry; neither did she establish that the latter was a licensed supplier/dealer of jewelry. 22 This is not so in the case at bar. It is uncontested that private respondents presented sales receipts covering their purchases of the subject phenolic plywood. In respondent Ching's case, he alleges that he purchased the phenolic plywood from agents of Paramount Industrial which is a known hardware store in Caloocan City and that his purchases were covered by receipts. 23 On the other hand, the Spouses Say likewise claim that they bought the plywood from MC Industrial Sales which is a registered business establishment licensed to sell

construction materials and that their purchases too were covered by receipts. 24 Thus, the prima facie presumption was successfully disputed. The logical inference follows that private respondents had no reason to suspect that said plywoods were the proceeds of qualified theft or any other crime. Admittedly, there is no jurisprudence to the effect that a receipt is a sufficient defense against charges of fencing. But logically, and for all practical purposes, such receipt is proof although disputable that the transaction in question is above-board and legitimate. Absent other evidence, the presumption of innocence remains. Thus, grave abuse of discretion cannot be successfully imputed upon public respondents. Grave abuse of discretion has been defined thus:
"By 'grave abuse of discretion' is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty to or a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. . . ." 25

At the risk of being repetitious, we reiterate that public respondents had sufficient and substantial basis for the dismissal of the complaint as against private respondents.

Mandamus Is Improper
The Solicitor General posits that "the institution of a criminal action depends upon the sound discretion of the fiscal", who has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court. He may dismiss the complaint in the first instance if in his judgment the acts or omissions complained of are not illegal, unjust, improper or sufficient. 26 The Solicitor General further contends that since the institution of a criminal action involves the exercise of sound discretion, it is not a ministerial duty which can be compelled by mandamus. Petitioner in its Reply persists, and citing various authorities, 27 argues that "in extreme situations, generally in criminal cases, mandamus lies to compel the performance by the fiscal of what ostensibly are discretionary functions, where, by reason of grave abuse of discretion on his part, his actuations are tantamount to a willful refusal to perform a duty specifically required by law", and further, that the writ of mandamus may control discretion "in cases of gross abuse of discretion, manifest injustice, or palpable excess of authority." 28 In brief,

petitioner holds to the position that "[w]hen the prosecutor, who is performing discretionary functions abuses his discretion by refusing to file an information against the persons who appear to be responsible despite sufficient evidence, such refusal amounts to a deliberate refusal to perform a duty enjoined by law . . ." which rendered such prosecutor subject to the writ of mandamus. 29 Reviewing the cases cited by petitioner, we find that its contentions do not merit serious consideration. Mandamus was allowed in People vs. Orais, 30 not to compel the prosecutor to exercise his discretion in a particular manner, but to compel him to file an Information because he refused to do so in spite of the existence of prima facieevidence of guilt. There, the Court held:
". . . But he may as we already have said, resort to the extraordinary remedy of mandamus to compel the fiscal to proceed with the case and the judge, who ordered the dismissal, to restore it, if the evidence in the preliminary investigation and that submitted to the fiscal establishes prima facie the guilt of the accused."

In Antiquera vs. Baluyot, supra, mandamus issued, not with respect to the determination of probable cause, but rather on account of the refusal of the then Secretary of the Interior to grant retirement gratuity to the petitioner in spite of the plain and only requirement of law that in order to be entitled thereto, the employee be separated from service by reason of reorganization. The case of Bernabe vs. Bolinas, Jr., allowed mandamus to compel the fiscal to amend the offense charged in the Information from homicide to murder because there was treachery based on the testimonies of the witnesses. In De Castro, Jr. vs. Castaeda, the issue was whether the fiscal could be compelled by mandamus to include all the accused "who appear responsible for the commission of an offense . . . in the information . . ." as there was sufficient evidence of their guilt. This Court ruled in the affirmative. In the recent case of Roberts, at al. vs. Court of Appeals, et al., 31 this Court held that in criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative:
". . . The determination of probable cause for the 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 and, therefore, whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. xxx xxx xxx We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge . . . ."

The preliminary investigation on the case at bar falls under the first kind. Thus, the decision whether or not to dismiss the complaint against private respondents is necessarily dependent on the sound discretion of the prosecuting fiscal and, ultimately, that of the Secretary or Undersecretary (acting for the Secretary) of Justice. In Lim vs. Court of Appeals, 32 we reiterated the rule of long standing that the matter of deciding who to prosecute is a prerogative of the prosecuting fiscal:
"Further to the argument concerning the non-inclusion of the prosecution witnesses as additional accused in the case of violation of the Anti-Fencing Law, it may be observed that this bare assertion overlooks the fact that it is the fiscal, as a quasi-judicial officer, who assumes full discretion and control of the case and this faculty may not be interfered with, for a prosecutor may not be compelled by mandamus to file a criminal information where he is convinced that he does not have the necessary evidence against an individual. . . ."

And as for this Court, the rule is settled that our duty in an appropriate case is confined to determining whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion. 33 Thus, although it is entirely possible that the investigating fiscal may erroneously exercise the discretion lodged in him by law, this does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.34

In this case, it is obvious that such a grave abuse of discretion is not present. Even if the Court can compel the fiscal to file the information against private respondents, no clear legal right has been shown, no sufficient evidence of guilt and no prima facie case has been presented by the petitioner. In Quiso vs. Sandiganbayan,
35

this Court pointed out that:

". . . [A] fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. Although this power and prerogative . . . is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion he does not have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case."

The aforecited rule applies in this case. The Court holds that the remedy of mandamus does not lie to compel public respondents to file an Information against private respondents. There being no showing of grave abuse of discretion on the part of public respondents which would warrant the overturning of their decision to dismiss the complaint against the private respondents, corollarily, there is also no ground to issue a writ of mandamus. It should be added that preliminary investigation is necessary to protect the innocent from the rigors, embarrassment, anxiety and expense of a criminal prosecution, the prosecutor from filing cases which he cannot prove, and the courts from being overly burdened with unnecessary caseloads.

WHEREFORE, premises considered, the instant Petition is hereby DISMISSED for lack of merit. SO ORDERED.

EN BANC
[G.R. No. 121592. July 5, 1996.] ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents.

Pete Quirino-Quadra for petitioner. Leonardo G. Ragaza, Sr. for private respondent. The Solicitor General for public respondents.
SYLLABUS 1.ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; DISQUALIFICATIONS FROM RUNNING FOR ANY ELECTIVE POSITION; MORAL TURPITUDE AS A GROUND, DEFINED. The Court has consistently adopted the definition in Black's Law Dictionary of "moral turpitude" as: ". . . an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals." 2.ID.; ID.; ID.; WHETHER OR NOT A CRIME INVOLVES MORAL TURPITUDE IS ULTIMATELY A QUESTION OF FACT AND DEPENDS ON ALL THE CIRCUMSTANCES SURROUNDING THE VIOLATION OF THE STATUTE. Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the Supreme Court to determine." In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in "Zari v. Flores," to wit: "It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited." This guideline nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC," the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute.

3.ID.; ID.; ID.; CONVICTION FOR AN OFFENSE INVOLVING MORAL TURPITUDE STANDS EVEN IF THE CANDIDATE WAS GRANTED PROBATION FOR THE SAME CRIME. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioner's conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. Clearly then, petitioner's theory has no merit. 4.CRIMINAL LAW; ANTI-FENCING LAW (P.D. 1612); FENCING; DEFINED. Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as: "a. . . . the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft." 5.ID.; ID.; ID.; ELEMENTS. From the foregoing definition may be gleaned the elements of the crime of fencing which are: "1. A crime of robbery or theft has been committed; 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime. 3. The accused knows or should have known that the said article,

item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is, on the part of the accused, intent to
gain for himself or for another."

6.ID.; ID.; ID.; IS A CRIME INVOLVING MORAL TURPITUDE. Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft, which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded one's peaceful dominion for gain thus deliberately reneging in the process "private duties" they owe their "fellowmen" or "society" in the manner

"contrary to . . . accepted and customary rule of right and duty . . ., justice, honesty . . . or good morals." The same underlying reason holds even if the "fence" did not have actual knowledge, but merely "should have known" the origin of the property received. In this regard, the Court held: "When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words 'should

know' denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists." Verily, circumstances

normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the same may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, . . ., object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing" a presumption that is, according to the Court, "reasonable for no other natural or logical inference can arise from the established fact of. . . possession of the proceeds of the crime of robbery or theft." RESOLUTION FRANCISCO, J :
p

Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC. 1 The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8, 1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) 2 provides as follows:

"Sec. 40.Disqualifications. The following persons are disqualified from running for any elective local position: "(a)Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence; "(b). . .

In disqualifying the petitioner, the COMELEC held that:

"Documentary evidence . . . established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court, . . . in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-Fencing Law) in a Decision dated June 1, 1990. Respondent appealed the said conviction with the Regional Trial Court . . ., which however, affirmed respondent's conviction in a Decision dated November 14, 1990. Respondent's conviction became final on January 18, 1991. "xxx xxx xxx ". . . , there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is 'dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D. 1612' . . . , the nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude . . ." 3

The second assailed resolution, dated August 28, 1995, denied petitioner's motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well. 4 The two (2) issues to be resolved are: 1.Whether or not the crime of fencing involves moral turpitude. 2.Whether or not a grant of probation affects Section 40 (a)'s applicability. Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for

disqualifications i.e., "when the conviction by final judgment is for an offense involving moral turpitude." And in this connection, the Court has consistently adopted the definition in Black's Law Dictionary of"moral turpitude" as:

". . . an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals." 5

Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the Supreme Court to determine". 6 In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not 7 , the rationale of which was set forth in "Zari v. Flores," 8 to wit:
"It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited." 9

This guideline nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC," 10 the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. 11 The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or

not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone. Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as:
"a.. . . the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been deprived from the proceeds of the crime of robbery or theft." 12

From the foregoing definition may be gleaned the elements of the crime of fencing which are:
"1.A crime of robbery or theft has been committed; "2.The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been deprived from the proceeds of the said crime; "3.The accused knows or should have known that the said article, item,

object or anything of value has been derived from the proceeds of the crime of robbery or theft; and [Emphasis supplied.]

"4.There is, on the part of the accused, intent to gain for himself or for another." 13

Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded one's peaceful dominion for gain thus deliberately reneging in the process "private duties" they owe their "fellowmen" or "society" in a manner "contrary to . . . accepted and customary rule of right and duty . . ., justice, honesty . . . or good morals." The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on "Human Relations" and "Solutio Indebiti", to wit:

"Article 19.Every person must, in the exercise of his right and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith." "Article 20.Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same." "Article 21.Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs, or public policy shall compensate the latter for the damage." "Article 22.Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him." "Article 2154.If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises."

The same underlying reason holds even if the "fence" did not have actual knowledge, but merely "should have known"the origin of the property received. In this regard, the Court held:
"When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words 'should know' denote the fact

that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists." 14 [Emphasis supplied.]

Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No 1612 that "mere possession of any goods, . . ., object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing" a presumption that is, according to the Court," reasonable for no other natural or

logical inference can arise from the established fact of . . . possession of the proceeds of the crime of robbery or theft." 15 All told, the COMELEC did not err

in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability ofSection 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. 16 Petitioner's conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. 17 Clearly then, petitioner's theory has no merit. ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto. SO ORDERED.

FIRST DIVISION
[G.R. No. 149937. June 21, 2007.] ISMAEL F. MEJIA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION SANDOVAL-GUTIERREZ, J :
p

Before us is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision 1 of the Court of Appeals dated July 27, 2001 in CA-G.R. CR No. 15066 and its Resolutions dated

September 13, 2001 and October 22, 2001 denying petitioner's first and second motions for reconsideration. The facts are: Rodolfo M. Bernardo, Jr. was a client of Atty. Ismael F. Mejia, petitioner. Sometime in January 1985, Bernardo requested petitioner to pay his real estate taxes. Bernardo then delivered to petitioner a blank check. Petitioner wrote the amount of P27,700.00 thereon with his name as payee. Thereafter, he encashed the check. On March 14, 1985, petitioner furnished Bernardo a statement of account showing that only P17,700.00 was actually spent for realty taxes. Petitioner explained that he spent the remaining P10,000.00 for the hospitalization of his wife. Both parties treated this amount of P10,000.00 as petitioner's loan. Thereupon, petitioner requested Bernardo to lend him an additional amount of P40,000.00 as he needed the money for his wife's medication. Bernardo agreed and gave P40,000.00 more to petitioner. To secure the payment of his P50,000.00 loan, petitioner issued Philippine National Bank (PNB) Check No. 156919 dated May 15, 1985 in the amount of P50,000.00 in favor of Bernardo. Petitioner also handed to Bernardo a Promissory Note, also of the same date, stating that he will pay the loan on or before May 15, 1985.
CAIaDT

When the check became due and demandable, petitioner requested Bernardo not to encash it until July 15, 1985. But petitioner failed to pay on that day. Instead, he asked Bernardo again to defer the encashment of the check. On October 8, 1985, Bernardo deposited the check but it was dishonored by the PNB, the drawee bank, due to petitioner's closed account. Bernardo then sent petitioner a letter informing him that the check was dishonored and demanding payment therefor. But petitioner refused to pay. He then delivered a list of his attorney's fees to Bernardo which the latter did not pay. Eventually, Bernardo caused the filing with the Regional Trial Court, Branch 197, Pasig City an Information for violation of Batas Pambansa Blg. 22 (B.P. 22) against petitioner, thus:
That on or about the 14th day of March 1985 in the municipality of Pasig, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, and feloniously make out and issue a Philippine National Bank Check No. 156919 postdated May 15, 1985 in the amount of P50,000.00, in exchange for cash, well knowing that he did not have sufficient funds with the drawee bank for payment of such check in full upon presentment; that when said check was presented to the drawee

bank for payment, the same was dishonored and/or refused payment for the reason "ACCOUNT CLOSED", and the said accused, despite the lapse of five (5) banking days from notice of dishonor and repeated demands made upon him, failed and refused and still fails and refuses to make good the said check or to pay the value of the check, to the damage and prejudice of said Rodolfo M. Bernardo, Jr., in the aforementioned amount of P50,000.00, Philippine Currency. Contrary to law.

When arraigned, with the assistance of his counsel, petitioner pleaded not guilty to the offense charged. Trial ensued thereafter. On May 21, 1993, the trial court rendered its Decision, the dispositive portion of which reads:
WHEREFORE, this Court hereby finds the accused Ismael F. Mejia guilty beyond reasonable doubt of the crime of Violation of Batas Pambansa Bilang 22, and he is hereby sentenced to pay a FINE of P50,000.00 to the Government. Said accused is also hereby declared civilly liable to the offended party, Rodolfo M. Bernardo, Jr., and said accused is ordered to pay said offended party the value of the bouncing check in the amount of P50,000.00 with interest thereon of six percent (6%) per annum from November 15, 1985 until the same is fully paid, plus the amount of P10,000.00 as and for attorney's fees, in addition to the costs of the suit. SO ORDERED.
AHCcET

On appeal, the Court of Appeals, on July 27, 2001, rendered its Decision affirming with modification the judgment of the trial court, thus:
WHEREFORE, premises considered and pursuant to applicable law and jurisprudence on the matter and on evidence at hand, judgment is hereby rendered dismissing the instant appeal. However, the decision dated May 21, 1993 of the trial court is modified deleting the award of attorney's fees since no evidence was adduced to prove such fact. All other aspects of the decision are affirmed. No pronouncement as to costs. SO ORDERED.

Petitioner filed a motion for reconsideration but it was denied by the Court of Appeals in a Resolution dated September 13, 2001. Petitioner filed a second motion for reconsideration. Again, the appellate court, in its Resolution dated October 22, 2001, denied the same for being a prohibited pleading. Hence, the present petition. The basic issue for our resolution is whether the Court of Appeals erred in affirming the assailed Decision of the trial court convicting petitioner for violation of B.P. 22. For violation of B.P. 22, the prosecution must prove the following essential elements: (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. 2 The trial court found that petitioner issued the check as guarantee for his loan obtained from Bernardo. At the time he issued the check, he knew that his account with the PNB had been closed. When Bernardo deposited the check, it was dishonored by the PNB, the drawee bank, for the reason "account closed." Petitioner was duly notified of such dishonor. In fact, he admitted having received Bernardo's demand letter urging him to make good the check within five (5) banking days from notice. But petitioner failed to heed such demand. Settled is the rule that factual findings of the trial court which have been affirmed in toto by the Court of Appeals are entitled to great weight and respect by this Court and will not be disturbed absent any showing that the trial court overlooked certain facts and circumstances which could substantially affect the outcome of the case. 3 This exception is not present here.
acIHDA

It must be emphasized that the gravamen of the offense charge is the issuance of a bad check. 4 The purpose for which the check was issued, the terms and conditions relating to its issuance, or any agreement surrounding such issuance are irrelevant to the prosecution and conviction of petitioner. 5 To determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and

commercial value of checks as currency substitutes, and bring havoc in trade and in banking communities. 6 The clear intention of the framers of B.P. 22 is to make the mere act of issuing a worthless check malum prohibitum. 7 Petitioner, in praying for his acquittal, begs us to exercise mercy and compassion on him considering that he is a good man who has encountered so much pain and suffering in his life. While we sympathize with his seeming misfortunes, we cannot exonerate him. Courts are not the forum to plead for sympathy. The duty of courts is to apply the law, disregarding their feeling of sympathy or pity for an accused. The remedy is elsewhere clemency from the executive or an amendment of the law by the legislature, but surely, at this point, we cannot but apply the law. 8 WHEREFORE, we DENY the petition. The challenged Decision of the Court of Appeals and its twin Resolutions in CA-G.R. CR No. 15066 are AFFIRMED. Costs against petitioner. SO ORDERED.

Puno, C.J., Corona, Azcuna and Garcia, JJ., concur.

FIRST DIVISION
[G.R. No. 166810. June 26, 2008.] JUDE JOBY LOPEZ, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION LEONARDO-DE CASTRO, J :
p

This is a petition for review on certiorari filed by JUDE JOBY LOPEZ from the decision 1 dated January 12, 2005 of the Court of Appeals (CA), Ninth Division, in CA-G.R. CR No. 27057, affirming an earlier decision 2 of the Regional Trial Court (RTC), Branch 53, Sorsogon, Sorsogon, which found petitioner guilty beyond reasonable doubt of the crime of Estafa as defined under Article 315, par. 2 (d) of the Revised Penal Code, as amended by Republic Act (R.A.) No.

4885 and sentenced him to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, and to indemnify the private complainant in the amount of Twenty Thousand Pesos (P20,000.00) plus costs.
cAHIST

On October 6, 1998, in the RTC of Sorsogon, an Information for estafa was filed against herein petitioner Jude Joby G. Lopez which was docketed in as Criminal Case No. 98-4690. The said Information alleged:
That on or about March 23, 1998, in the municipality of Sorsogon, province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud, did then and there, willfully, unlawfully and feloniously, make, draw, and issue to apply on account and/or for value received a DBP Check No. 0859279 payable to EFREN R. ABLES in the amount of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, knowing fully well that at the time of issue, accused did not have sufficient fund and/or his account is already closed with the drawee bank and that upon presentment of the check for payment on May 27, 1998, the same was dishonored and/or refused payment by the drawee bank for the reason that the account of the said accused is already closed and/or without sufficient fund and despite repeated demands after receipt of notice of said dishonor and thereafter made by Efren R. Ables, accused refused and still refuses to pay the latter, to his damage and prejudice in the aforementioned amount of P20,000.00, Philippine Currency. Contrary to law.
3

When arraigned on April 13, 1999, petitioner pleaded "Not Guilty" 4 to the offense charged. During the trial on the merits, the prosecution presented the testimonies of private complainant Efren R. Ables and Valentin Luzuriaga, a bank teller of the Development Bank of the Philippines (DBP). The prosecution presented Exhibits "A" to "E" with submarkings consisting of the check issued by the petitioner, the demand letter sent by private complainant to petitioner and bank records to show that the said check was dishonored as the account was closed even before the said check was issued. All of the aforesaid exhibits were admitted by the trial court in its Order dated August 27, 2001. On the other hand, petitioner did not present any witness but only offered his documentary evidence, consisting of: Exh. 1 the said demand letter of the private complainant; Exh. 1-A stamp "Return to Sender" on the envelope of Exh. 1; Exh. 2 the Transcript of Stenographic Notes (TSN of the Hearing on December 20, 1999); Exh. 2-a, page 9 of the said TSN; and Exh. 2-b, the No. 5 question and answer in Exh. 2.

The trial court convicted the accused (herein petitioner) of the crime of estafa penalized by Article 315, par. 2 (d) of the Revised Penal Code as amended by R.A. No. 4885 in its decision dated June 17, 2002. The dispositive portion of the decision reads:
STECDc

WHEREFORE, the Court finds the accused Jude Joby G. Lopez guilty beyond reasonable doubt of the crime of ESTAFA defined and penalized under Art. 315, par. 2 (d) of the Revised Penal Code as amended by R.A. 4885 and taking into consideration the Indeterminate Sentence Law, the Court hereby sentences him to suffer an imprisonment of Six (6) years and One (1) day of prision mayor as minimum to Twelve (12) years and One (1) day of reclusion temporal as maximum and to indemnify the private complainant, Efren Ables in the amount of P20,000.00 Philippine currency and to pay the costs. SO ORDERED.
5

In his Motion for Reconsideration, petitioner, citing the case of Pacheco v. Court of Appeals (G.R. No. 126670, December 2, 1999, 319 SCRA 595), argued that Ables knew at the time of the issuance of the check that accused had no funds in the bank and therefore, the element of deceit was absent. The said Motion for Reconsideration was denied by the trial court. Petitioner appealed to the CA, reiterating his argument that the element of deceit was not proven and that the lower court imposed excessive penalty. The CA rendered its Decision on January 12, 2005 in CA-G.R. CR No. 27057 affirming in toto the decision of the trial court in this case. Hence, the petitioner interposed this appeal, contending that the CA erred 1.In affirming the decision of the lower court convicting the accused of the crime of estafa. 2.In not applying the provisions of the negotiable instruments law. 3.In not ruling on the excessive penalty imposed by the trial court. We find no merit in the instant appeal. Article 315, paragraph 2 (d), of the Revised Penal Code, as amended by R.A. 4885 penalizes estafa when committed as follows:
SIDEaA

2.By means of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: xxx xxx xxx d)By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

By settled jurisprudence, the elements of the crime of estafa, as defined in the above quoted provision of law, are as follows: (1) the offender has postdated or issued a check in payment of an obligation contracted at the time of the postdating or issuance; (2) at the time of postdating or issuance of said check, the offender has no funds in the bank or the funds deposited are not sufficient to cover the amount of the check; and (3) the payee has been defrauded. Damage and deceit are essential elements of the offense and must be established with satisfactory proof to warrant conviction, while the false pretense or fraudulent act must be committed prior to, or simultaneous with, the issuance of the bad check. The drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check, otherwise, a prima facie presumption of deceit arises. 6 Further it is settled that it is criminal fraud or deceit in the issuance of a check which is made punishable under the Revised Penal Code, and not the nonpayment of a debt. Deceit is the false representation of a matter of fact whether by words or conduct by false or misleading allegations or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury. Concealment which the law denotes as fraudulent implies a purpose or design to hide facts which the other party ought to have. The postdating or issuing of a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is a false pretense or a fraudulent act. 7
AHCETa

The trial court and the CA found these elements of the crime charged present in this case. There is no dispute as to the findings of fact of the CA that respondent

gave the sum of P20,000.00 to the accused in exchange for a postdated check in the same amount issued by petitioner and that the said check was dishonored by the bank. We quote the appellate court's factual findings, which sustained the trial court's decision as follows:
Indisputably, on March 23, 1998, appellant issued and postdated a check with a value equivalent to the sum of P20,000.00 which he obtained from Efren. He accomplished deceit when he led Efren to believe that, prior to, or simultaneous with, their arrangement, the subject check is good upon its maturity on April 30, 1998. However, the check turned out to be worthless because, when Efren deposited it with the Legaspi Savings Bank, the same was dishonored due to "Account Closed". Evidently, Efren was prejudiced and damaged by appellant's fraudulent ploy. 8

In the motion for reconsideration of the decision of the trial court finding petitioner guilty of the crime of estafa, the latter raised only the issue of whether or not deceit was proven by the prosecution. Petitioner likewise dwelt on the said issue in his appeal to the CA. Re: First and Second Assigned Errors In his first assignment of error, petitioner anchored his argument that no deceit was established by the prosecution because of the failure of the latter to prove the fact of receipt by petitioner of the notice of dishonor of the check. Petitioner argued that no presumption or prima facie evidence of guilt would arise if there is no proof as to the date of receipt by the drawer of the said notice "since there would simply be no way of reckoning the crucial 3-day period" from receipt of notice of dishonor of the check within which the amount necessary to cover the check may be done as provided by paragraph 2 (d) of Article 315 of the Revised Penal Code, as amended.
DACcIH

On this issue, the CA ruled as follows:

As against appellant's insistence, the prima facie presumption of deceit perforce applies here. It must be noted that exactly on the same day, May 29, 1998, after Efren received the Debit Memo (Exh. "B") on the rubber check from the Legaspi Savings Bank, he called, then sent a demand letter (Exh. "C") to, appellant, informing him of its dishonor. 9 (Emphasis supplied)

We sustain the CA. The receipt by the drawer of the notice of dishonor is not an element of the offense. The presumption only dispenses with the presentation of evidence of deceit if such notification is received and the drawer of the check failed to deposit the amount necessary to cover his check within three (3) days from receipt of the notice of dishonor of the check. The presumption indulged in by law does not preclude the presentation of other evidence to prove deceit. It is not disputed by petitioner that, as found by the CA, respondent Ables "called" up petitioner to inform him of the dishonor of the check. Moreover, when petitioner issued the check in question on March 23, 1998, he knew that his current account with the DBP was a closed account as early as January 27, 1998. Petitioner disclaim employing deceit by asserting that respondent knew that petitioner had no funds with the bank, as he was so informed by the petitioner himself at the time of the issuance of the check (Appellant's Brief, CA-G.R. No. 27057). Assuming that petitioner did so, petitioner could not escape culpability because he was not in a position to make good the check at any time since his current account was already closed. This fact petitioner failed to disclose to respondent.
IESTcD

The absence of proof as to receipt of the written notice of dishonor notwithstanding, the evidence shows that petitioner had actual notice of the dishonor of the check because he was verbally notified by the respondent and notice whether written or verbal was a surplusage and totally unnecessary considering that almost two (2) months before the issuance of the check, petitioner's current account was already closed. Under these circumstances, the notice of dishonor would have served no useful purpose as no deposit could be made in a closed bank account. Pertinently, Section 114 (d) of the Negotiable Instruments Law provides:
Sec. 114 When notice need not be given to drawer. Notice of dishonor is not required to be given to the drawer in either of the following cases: xxx xxx xxx d.Where the drawer has no right to expect or require that the drawee or acceptor will honor the check.

Since petitioner's bank account was already closed even before the issuance of the subject check, he had no right to expect or require the drawee bank to honor

his check. By virtue of the aforequoted provision of law, petitioner is not entitled to be given a notice of dishonor. We now review the penalties imposed by the appellate court, affirming in toto the judgment of the trial court.
IDcTEA

Presidential Decree (P.D.) No. 818 10 amended Article 315 of the Revised Penal Code insofar as the penalties for felonies under paragraph 2 (d) are concerned, viz.:
SEC. 1.Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2 (d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by: 1st.The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua; 2nd.The penalty of prision mayor in its maximum period, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd.The penalty of prision mayor in its medium period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and
TCDHaE

4th.By prision mayor in its minimum period, if such amount does not exceed 200 pesos.

The Indeterminate Sentence Law provides that if an offense is punished by the Revised Penal Code or its amendments, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, can be properly imposed under the rules of the Revised Penal Code, while the minimum term of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Under Article 315, as amended by P.D. No. 818, the penalty of reclusion temporal is imposed if the amount defraud is over P12,000.00 but does not exceed P22,000.00. The amount involved in this case is within the above-

mentioned range. Applying the Indeterminate Sentence Law, the maximum imposable penalty is reclusion temporal while the minimum term should be within the range of the penalty next lower to that prescribed by the Code for the offense, which is prision mayor. Thus, the CA correctly affirmed the penalty imposed by the trial court which is six (6) years and one (1) day ofprision mayor as minimum to twelve years (12) and one (1) day of reclusion temporal as maximum. WHEREFORE, premises considered, the petition is hereby DENIED for utter lack of merit, and the Decision appealed from is AFFIRMED in toto.
SDEHCc

SO ORDERED.

Puno, C.J., Carpio, Corona and Azcuna, JJ., concur.

FIRST DIVISION
[G.R. No. 172573. June 19, 2008.] RICARDO SUAREZ, petitioner, vs. PEOPLE OF THE PHILIPPINES and A.H. SHOPPERS' MART, INC., respondents. DECISION PUNO, C.J :
p

This Petition for Review on Certiorari assails the Decision 1 and Resolution 2 of the Court of Appeals, dated November 21, 2005 and April 10, 2006 respectively, in CA-G.R. SP No. 00284. The Court of Appeals set aside the Regional Trial Court's (RTC's) Omnibus Decision 3 dated August 30, 2004 and Order 4 dated September 13, 2004, and reinstated the Municipal Trial Court in Cities' (MTCC's) Joint Decision 5 dated April 23, 2004 in Criminal Case Nos. 14988 and 14989. The MTCC found petitioner Ricardo Suarez guilty of two (2) counts of violation of Batas Pambansa (B.P.) Blg. 22.
ScaAET

Petitioner is Ricardo Suarez, the owner of a grocery store, Suarez Commercial. Respondent A.H. Shoppers' Mart, Inc. (Shoppers' Mart) is a business establishment engaged in operating a grocery and department store.

Petitioner opened a credit line to purchase goods with Shoppers' Mart. 6 As payment for the goods, petitioner issued two postdated checks payable to the order of Shoppers' Mart: (1) Development Bank of the Philippines (DBP) Check No. 0008784 dated September 18, 1998 for the amount of PhP82,812.00; and (2) DBP Check No. 0008777 dated September 26, 1998 for the amount of PhP75,000.00. 7 Shoppers' Mart deposited the checks. However, DBP dishonored the checks for having been drawn against a closed account. 8 Shoppers' Mart sent the petitioner a demand letter dated March 22, 2002 to pay for the value of the checks, but the petitioner failed to make payment. 9 Two informations for violation of B.P. Blg. 22 were filed against the petitioner before the MTCC. 10 Both informations are similarly worded except with respect to the check number, amount involved, and date corresponding to the check's issuance. The information in Criminal Case No. 14988 reads as follows:
IHAcCS

That, on or about the 18th day of September, 1998, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, knowing fully and well that he did not have sufficient funds deposited with the bank, did, then and there feloniously make out and issue Development Bank of the Philippines Check No. 0008784 in the amount of EIGHTY TWO THOUSAND AND EIGHT HUNDRED TWELVE PESOS (P82,812.00), Philippine Currency, drawn against Development Bank of the Philippines (DBP) Tagbilaran City Branch, Tagbilaran City, and to pay Shoppers Mart, and thereafter, did, then and there willfully, unlawfully and feloniously pass on, give and deliver the same to Shoppers Mart, in payment of a certain obligation; however, upon presentment of the check to the drawee bank for encashment or payment within a period of ninety (90) days from the date appearing thereon, the same was dishonored and refused payment for the reason "ACCOUNT CLOSED" and the accused neither paid nor made arrangement with the drawee bank within five (5) banking days from receipt of notice of non-payment, to the damage and prejudice of said Shoppers Mart, in the amount to be proved during the trial of the case. Acts committed contrary to the provisions of Batas Pambansa Blg. 22. 11
ACTIHa

Criminal Case Nos. 14988 and 14989 were consolidated and jointly tried. When arraigned, petitioner pleaded not guilty to the charges against him. 12 During trial, the prosecution presented one witness, Dolores Huan Agbayani, the Collection Manager of Shoppers' Mart. 13 Petitioner filed a Demurrer to Evidence without leave of court, on the ground that no notice of dishonor had been sent

to and received by him. Demurrer. 15

14

On January 26, 2004, the MTCC denied the

On April 23, 2004, the MTCC found petitioner guilty of violating B.P. Blg. 22 in both cases. The dispositive portion of its Joint Decision states:
WHEREFORE, the Court finds accused Ricardo Suarez GUILTY beyond reasonable doubt in each of the two (2) counts of Violation of Batas Pambansa Bilang 22 as charged in the two (2) informations and hereby imposes a penalty of FINE of: 1.EIGHTY FIVE THOUSAND PESOS (P85,000.00) in Crim. Case No. 14988; 2.SEVENTY FIVE THOUSAND PESOS (P75,000.00) in Crim. Case No. 14989,
TDCAHE

with subsidiary imprisonment in case of insolvency and to pay costs in each case. Accused is likewise ordered to pay complainant the total amount of P157,812.00 representing the total face value of the two (2) dishonored checks plus legal interest of six (6%) percent per annum from the filing of these cases on July 12, 2002 until finality of this judgment and twelve (12%) percent per annum from finality of this judgment until full payment and the sum of P5,000.00 as attorney's fees and litigation expenses. SO ORDERED.
16

Petitioner appealed to the RTC, which ruled that the provision in B.P. Blg. 22 regarding criminal liability runs counter to the constitutional provision against imprisonment for nonpayment of a debt. The RTC modified the MTCC decision, viz:
ADHaTC

WHEREFORE, in view of all the foregoing, the assailed Decision is modified and another judgment is hereby entered absolving herein accused Ricardo Suarez from criminal liability under BP Blg. 22. However, the civil liability imposed upon him in the Decision is hereby affirmed. 17

On November 9, 2004, respondents assailed the RTC decision before the Court of Appeals. 18 The Court of Appeals set aside the RTC decision and reinstated

the MTCC decision, holding that the RTC decision is void for absolving the petitioner of criminal liability despite a finding that he violated B.P. Blg. 22.

19

Petitioner filed a Motion for Reconsideration before the Court of Appeals, reiterating the argument that the prosecution failed to prove that he had been sent and received a notice of dishonor, which is essential to support a conviction of B.P. Blg. 22. 20 The Court of Appeals denied the motion. 21 Petitioner insists on the same argument before this Court. The Solicitor General supports the petitioner's argument and recommends the petitioner's acquittal for violation of B.P. Blg. 22. 22 Thus, the sole issue for resolution is whether the prosecution proved the element of knowledge of insufficiency of funds to hold the petitioner liable for violation of B.P. Blg. 22.
EAIaHD

To commit a violation of B.P. Blg. 22, and proved:

23

the following elements must be present

1.the making, drawing and issuance of any check to apply for account or for value; 2.the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and 3.the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. 24

B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds under the following circumstances:
aSIAHC

Sec. 2.Evidence of knowledge of insufficient funds. The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds or credit with such bank, when presented within ninety days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. 25

The presumption arises when it is proved that the issuer had received this notice, and that within five banking days from its receipt, he failed to pay the amount of the check or to make arrangements for its payment. 26 The full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense. 27 Accordingly, procedural due process requires that a notice of dishonor be sent to and received by the petitioner to afford the opportunity to avert prosecution under B.P. Blg. 22. 28 The evidence shows that the prosecution proved that a notice of dishonor was sent to petitioner through registered mail. The prosecution presented a copy of the demand letter and properly authenticated the registry return receipt. 29However, it is not enough for the prosecution to prove that a notice of dishonor was sent to the petitioner. It is also incumbent upon the prosecution to show "that the drawer of the check received the said notice because the fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the check." 30
aACEID

A review of the records shows that the prosecution did not prove that the petitioner received the notice of dishonor. Registry return cards must be authenticated to serve as proof of receipt of letters sent through registered mail. Thus, we held:
. . . it must appear that the same was served on the addressee or a duly authorized agent of the addressee. In fact, the registry return receipt itself provides that '[a] registered article must not be delivered to anyone but the addressee, or upon the addressee's written order, in which case the authorized agent must write the addressee's name on the proper space and then affix legibly his own signature below it.' 31

The failure of the prosecution to properly authenticate and identify the signature on the registry return card as that of the petitioner is evident from the testimony of its sole witness, the Collection Manager of Shoppers' Mart:
Q:The return card evidencing actual receipt by the defendant, it is also included in Branch 2, City Court?

A:Yes, sir. Q:I show you a return receipt, is this the return receipt you are referring to?

A:Yes, sir.

32

The presentation of the registry card, with an unauthenticated signature, does not meet the required proof beyond reasonable doubt that the petitioner received such notice, especially considering that he denied receiving it. 33 As there is insufficient proof that the petitioner received notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot arise.
aHADTC

IN VIEW WHEREOF, the assailed November 21, 2005 Decision and April 10, 2006 Resolution of the Court of Appeals in CA-G.R. SP No. 00284, reinstating the April 23, 2004 Joint Decision of the MTCC in Tagbilaran City, Branch 1, in Criminal Case Nos. 14988 and 14989 convicting the petitioner of two (2) counts of violation of B.P. Blg. 22, are MODIFIED. Petitioner is ACQUITTED on reasonable doubt. However, the civil liability imposed on petitioner in the Joint Decision of the MTCC is AFFIRMED.
cCESTA

SO ORDERED.

Carpio, Corona, Azcuna and Leonardo-de Castro, J

THIRD DIVISION
[G.R. No. 139323. June 6, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLO ELLASOS y MAURICIO ALIAS "ROMMEL" and SONNY OBILLO Y GANAYO, accused. SONNY OBILLO y GANAYO, accused-appellant.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.
SYNOPSIS When Branch 39 of RTC, San Jose City, convicted accused Ellasos and Obillo of the crime of Carnapping with Homicide, this appeal was interposed by Obillo.

The victim, owner of the tricycle subject of the carnapping case, was last seen in the Caltex Station seated beside accused Obillo inside the sidecar of the tricycle which was being driven by accused Ellasos. Three hours later, the two accused were seen in the vicinity with the tricycle but without the victim. The following morning, the lifeless body of the victim with gunshot wound on the head was found in Tayabo, San Jose City, while the two accused were found sleeping at the gate of the Iglesia ni Cristo chapel in Munoz, in possession of a gun and the wheel of the victim's tricycle. The rest of the tricycle was recovered in a culvert. These circumstances led to the conclusion that the tricycle was unlawfully taken in conspiracy of the two accused from the owner who was killed on the occasion thereof. Hence, the Court affirmed the findings of Carnapping with Homicide as against Obillo, with life imprisonment as proper penalty under Section 14 of RA 6539, the law effective at the time of the commission of the crime. The conviction of Ellasos, however, was set aside in lieu of the separate trial being conducted in the RTC of Muntinlupa. SYLLABUS 1.CRIMINAL LAW; CARNAPPING; DEFINED. Republic Act No. 6539, otherwise known as "An Act Preventing and Penalizing Carnapping," defines carnapping, thus: "Carnapping" is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things." 2.ID.; ID.; ELEMENT OF INTENT TO GAIN IS PRESUMED FROM THE UNLAWFUL TAKING OF THE VEHICLE. Intent to gain, or animus lucrandi, as an element of the crime of carnapping, is an internal act and hence presumed from the unlawful taking of the vehicle. Unlawful taking, or apoderamiento, is the taking of the vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. 3.ID.; CONSPIRACY; DEFINED. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be proved by direct evidence and may be inferred from the conduct of the accused before, during and after the commission of the crime, which are indicative of a joint purpose, concerted action and concurrence of sentiments.

4.REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; REQUISITES TO BE SUFFICIENT FOR CONVICTION. On the matter of conviction of the accused based on circumstantial evidence, the following requisites need to be satisfied: (1) there must be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute "an unbroken chain which leads to one fair and reasonable conclusion which points to the defendant, to the exclusion of all others, as the guilty person, i.e. the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty." 5.CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; WHEN APPRECIATED. To establish the aggravating circumstance of evident premeditation, it must be shown that there was a period sufficient to afford full opportunity for reflection and a time adequate to allow the conscience of the actor to overcome the resolution of his will as well as outward acts showing the intent to kill. 6.ID.; ID.; ABUSE OF SUPERIOR STRENGTH; WHEN APPRECIATED. Abuse of superior strength is appreciated when the aggressors purposely use excessive force out of proportion to the means of defense available to the person attacked. As aggravating circumstance, what should be considered is not that there are 3, 4 or more assailants as against one victim but whether the aggressors took advantage of their combined strength in order to consummate the offense. With respect to nighttime as an aggravating circumstance, this circumstance must have specially been sought to consummate the crime, facilitate its success or prevent recognition of the felon. 7.ID.; ID.; TREACHERY; WHEN APPRECIATED. The circumstance of treachery was also not proven. Treachery exists when the offender commits a crime against persons, employing means or methods which directly and specially insure its execution without risk to himself arising from the defense which the offended party might make. It must be proved by clear and convincing evidence, or as conclusively as the killing itself. When the body of the victim was found, it was loosely tied by the neck to a tree. However, no one saw the killing, and there is no proof that the victim was tied to the tree prior to the killing. Neither is there proof that the act of tying was consciously and deliberately done by the accused to ensure the execution of the crime without affording the victim any opportunity

to defend himself or retaliate. The hands and feet of the victim remained free and untied. At any rate, we can only surmise as to what actually transpired during the killing of Miguel de Belen, and thus cannot appreciate treachery which cannot be based on mere presumption. 8.ID.; CARNAPPING; IMPOSABLE PENALTY. Section 14 of R.A. 6539 provides for the penalty for Carnapping, to wit: "Sec. 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of

life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping ."

This was amended by R.A. 7659, or the Death Penalty Law, which took effect on December 31, 1993, thereby changing the penalty contained in the last clause to read: "and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof." 9.ID.; PENALTIES; RECLUSION PERPETUA; DISTINGUISHED FROM LIFE IMPRISONMENT. Time and again, we have emphasized that life imprisonment is not synonymous to reclusion perpetua. Unlike life imprisonment, reclusion perpetua carries with it accessory penalties provided in the Revised Penal Code and has a definite extent and duration. Life imprisonment is invariably imposed for serious offenses penalized by special laws, while reclusion perpetua is prescribed in accordance with the Revised Penal Code. DECISION GONZAGA-REYES, J :
p

This is an appeal by Sonny Obillo from the Decision 1 dated February 4, 1999 of the Regional Trial Court of San Jose City, Branch 39, in Criminal Case No. SJC-64 (92), finding Carlo Ellasos alias Rommel Reyes and Sonny Obillo guilty beyond reasonable doubt of the crime of Carnapping with Homicide.

On May 20, 1992, accused Carlo Ellasos alias Rommel and Sonny Obillo were charged with the crime of violation of R.A. 6539 or the Anti-Carnapping Act, with Homicide in an Information which reads, to wit:
"That on or about April 2, 1992, in the City of San Jose, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring together and mutually helping one another, with intent of gain and by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously take and carry away a motor tricycle with Plate No. CV-1275 owned by and belonging to Miguel de Belen, against the will of the latter; that on the occasion thereof and for the purposes of enabling them to take and carry away the motor tricycle above mentioned, the accused, in pursuance of their conspiracy, with evident premeditation, and taking advantage of their superior strength and with intent to kill, treacherously attack, assault and shoot the aforesaid Miguel de Belen with an unlicensed firearm, thereby inflicting wounds upon the latter which caused his instantaneous death. That as a consequence of the death of said Miguel de Belen, his heirs sustained actual compensatory and moral damages. CONTRARY TO LAW, and committed at nighttime, which facilitated its commission."
2

On July 21, 1992, Sonny Obillo was arraigned and pleaded not guilty to the charges. Trial proceeded against him. Carlo Ellasos escaped from the jail before arraignment and was only arrested four (4) years thereafter when the prosecution had already rested its case. 3 Ellasos was thereafter arraigned and pleaded not guilty to the charges. While the counsel of Ellasos was still reviewing the evidence presented by the prosecution against Obillo, Ellasos was convicted of another crime of robbery by the RTC of Roxas, Isabela, Branch 23, in Criminal Case No. 23-654, and was committed to the New Bilibid Prison in Muntinlupa. 4 Accused Sonny Obillo took the witness stand, after which the defense rested its case. 5 On July 10, 1997, the lower court issued an Order separating the trial of the case against the two accused, and transferring the trial of the case against Carlo Ellasos to the RTC of Muntinlupa while maintaining that against Sonny Obillo in the RTC of San Jose City. 6

During the trial, the prosecution presented the following witnesses: (1) SPO2 Edgardo Santos and SPO1 Apolinario Agustin of the San Jose City Police Station; (2) Edgardo Galletes, the caretaker of the Iglesia ni Cristo chapel in Muoz; (3) Fernando de Belen, the brother of the victim; (4) Elena de Belen, the widow of the victim; (5) Antonio de Belen, another brother of the victim who testified as to

the damages sustained by the carnapped tricycle; and (6) Dr. Raul Agliam who conducted the autopsy on the body of the victim. The testimonies of these witnesses were summarized by the trial court as follows: 7
"SPO2 EDGARDO SANTOS testified that on April 3, 1992, P/Lt. Agustin of the Muoz Police Station called by telephone to inform the San Jose City Police Station that the [probable] suspects in the killing of a tricycle driver at Tayabo, San Jose City were in the vicinity of the Iglesia Ni Cristo chapel at Muoz, Nueva Ecija; that he together with his copolicemen went to the Iglesia Ni Cristo compound in Muoz and coordinated with Jaime Dionisio, the Head Minister thereat; that Minister Jaime Dionisio turned over to them the persons of Sonny Obillo and Carlo Ellasos together with a .38 caliber revolver paltik with two (2) live ammunitions; that they brought Sonny Obillo and Carlo Ellasos to the Muoz Police Station, then later on to the San Jose City Police Station where they endorsed said persons to the Investigator; that Lt. Agustin was the one who actually received the firearm from Minister Dionisio; that the gun is a police positive, colored black with rust, about six (6) inches barrel bearing the marking Smith & Wesson; that he positively identified the gun which was shown to him as the same gun that was turned over to them by the Minister.
caHASI

SPO1 APOLINARIO AGUSTIN testified that on April 3, 1992, while he was at the police headquarters of San Jose City, the Chief of Police of the Muoz Police Station informed the police of San Jose City that two unidentified persons who [might have something to do with] the killing of the tricycle driver on the night of April 2, 1992 at Tayabo, San Jose City were at the Iglesia Ni Cristo chapel in Muoz, Nueva Ecija; that he together with SPO3 Renato Bautista, SPO2 Edgar Santos and PO3 Edmundo Afable responded and Muoz Chief of Police Lt. Agustin and Minister Dionisio turned over to them the persons of Sonny Obillo and Carlo Ellasos; that Minister Dionisio also turned over to them a .38 caliber revolver bearing the mark Smith & Wesson which was taken from Ellasos. EDGARDO GALLETES testified that he was one of those who actually apprehended Carlo Ellasos and Sonny Obillo in the compound of the Iglesia Ni Cristo at Muoz, Nueva Ecija; that at about 3:00 o'clock in the morning of April 3, 1992, he saw Ellasos and Obillo sleeping at the gate of the church reeking with the smell of liquor; 8 that he noticed that Carlo Ellasos had a .38 revolver; that his companions Mario Cabotaje and Manolo Cabotaje roused Obillo and Ellasos, thereafter, apprehended them and brought them inside where they were interrogated; 9 that he summoned the police and informed them about the two persons; that

he asked Ellasos why he was in possession of a gun and Ellasos told him that it was for his defense; that he asked also Obillo why he was in possession of a tricycle wheel and Obillo replied that he took the wheel from Muoz; that they turned over the apprehended persons to the policemen and .38 caliber revolver with three (3) live ammunition. FERNANDO DE BELEN testified that the deceased Miguel de Belen is his elder brother; that he does not know Ellasos, but he knows Sonny Obillo; that on April 2, 1992 at about 9:00 P.M., while he was a backrider of a tricycle driven by his cousin, Edgardo Camps, he saw the tricycle of his elder brother Miguel refueling at the Caltex Station; that he approached the said tricycle and he saw inside the sidecar Sonny Obillo seated with his elder brother Miguel while Ellasos was driving the tricycle; that he talked to his brother, who told him they were bound to [sic] Malasin; that he was not able to ask why somebody else was driving his tricycle; that Obillo was seated at the outer place of the side of the sidecar and did not notice anything unusual about his motion; that his brother and the two (2) accused proceeded towards the direction of Malasin and he waited for them at the station; that at about 12:00 o'clock that same evening, the tricycle of his elder brother passed by without his elder brother and it was only Obillo and Ellasos who were in the tricycle; that he and his other elder brother Leonardo de Belen followed the tricycle driven by Ellasos and Obillo; that they followed them up to the City Plaza, where they observed the tricycle pick up a passenger, and then sped towards the direction of Metrobank, then turned right to the direction of Sto. Nio; that they stopped at Tierra Hotel where they waited and when the accused passed by their place, they confronted Ellasos and Obillo about the whereabouts of their brother Miguel; that Ellasos told them that their brother was left behind in Malasin where he was in a drinking session with his (Ellasos') father; that they proceeded to Malasin but they were not able to find Miguel; that the following morning, they reported the disappearance of their brother Miguel at the police station; that while they were at the police station, a certain policeman arrived and informed them that they were able to recover a cadaver at Tayabo and he might be their brother Miguel; that he together with the uncle of his wife and some policemen went to the area, where he saw his brother Miguel tied to a tree already dead; that the cadaver of his brother was brought to a funeral parlor. ELENA DE BELEN testified that she is the widow of Miguel de Belen, who died on April 2, 1992; that the total expenses incurred with respect to the death of her husband is P30,000.00.

ANTONIO DE BELEN testified that the tricycle cab 10 of Miguel was damaged, both wheels were disaligned, the windshield, the headlight, the flasher, and the shock absorbers were all broken, the engine block was disaligned and the cover of the carburetor was missing; that the expenses incurred for the repair of the tricycle was P5,000.00 which was covered by receipts, while the repairs amounting to P400.00 for the body repair and P800.00 for the upholstery and P300.00 for labor were without receipts. DR. RAUL AGLIAM testified that on April 3, 1992, he conducted [an] autopsy of the body of Miguel de Belen upon the request of the Chief of Police of San Jose City; that he prepared an autopsy report, one copy of which was given to the requesting party, another attached to the death certificate and another one used as file copy; that the cadaver was in the state of rigor mortis which meant that the deceased had been dead for more than five (5) hours; that there was a gunshot wound with point of entry on the left temporal region which was positive for gun powder burns around the wound; that there was abrasion on the skin and accumulation of blood clots around the neck caused by a rope; that there was a 3 x 4 cm. abrasion on the left subscapular region and a 2 x 3 cm. abrasion on the left lumber region; that the cause of death was irreversible shock due to gunshot wound which damaged the vital center of the brain; . . . ."

For his part, accused-appellant Sonny Obillo interposed the defense of denial and proffered the following testimony: 11
". . . on April 2, 1992 at about 6:05 P.M., he arrived at their house at Julia Street, Abar I, San Jose City and was invited by Rommel Reyes to a drinking session at the house of Lito del Rosario and Joey Igna also at Julia street; that Rommel Reyes bought three (3) bottles of Ginebra San Miguel and he together with Lito del Rosario, Joey Igna and Rommel Reyes consumed the three (3) bottles of Ginebra up to 8:00 P.M.; that when Joey Igna went home, Rommel Reyes invited him to Adela street where they continued drinking and consumed four (4) bottles of Red Horse beer; that he and Rommel proceeded to Tanibong and thereafter they proceeded to the city plaza where they stayed up to 10:00 P.M.; that after he invited Rommel to go home, they took a tricycle; that while in the tricycle, Rommel who was seated at the back of the driver poked a .38 caliber handgun at the driver and ordered him to get down; that the tricycle driver complied and sat beside him (Obillo) inside the sidecar; that Rommel Reyes drove the tricycle to the Caltex Station near the Catholic church for gasoline; that while the motorcycle was being refueled, the tricycle driver alighted and talked to somebody whom he

did not recognize; that the tricycle driver returned and sat beside him without asking any help from anyone in that gasoline station; that Rommel Reyes drove the tricycle towards the direction of Tanibong; that instead of going to Tanibong, they proceeded to Tayabo; that when they reached the vicinity of Tayabo, Rommel Reyes told him to wait because Rommel Reyes and the tricycle driver would go somewhere; that while waiting for them to return, he fell asleep inside the tricycle because he was drunk; that when he woke up, they were already at the Iglesia Ni Cristo in Muoz, Nueva Ecija; that the Security Guards of the Iglesia Ni Cristo woke them up with their guns pointed at them; that he and Rommel Reyes were the only ones there and the tricycle driver was no longer with them; that they were brought to the Minister inside the compound and when they were alone he asked Rommel the whereabouts of the tricycle driver; that Rommel told him that he killed the tricycle driver; that he was surprised about the disclosure by that Rommel Reyes; that the Minister brought with him policemen from Muoz Police Station and then they were transported to the Muoz Municipal jail; that they were manhandled by the policemen; that they were brought to the San Jose City jail where they were again manhandled; that they were investigated, however, they were not informed of their constitutional rights and were not given a lawyer to assist them; that Rommel Reyes was tortured by the police officers, thereafter he confessed responsibility in the killing of the tricycle driver; that Rommel Reyes is the true name of Carlo Ellasos the latter being an alias used by the accused while inside the jail; that he met Rommel Reyes at Julia street through a gay named Odessa Ellasos and was acquainted with him for only a month; that it was only during that incident that they two of them were together; that he denied any participation in the killing of the tricycle driver."

After trial, the court a quo rendered judgment dated February 4, 1999, the dispositive portion of which reads:
cIHSTC

"WHEREFORE, in view of the foregoing, the court finds accused Sonny Obillo and Carlo Ellasos alias Rommel Reyes 12 , GUILTY beyond reasonable doubt of the crime of Carnapping with Homicide and hereby sentences both accused to suffer the penalty of Reclusion Perpetua and to pay to the heirs of Miguel de Belen the following: 1.P50,000.00 compensatory damages for the death of Miguel de Belen; 2.P30,000.00 as indemnification for funeral expenses;

3.P6,500.00 for damages incurred on the tricycle; and 4.P50,000.00 as exemplary damages. Costs against the accused. SO ORDERED."
13

Only the accused Sonny Obillo filed the instant appeal which raises the following errors:
I. THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE CRIME OF CARNAPPING WITH HOMICIDE WAS COMMITTED. II. THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT ACCUSED-APPELLANT SONNY OBILLO CONSPIRED WITH CARLO ELLASOS ALIAS ROMMEL REYES. III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT SONNY OBILLO DESPITE INSUFFICIENCY OF EVIDENCE AGAINST HIM.

At the outset, it must be pointed out that the trial judge gravely erred in rendering a judgment of conviction against both accused Sonny Obillo and Carlo Ellasos, despite the fact that he had ordered a separate trial of the case against them, and transferred the trial of accused Ellasos to the RTC of Muntinlupa. In his Order 14 dated July 10, 1997, the trial judge stated:
"As Carlo Ellasos, a co-accused in this case is presently detained at the New Bilibid Prison, Muntinlupa City, the Court is constrained to transfer the trial of accused Carlo Ellasos at the RTC, Muntinlupa and shall decide the case of accused Sonny Obillo separately from said accused. The records of these cases to be transmitted forthwith after the decision is rendered in these cases relative to accused Sonny Obillo. Considering that the prosecution needs a period of time to study whether or not to present rebuttal evidence in these cases, he is given a period of fifteen days within which to inform the Court regarding the matter and if the prosecution fails to comply within the fifteen-day

period granted them, these cases shall be deemed submitted for decision as against accused Sonny Obillo."

Hence, since the trial of Ellasos did not take place the trial court should have rendered a decision only against Sonny Obillo. Upon a review of the records, we affirm the judgment against Obillo. Upon the first assignment of error, accused-appellant contends that the essential element of intent to gain was not proven by the prosecution; that had the purpose of the accused been to appropriate the tricycle, they could have taken the said vehicle to a place where it could not be easily found; that the taking of the wheel of the tricycle can, under the circumstances, be conclusively presumed to be a mere afterthought, and if indeed a crime has been committed it can only be theft of the wheel of the tricycle. The contentions are unmeritorious. Republic Act No. 6539, otherwise known as "An Act Preventing and Penalizing Carnapping", defines carnapping, thus:
"Carnapping" is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things." [Ibid., sec. 2]

Intent to gain, or animus lucrandi, as an element of the crime of carnapping, is an internal act and hence presumed from the unlawful taking of the vehicle. 15 Unlawful taking, or apoderamiento, is the taking of the vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. 16 In the case before us, when the victim, Miguel de Belen, who is the registered owner of the tricycle subject of this carnapping case, 17 was last seen by his brother Fernando at the Caltex station at 9:00 p.m. on April 2, 1992, he (Miguel) was seated beside the accused Sonny Obillo inside the sidecar of his tricycle which was being driven by the other accused Carlo Ellasos. Three (3) hours later, Fernando again saw the two accused with the tricycle, but this time without his brother. When Fernando finally asked the accused about the whereabouts of his brother, Ellasos answered that Miguel was in a drinking session with his (Ellasos')

father in Malasin. The following morning, the lifeless body of Miguel de Belen, with a gunshot wound on the head, was found in Tayabo. In the same morning, the two accused were found sleeping at the gate of the Iglesia ni Cristo chapel in Muoz, and in possession of a gun and the wheel of Miguel's tricycle. The rest of the tricycle was later recovered in a culvert. The chain of proven circumstances leads to the logical conclusion that the tricycle was unlawfully taken by the two accused from its owner, Miguel de Belen, and the latter was killed on the occasion thereof. Miguel was last seen with the two accused; three hours later, the two were again spotted riding the tricycle without Miguel. The following morning, the two accused were found in possession of a wheel of the tricycle. Such possession, which remained without any satisfactory explanation, raises the presumption that the two accused authored the carnapping. 18 This presumption remains unrebutted. In fact, the possession of the wheel of the tricycle subject of this carnapping case is not denied by the accused-appellant who, in his Brief, even argued thus: "The fact that part of the tricycle was found in possession of Sonny Obillo would not alter our theory [that the element of intent to gain is wanting] because considering all the circumstances, it could be conclusively presumed that the taking of the wheel was merely an afterthought. . . . If indeed a crime has been committed, it can only be theft of the wheel of the tricycle." 19 That only the wheel was found in possession of the accused and was intended to be appropriated by the latter is of no moment. The unlawful taking of the tricycle from the owner was already completed. Besides, the accused may be held liable for the unlawful taking of the whole vehicle even if only a part thereof is ultimately taken and/or appropriated while the rest of it is abandoned. In the case of People vs. Carpio, 20 this Court convicted the accused Carpio of theft of a car which was found abandoned one day after it was stolen but without three (3) of its tires, holding thus:
". . . The act of asportation in this case was undoubtedly committed with intent on the part of the thief to profit by the act, and since he effectively deprived the true owner of the possession of the entire automobile, the offense of larceny comprised the whole car. The fact that the accused stripped the car of its tires and abandoned the machine in a distant part of the city did not make the appellant any less liable for the larceny of that automobile. The deprivation of the owner and the trespass upon his right of possession were complete as to the entire car; and the fact that the thieves thought it wise promptly to abandon the machine in no wise limits their criminal responsibility to the particular parts of the car that were appropriated and subsequently used by the appellant upon his own car." 21

Anent the second and third assignments of error, the accused-appellant argues that there was no sufficient circumstantial evidence to prove that Sonny Obillo conspired with Carlo Ellasos who admitted responsibility for the killing of the victim. He points out that the evidences of the prosecution merely show that Obillo was seen with Ellasos on the night of April 2, 1992 and in the morning of April 3, 1992; and that Obillo made no attempt to refute the false statements of Ellasos regarding the whereabouts of the victim Miguel de Belen. He also stresses that there is no evidence on record to prove that he (Obillo) performed an overt act in furtherance of the alleged conspiracy. The contentions are devoid of merit. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 22 Conspiracy need not be proved by direct evidence and may be inferred from the conduct of the accused before, during and after the commission of the crime, 23 which are indicative of a joint purpose, concerted action and concurrence of sentiments. 24 The following circumstances enumerated in Appellee's Brief provide sufficient basis from which it can be inferred that the two accused, Carlo Ellasos and Sonny Obillo, acted in concert in the series of events that took place on April 2 to April 3, 1992. 1.In the evening of April 2, 1992, accused flogged down the tricycle of Miguel de Belen. Accuses Ellasos rode behind him while accused-appellant stayed inside the sidecar. 2.Around 9 o'clock, Fernando de Belen saw Miguel's tricycle at the Caltex Station. Accused Ellasos was at the driver's seat while Miguel was seated inside near the driver and accusedappellant at the outer side of the sidecar. 3.They left together to the direction of Malasin, but they went to Tayabo, where Miguel's body was later found. 4.At midnight, Fernando and Leonardo de Belen saw accused using Miguel's tricycle, but Miguel was not with them. 5.Upon inquiry by Leonardo, accused told them that Miguel was left behind at Malasin having a drinking spree with Ellasos' father. Accused-appellant who was awake at that time

joined in the conversation but did not correct the wrong information given by accused Ellasos. 6.Fernando and Leonardo de Belen went to Malasin but did not find Miguel. 7.At 3:00 in the early morning, accused who were both drunk stopped in front of the Iglesia ni Cristo Church in Muoz where they fell asleep.

8.Around 6:00 in the morning, the INC security guards roused accused from their sleep as they were blocking the gate. 9.The INC guards found that accused Ellasos was carrying a gun and accused-appellant had a wheel of a tricycle. 10.Accused were brought inside the compound where they were interrogated. They admitted to be residents of 1st Abar, San Jose City where the de Belen's likewise reside. 11.The San Jose City Police found a dead male person tied hanging to a tree with a gunshot wound in the head. 12.Fernando and his wife's uncle reported the disappearance of Miguel. 13.The dead person at Tayabo was identified by Fernando to be his missing brother Miguel. 14.Miguel's badly damaged tricycle was found in a culvert.
25

The testimony of the accused-appellant that he fell asleep while waiting for Ellasos and Miguel inside the tricycle and that when he woke up he was already in front of the guards at the Iglesia ni Cristo chapel deserves scant attention in light of the positive testimonies of two witnesses, namely: (1) Fernando de Belen testified that he saw Ellasos and Obillo riding the tricycle of his brother Miguel at about midnight of April 2, 1992, and even asked them regarding the whereabouts of his brother, to which Ellasos answered that Miguel was still in Malasin having a drinking session with his (Ellasos') father; 26 and (2) Edgardo Galletes testified that at about 3:00 in the morning of April 3, 1992, he saw

Ellasos and Obillo arrive by foot at the Iglesia ni Cristo compound; when he asked the two where they came from, they answered "Muoz". 27 Between the self-serving testimony of the accused-appellant and the positive testimonies of the two witnesses negating the former, we have no cogent reason to disturb the trial court's finding giving more credence to the latter. On the matter of conviction of the accused based on circumstantial evidence, the following requisites need to be satisfied: (1) there must be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt.28 Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute "an unbroken chain which leads to one fair and reasonable conclusion which points to the defendant, to the exclusion of all others, as the guilty person, i.e. the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty." 29 A careful perusal of the transcript of the testimonies of witnesses for both the prosecution and the defense shows adequate evidentiary bases to establish the aforementioned circumstances. The unbroken chain of these proven circumstances inevitably point to only one conclusion that the accused Obillo and Ellasos are guilty of unlawfully taking the tricycle from its owner, Miguel de Belen, and of killing the latter. This Court has held that "[i]n the absence of an explanation of how one has come into the possession of stolen effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression and death of the said person and of the robbery committed on him." 30 The court a quo, thus, committed no error in convicting the accused beyond reasonable doubt on the basis of circumstantial evidence. The aggravating circumstances of evident premeditation, taking advantage of superior strength and nighttime cannot be appreciated as no evidence was presented to prove the same. To establish the aggravating circumstance of evident premeditation, it must be shown that there was a period sufficient to afford full opportunity for reflection and a time adequate to allow the conscience of the actor to overcome the resolution of his will as well as outward acts showing the intent to kill. 31 Abuse of superior strength is appreciated when the aggressors purposely use excessive force out of proportion to the means of defense available to the person attacked. 32 As aggravating circumstance, what should be considered is not that there are 3, 4 or more assailants as against one victim but whether the aggressors took advantage of their combined strength in

order to consummate the offense. 33 With respect to nighttime as an aggravating circumstance, this circumstance must have specially been sought to consummate the crime, facilitate its success or prevent recognition of the felon. 34 The circumstance of treachery was also not proven. Treachery exists when the offender commits a crime against persons, employing means or methods which directly and specially insure its execution without risk to himself arising from the defense which the offended party might make. 35 It must be proved by clear and convincing evidence, or as conclusively as the killing itself. 36 When the body of the victim was found, it was loosely tied by the neck to a tree. 37 However, no one saw the killing, and there is no proof that the victim was tied to the tree prior to the killing. Neither is there proof that the act of tying was consciously and deliberately done by the accused to ensure the execution of the crime without affording the victim any opportunity to defend himself or retaliate. The hands and feet of the victim remained free and untied. At any rate, we can only surmise as to what actually transpired during the killing of Miguel de Belen, and thus cannot appreciate treachery which cannot be based on mere presumption. 38 In connection with the penalty imposed, the Solicitor-General invites our attention to the erroneous imposition by the trial court of the penalty of Reclusion Perpetua upon the accused. Section 14 of R.A. 6539 provides for the penalty for Carnapping, to wit:
"SECTION 14.Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things;and the penalty of life imprisonment to death shall

be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping." [Italics supplied]

This was amended by R.A. 7659, or the Death Penalty Law, which took effect on December 31, 1993, thereby changing the penalty contained in the last clause to read: "and the penalty of reclusion perpetua to death shall be imposed when the

owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof". [Section 20, Ibid.] The crime was committed before the effectivity of R.A. 7659. Therefore, we have to apply the original provision prescribing the penalty of "life imprisonment to death" where the "owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping". As there is no aggravating circumstance present in this case, the maximum penalty imposable for the crime is life imprisonment. 39 Hence, the trial court erred in imposing the penalty ofreclusion perpetua. Time and again, we have emphasized that life imprisonment is not synonymous to reclusion perpetua. Unlike life imprisonment, reclusion perpetua carries with it accessory penalties provided in the Revised Penal Code and has a definite extent and duration. 40 Life imprisonment is invariably imposed for serious offenses penalized by special laws, while reclusion perpetua is prescribed in accordance with the Revised Penal Code. 41 With regard to the indemnification for funeral expenses in the amount of P30,000.00, records show that the same is only partially supported by evidence. The receipt presented by the prosecution reflects only the amount of P15,000.00. 42Hence, we should limit the award to the latter amount in accordance with the well-settled rule that only expenses supported by documents such as receipts and which appear to be expended in connection with the death of the victim are allowed to be recovered. 43 Bare allegations of witnesses as to the expenses incurred are not sufficient. As for the indemnification for the damages sustained by the recovered tricycle, this has no factual basis on record and therefore should be deleted. 44 The award of exemplary damages should likewise be deleted as no aggravating circumstance attended the commission of the crime. 45 WHEREFORE, the questioned Decision is hereby AFFIRMED with the MODIFICATIONS that only Sonny Obillo is convicted of Carnapping with Homicide and is sentenced to suffer the penalty of Life Imprisonment and to indemnify the heirs of Miguel de Belen. The indemnification for funeral expense is reduced to P15,000.00, while the awards of P6,500.00 for the damages on the carnapped tricycle and P50,000.00 as exemplary damages are deleted. The judgment convicting Carlo Ellasos in the same case is set aside. Upon finality of this decision, let the records of this case be forwarded to the Executive Judge,

Regional Trial Court of Muntinlupa so that the criminal prosecution of Ellasos can proceed with dispatch. SO ORDERED.

FIRST DIVISION
[G.R. No. 130594. July 5, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AKMAD SIRAD, ORLIE SULTAN y MASDAL and SALIK AMINO y LUGEOMAN, accused, ORLIE SULTAN y MASDAL and SALIK AMINO y LUGEOMAN, accused-appellants.

The Solicitor General for plaintiff-appellee. Garcia Jacobo & Besinga Law Office for accused-appellants.
SYNOPSIS Accused-appellants were found guilty of carnapping with homicide. Record showed that on February 4, 1992, victim George Lozano, who delivers bread around General Santos City using a red Kawasaki motorcycle owned by his employer, was found dead at a ranch and the motorcycle was missing. The three accused were apprehended and the prosecution witnesses identified them as the persons they saw riding the motorcycle of George on the fateful day. The circumstances established by the prosecution in the case at bar had successfully overcome the constitutional presumption of innocence and established the guilt of the accused-appellants beyond reasonable doubt. Accused-appellants were sufficiently identified at a police line-up. Applying the totality of circumstances test, there was a violation of the constitutional rights of appellants. The witnesses positively identified the three appellants inside the jail who were in the company of other inmates the police officers did not in any way influence the witnesses; and the identification took place only a few days after the incident. There was no crime as carnapping with homicide. The proper denomination of the crime is carnapping as defined and penalized under RA

6539. The proper penalty to be imposed on appellants is reclusion perpetua because at the time of the commission of the crime, the death penalty was suspended. SYLLABUS 1.REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT AFFECTED BY DISCREPANCIES BETWEEN AFFIDAVIT AND TESTIMONY. Discrepancies between the statements of an affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete. Affidavits are generally subordinate in importance to open court declarations. 2.ID.; ID.; ID.; NOT AFFECTED BY MINOR INCONSISTENCIES. There may be inconsistencies in the statements of the witnesses but the inconsistencies are minor and not on the identification of the accused-appellants. There is no evidence of ill motive on the part of Rita to testify against accused-appellants. The only conclusion is that she was telling the facts as she witnessed or saw them. 3.ID.; ID.; ID.; UPHELD IN THE ABSENCE OF ILL-MOTIVE. The second witness, being a relative of the victim, does not necessarily make his testimony tainted with bad faith. We have held that "where the defense fails to prove that witnesses are moved by improper motives, the presumption is that they are not so moved and their testimonies are therefore entitled to full weight and credit. 4.ID.; ID.; ID.; FINDINGS OF TRIAL COURT, RESPECTED. Findings of the trial court, especially in assessment of the credibility of the witnesses, are not to be disturbed on appeal, absent facts and circumstances that the trial court might have overlooked. 5.ID.; ID.; ALIBI; GENERALLY CONSIDERED WITH SUSPICION; WHEN BASIS FOR ACQUITTAL. Alibis are generally considered with suspicion and are always received with caution, not only because they are inherently weak and unreliable, but also because they can be easily fabricated. "Ergo, for alibi to serve as a basis for acquittal, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the crime and (b) that it would be physically impossible for him to have been at the scene of the crime."

6.ID.; ID.; WEIGHT AND SUFFICIENCY; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT. Circumstantial evidence would suffice when, "(1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt." The peculiarity of circumstantial evidence is that the guilt of the accused cannot be deducted from scrutinizing just one particular piece of evidence. It is more like weaving a tapestry of events that will culminate in a clear picture that will reveal a convincing scenario pointing towards the accused as the author of the crime. 7.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF ACCUSED DURING CUSTODIAL INVESTIGATION; NOT VIOLATED. Accused-appellant alleged that their investigation shifted from investigatory to accusatory for they were considered as primary suspects. We disagree, when they were apprehended, they were riding the motorcycle of the deceased George Lozano, and to make things worse, they fled when they were asked by the police to stop. Possession of a stolen property creates the presumption that the possessor stole it. Adding the fact that they fled when asked by the police to stop, it is just normal and more likely that they would be considered primary suspects. 8.ID.; ID.; IDENTIFICATION OF ACCUSED AT POLICE LINE-UP IN THE ABSENCE OF COUNSEL; WHEN ADMISSIBLE IN EVIDENCE. Accused-appellants hold the view that their identification in the "police line-up" was a violation of their constitutional rights and thereby inadmissible in evidence. We disagree. In People vs. Timon, we held that "[I]n resolving the admissibility of and relying on out of court identification of suspects, courts have adopted the totality of circumstances test where they consider following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure." Also, in People vs. Lapuraand People vs. Pacistol, we ruled that "[T]he uncounselled identification made at the police station, however, did not foreclose the admissibility of the independent in-court identification." 9.CRIMINAL LAW; CARNAPPING; PROPER PENALTY IN CASE THE DRIVER OF THE CARNAPPED VEHICLE IS KILLED IN THE COURSE OF CARNAPPING. During the commission of the crime, which was on February 4, 1992, there was no crime denominated as carnapping with homicide. The proper denomination for the crime is carnapping as defined and penalized under of Republic Act No.

6539, Sections 2 and 14. Under Republic Act No. 6539, Section 14, the penalty for carnapping in case the owner, driver or occupant of the carnapped motor vehicle is killed in the course of the commission of the carnapping shall be reclusion perpetua to death. Considering that at the time of the commission of the crime the death penalty was suspended, accused are hereby sentenced to reclusion perpetua.
CEDHT

10.ID.; ID.; DAMAGES; PROPER CIVIL INDEMNITY AND MORAL DAMAGES IN CASE AT BAR. In conformity with prevailing jurisprudence, the trial court correctly awarded the amount of P50,000.00 as civil indemnity for the death of the victim. Anent moral damages, the victim's widow testified that the death of her husband left her with six children to support, thus, she does not know what to do. Moral damages which include physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical injuries and the victim's death as in this case. Hence, the award of P50,000.00 as moral damages. 11.ID.; ID.; ID.; LOSS OF EARNING CAPACITY; AWARDED; HOW COMPUTED. The accused-appellants are also jointly and severally liable for the loss of the earning capacity of the deceased and such indemnity should be paid to the heirs of the latter. The deceased's loss of earning capacity is computed as follows: Net earning capacity = life expectancy x gross annual income living expenses. DECISION PARDO, J :
p

What is before us on appeal is the decision of the Regional Trial Court (RTC) of General Santos City, Branch 22, finding accused-appellants guilty of carnapping with homicide and sentencing each of them to the penalty of reclusion perpetuaand to jointly and severally indemnify the heirs of the victim, P50,000.00 for death, P100,000.00 as moral damages and 100,000.00 as compensatory damages. 1 On June 9, 1992, the 3rd Assistant City Prosecutor, General Santos City, filed with the Regional Trial Court, Branch 22, General Santos City an information charging accused Akmad Sirad, Orlie Sultan and Salik Amino with carnapping with homicide, as follows:

"That on or about 12:00 o'clock noon of February 4, 1992, at Sitio Cabuay, Barangay Sinawal, General Santos City, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and helping one another willfully, unlawfully and feloniously, and by means of violence and with intent to gain and without the consent of the owner thereof, did then and there take, steal and drive away a Kawasaki motorcycle with Engine No. 459530 and Serial No. KB-832480 belonging to Aniceto Dela and valued at P48,000.00, Philippine Currency, to the damage and prejudice of said owner in the said sum; that on the occasion of said carnapping and for the purpose of enabling them to take, steal and drive away the motorcycle mentioned above, herein accused, in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, and with evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault and use personal violence upon one George Lozano, who was then driving the above-mentioned motorcycle when it was carnapped, inflicting upon said George Lozano fatal wounds and injuries which cause his instant death. "Contrary to law."
2

Upon arraignment on June 26, 1992, 3 accused entered a plea of not guilty, and trial ensued. After due trial, on June 27, 1997 the trial court rendered a decision, finding all the accused-appellants guilty of carnapping with homicide, the dispositive portion of which reads:

"WHEREFORE, based on the evidence adduced, the court finds the accused Akmad Sirad, Orlie Sultan and Salik Amino guilty beyond reasonable doubt of the crime of carnapping with homicide. In the absence of either mitigating or aggravating circumstance, they are each sentenced to RECLUSION PERPETUA and to jointly and severally indemnify the heirs of the victim represented by Nenita Lozano P50,000.00 for the death of the victim George Lozano, to pay moral damages in the amount of P 100,000.00 compensatory damages of P100,000.00, plus costs. "SO ORDERED. "Given this 27th day of June, 1997 at the city of General Santos, Philippines.

"(s/t) ABEDNEGO O. ADRE "Judge"

4

On July 22, 1997, accused Orlie Sultan and Salik Amino filed their notice of appeal. 5 Accused Akmad Sirad did not appeal. The facts of the case are as follows: George Lozano, the victim in this case, made a living by delivering bread around General Santos City using a red Kawasaki motorcycle owned by his employer Aniceto Dela. In the morning of February 4, 1992, he left his house early at around 5:00 a.m. to get bread from the bakery of Aniceto Dela. He returned to his house two hours later and after taking his breakfast, left again at past 7:00 A.M. proceeding towards Barangay Sinawal. At about 9:00 a.m. Martillano Lozano was picking cotton at a cotton farm in Sitio Cabuay (Cabuway), Barangay Sinawal, General Santos City when he saw his cousin George Lozano pass by riding his red Kawasaki motorcycle with the bread box attached at its side. At around 12:00 noon he again saw the red motorcycle pass by, but this time it was not George who was riding the motorcycle but three men and the bread box was no longer attached to the motorcycle. Rita Pino, a co-worker of Martillano Lozano at the cotton farm also saw the red Kawasaki motorcycle pass by the cotton farm at around noon of February 4, 1992, driven by accused-appellant Akmad Sirad with the other accused-appellants Orlie Sultan and Salik Amino riding at the back. At around 1:00 in the afternoon, Martillano Lozano reported to Nenita Lozano, wife of the victim George Lozano, that he saw the motorcycle of George Lozano ridden by another person and that the bread box was no longer attached to the motorcycle. Around 5:00 in the afternoon Nenita Lozano was worried because George Lozano who usually arrived at that time had not arrived. She then went to the wake of Bernardino Lozano where she could ask the people there about her husband's whereabouts. A search party was organized and they looked for George Lozano by tracing the usual routes he would take in delivering bread. Martillano Lozano went to the house of Sinawal Barangay Captain Boy Olarte and they looked for George Lozano. Later, the group of Nenita and Captain Olarte joined in looking for George; Lozano. At around 10:00 in the evening the group of Martillano Lozano found the body of George Lozano at the ranch of Bernardino Lozano, approximately three meters away from the road going to Barangay Sinawal. The body of George Lozano was lying on its side with lacerations on the

stomach and the intestines spilled out. His face and body bore contusions and the motorcycle he was driving was missing. The PNP Theft and Robbery section investigated the death and disappearance of the motorcycle of George Lozano. Police Officer Leozaldy Domantay a member of the theft and robbery team contacted one of his informants to look for leads as to the whereabouts of the motorcycle. On February 7,1992, an informant provided information that a motorcycle was hidden in Purok Islam, General Santos City and that it would soon be transferred to Cotabato. An operation was organized and Police Officer Domantay and other police operatives posted themselves along the roadside in Barangay Klinan, at around 9:00 in the morning of February 8, 1992. At around 1:30 in the afternoon, a motorcycle with two men on board approached the police roadblock. The motorcycle sped up when its driver Akmad Sirad recognized police officer Domantay. The police officers gave chase on board their motorcycles and were able to overtake and apprehend Akmad Sirad and his companion Orlie Sultan. When Akmad Sirad was asked to explain why they have the motorcycle of the deceased George Lozano, accused told Domantay that he was instructed by Salik Amino to deliver the vehicle to Sultan Kudarat. The police then took the accused Akmad Sirad and Orlie Sultan into custody. Soon Salik Amino was also arrested. They were all brought to the police station with the motorcycle. Prosecution witnesses Rita Pino and Martillano Lozano identified the accused as the persons they saw riding the motorcycle of George Lozano on February 4, 1992 while it was passing by the cotton farm. In this appeal, accused-appellants imputes to the trial court error in holding that circumstantial evidence sufficed to sustain a judgment of conviction against the appellants, and that the confessions of the accused-appellants were taken in violation of their rights during custodial investigation. The witness for the prosecution Rita Pino testified that she saw the motorcycle of George Lozano ridden by three men when it passed by the cotton farm in barangay Cabuway, General Santos City. 6 She was able to identify the accused. She was unwavering in her declaration. According to the accused-appellants, there were inconsistencies between the signed statement of Rita Pino that "she was invited to go to the police station to identify the suspects" 7 and her statements in open court that "she came to the police station out of her own volition" 8 which placed a doubt on her credibility. This is not the first time that the Court will hold that discrepancies between the statements of an affiant in his

affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete. Affidavits are generally subordinate in importance to open court declarations. 9 The other witness Martillano Lozano, also testified that on February 4, 1992, while he was at the cotton farm, he saw the motorcycle of George Lozano at around 9:00 in the morning driven by George with the bread box attached to the motorcycle. However, at around 12:00 noon, he again saw the motorcycle but this time it was ridden by three men and the bread box was gone. Again, the testimony of Martillano is direct and definite as to who he saw riding the motorcycle of George Lozano at 12:00 noon of February 4, 1992. There may be inconsistencies in the statements of the witnesses but the inconsistencies are minor and not on the identification of the accused-appellants. Appellants argue that it would be impossible for the witnesses Rita and Martillano to see who was riding the motorcycle at that time because they were at a far distance from the road. A perusal of the transcript of stenographic notes would reveal that Rita Pino was ten meters away from the road. Considering that the road was not a paved road, the motorcycle although moving at a considerably fast speed would have to slow down because of the bumps and the ruggedness of the road. It is not unlikely therefore that Rita could see the faces and the clothing of the ones riding the motorcycle. In her testimony she even described the garments worn by accused-appellants, and she was definite in her statements. There is no evidence of ill motive on the part of Rita to testify against accused-appellants. The only conclusion is that she was telling the facts as she witnessed or saw them. As to the witness Martillano Lozano, he was also unwavering in his statement before the court during direct and cross-examinations. He categorically declared that he saw the accused-appellants riding the motorcycle of George Lozano at noon of February 4, 1992. His being a relative of the victim does not necessarily make his testimony tainted with bad faith. We have held that "where the defense fails to prove that witnesses are moved by improper motives, the presumption is that they are not so moved and their testimonies are therefore entitled to full weight and credit." 10 We thus advert to the all too-familiar doctrine that findings of the trial court, especially in assessment of the credibility of the witnesses, are not to be disturbed on appeal, absent facts and circumstances that the trial court might have overlooked.

Accused-appellants argued that the trial court failed to consider the evidence they presented, based on the general view that alibi and denial are the weakest forms of defense. Accused-appellants contend that the trial court altogether brushed aside their documentary and testimonial evidence without assessing their probative value. Admittedly, accused-appellants' defense is based on alibi and denial. On the part of Orlie Sultan, his alibi is that on the day and time of the crime, he was at work at the irrigation canal of Stanfilco under the supervision of Fernando Aparente. He signed under a different name, Rolando Dizon, but his foreman knew that his real name was Orlie Sultan. Fernando Aparente the foreman testified that Rolando Dizon "aka" Orlie Sultan was present as he was no. 9 in the accomplishment report or attendance which he checked at the end of the day, which was at 3:00 in the afternoon. But as to the whereabouts of Orlie Sultan from 6:30 a.m. and prior to 3:30 p.m., he could not account for it. The distance between Barangay Sinawal and the Stanfilco irrigation canal is just 5 kilometers. So it is highly probable that Orlie would have been with Akmad and Salik at the time of the crime and he was able to get back to work before 3:30 p.m.

Alibis are generally considered with suspicion and are always received with

caution, not only because they are inherently weak and unreliable, but also because they can be easily fabricated. "Ergo, for alibi to serve as a basis for acquittal, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the crime and (b) that it would be physically impossible for him to have been at the scene of the crime."11 Salik Amino's alibi is that he was at his house on February 4, 1992, but he was unable to present witnesses to corroborate his testimony. This is due to the lapse of time since his arrest and the trial and presentation of evidence on his part, at which time, all his possible corroborating witnesses had transferred residence.

We, however, can not sustain credence to this allegation. The issue is what is the quantum of circumstantial evidence that will be sufficient to convict the accused-appellants. This Court had on many occasions ruled that circumstantial evidence would suffice when, " (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven;

and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt." 12 The peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is more like weaving a tapestry of events that will culminate in a clear picture that will reveal a convincing scenario pointing towards the accused as the author of the crime. In the case at bar, the circumstances are as follows: 1.Martillano Lozano and Rita Pino saw the familiar red motorcycle of George Lozano passed by the cotton farm at around 9:00 a.m. on February 4, 1992; 2.At around 12:00 noon, Martillano and Rita Pino saw the motorcycle of George Lozano without the bread box pass by with the three accused riding on it; 3.At about 10:00 p.m. the dead body of George Lozano was found at the ranch of Bernardino Lozano about three (3) meters away from the cotton farm where Rita and Martillano was gathering left over cotton; 4.The three accused riding the motorcycle were driving away from the direction where the body of George Lozano was found; 5.Orlie Sultan and Akmad Sirad were riding the motorcycle of the victim, when they were apprehended by police officers on February 8, 1992; 6.Akmad Sirad explained to the police officers that he was in possession of the motorcycle because he was instructed by Salik Amino to deliver it to Sultan Kudarat; and 7.Rita Pino and Martillano Lozano identified accused-appellants and their co-accused Akmad Sirad. The above circumstances established by the prosecution successfully overcome the constitutional presumption of innocence and established the guilt of the accused-appellants beyond reasonable doubt.

In a last ditch effort to exculpate themselves from the crime charged, accusedappellants raise the issue of the illegality of their identification by the prosecution's witnesses at a police line-up. According to accused-appellants, the identification was in violation of their constitutional right to counsel because there was no counsel present at the time. Further, they alleged that their investigation shifted from investigatory to accusatory for they were considered as primary suspects. We disagree with accused-appellants. When they were apprehended, they were riding the motorcycle of the deceased George Lozano, and to make things worse, they fled when they were asked by the police to stop. Possession of a stolen property creates the presumption that the possessor stole it. Adding the fact that they fled when asked by the police to stop, it is just normal and more likely that they would be considered primary suspects. Accused-appellants hold the view that their identification in the "police line-up" was a violation of their constitutional rights and thereby inadmissible in evidence. We disagree. In People vs. Timon, 13 we held that "[I]n resolving the admissibility of and relying on out of court identification of suspects, courts have adopted the totality of circumstances test where they consider following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure." Applying this totality of circumstances test to the case at bar, we rule that there is no violation of the constitutional rights of accused-appellants. The witnesses positively identified the three accused inside the jail. The three accused were in the company of other inmates. Thus, they were in a group. The police officers did not in any way influence the witnesses. All they did was to ask the witnesses to identify the three accused they saw riding the motorcycle. The identification took place on February 10, 1992, only a few days after the incident. Furthermore, appellant's allegation of suggestiveness in the identification is unsubstantiated. The identification of accused-appellants was effected through a zealous investigation of the police. The accused-appellants' allegation of irregularity, maltreatment and torture has not been proven, ergo, the investigators are presumed to have performed their duties regularly and in good faith.

Also, in People vs. Lapura 14 and People vs. Pacistol, 15 we ruled that "[T]he uncounselled identification made at the police station, however, did not foreclose the admissibility of the independent in-court identification." It is, however, necessary for the Court to correct the error of the trial court in convicting the accused of the crime of carnapping with homicide. During the commission of the crime, which was on February 4, 1992, there was no crime denominated as carnapping with homicide. The proper denomination for the crime is carnapping as defined and penalized under of Republic Act No. 6539, Sections 2 and 14. Under Republic Act No. 6539, Section 14, the penalty for carnapping in case the owner, driver or occupant of the carnapped motor vehicle is killed in the course of the commission of the carnapping shall be reclusion perpetua to death. Considering that at the time of the commission of the crime the death penalty was suspended, accused are hereby sentenced to reclusion perpetua. In conformity with prevailing jurisprudence, the trial court correctly awarded the amount of P50,000.00 as civil indemnity for the death of the victim. Anent moral damages, the victim's widow testified that the death of her husband left her with six children to support, thus, she does not know what to do. Moral damages which include physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical injuries and the victim's death as in this case. 16 The trial court failed to consider the fact that under Article 2206 of the Civil Code, in addition to civil indemnity of P50,000.00 for the death of the victim, the accused-appellants are also jointly and severally liable for the loss of the earning capacity of the deceased and such indemnity should be paid to the heirs of the latter. The widow Nenita Lozano testified that her husband was employed as a deliveryman for bread and was earning P300.00 a day before his death and that they had six children and the deceased was 42 years old. The deceased's loss of earning capacity is computed as follows:
Net earning =life expectancyxgrossless living Capacityannualexpenses Income(505 of GAI) X =2( 80 - 42 (age at death)x P108,000.00 P54,000.00

3 X =2 (38)x P54,000.00 3 X =25.33 x P54,000.00 X =P1,367,999.99

IN VIEW WHEREOF, we AFFIRM with MODIFICATION the decision of the Regional Trial Court, Branch 22, General Santos City, in Criminal Case No. 8265 and find accused-appellants Orlie Sultan and Salik Amino guilty beyond reasonable doubt of carnapping defined and penalized under R.A. No. 6539, Section 14, and sentence each of them toreclusion perpetua. We further sentence accused-appellants to jointly and severally indemnify the heirs of the victim in the sum of P50,000.00 as death indemnity, P50,000.00 as moral damages, and P1,367,999.99 as loss of earning capacity. With costs.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

EN BANC
[G.R. Nos. 118940-41 & 119407. July 7, 1997.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO MEJIA y VILLAFANIA, EDWIN BENITO, PEDRO PARAAN, and JOSEPH FABITO, accused-appellants.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellants.
SYNOPSIS In the evening of March 10, 1994, along the expressway at Barangay Ventinilla, Sta. Barbara, Pangasinan, several persons on board a passenger jeepney driven by Teofilo Landingin attacked the latter and a passenger, Vergilio Catugas,

thereby inflicting upon them multiple stab wounds. Landingin died while Catugas survived. Nine (9) persons were held to account for the crime but only four (4) were taken into police custody, namely, Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Febito Romulo Three (3) separate criminal complaints for murder, frustrated murder and violation of R.A. No. 6539 (Anti Carnapping Act of 1992, as amended) were filed against the accused. The first two cases were assigned to the RTC of Dagupan City, Branch 44, presided by Judge Crispin Laron, while the third case was assigned to Judge Silverio Castillo of Branch 43 of the same court. At the arraignment, the four accused entered a plea of innocence in each case. After trial, the Laron court convicted the accused of murder and frustrated murder, while the Castillo court convicted them of violation of the AntiCarnapping Act. The Supreme Court ruled that while the prosecution evidence has established beyond doubt the carnapping of the passenger jeepney, it is not convinced with moral certainty that the appellants committed the crimes charged. The nine persons happened to be passengers of the jeepney by accident, not by design. Witness Catugas admitted that he recognized only three of the nine persons. In the Castillo court, Catugas declared that he was stabbed by the nine persons, but on cross-examination he candidly admitted that only one person stabbed him but he could not remember anymore the person. He also admitted that none of the appellants participated in the stabbing of the jeepney driver. Catugas had ulterior motive in implicating the appellants. He demanded P80,000.00 from the parents of the appellants in consideration of his exculpatory testimony. But the parents could not deliver the money as they cannot afford it. There is no evidence that any of the appellants authorized his parents to approach Catugas or knew the matter of the payment of the P80,000.00. Decision reversed and appellants are acquitted. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; CONSOLIDATION OF TRIALS OF RELATED OFFENSES; PURPOSE THEREOF. The purpose or object of

consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties-litigants. In Raymundo v. Elipe, we held that although consolidation of several cases involving the same parties and the same subject matter is one addressed to the sound discretion of the trial court, joint hearing becomes a matter of duty if two or more cases are tried before the same judge, or even filed with the different branches of the same court, provided one of such cases has not been partially tried. 2.ID.; ID.; RIGHTS OF THE ACCUSED; PRESUMPTION OF INNOCENCE; HOW TO OVERCOME. Enshrined in the Bill of Rights is the right of the accused to be presumed innocent until the contrary is proved. To overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution. Save in certain circumstances as where, for instance, the accused admits the commission of the acts alleged to constitute a crime but interposes justifying circumstances, the burden is never shifted to the accused or diminished by the weakness of his defense. Indeed, unless the prosecution successfully discharges that burden, the accused need not even offer evidence in his behalf. 3.ID.; ID.; ACCUSATION IS NOT SYNONYMOUS WITH GUILT. In our jurisdiction accusation is not synonymous with guilt. The freedom of the accused is forfeit only if the requisite quantum of proof necessary for conviction be in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both oral and documentary, independent of whatever defense is offered by the accused. Every circumstances favoring the accused's innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged. If the prosecution fails to discharge the burden, then it is not only the accused's right to be freed; it is, even more, the court's constitutional duty to acquit him. 4.ID.; EVIDENCE; ENTRIES IN THE POLICE BLOTTERS SHOULD NOT BE GIVEN UNDUE SIGNIFICANCE OR PROBATIVE VALUE, FOR THEY ARE NORMALLY INCOMPLETE AND INACCURATE SOMETIMES FROM EITHER PARTIAL SUGGESTION OR FOR WANT OF SUGGESTION OR INQUIRIES. The CASTILLO court relied heavily on the entries in the police blotters of the police stations of Sual and Sta. Barbara. The silence of the entries on what the appellants had declared in court is not conclusive evidence that they did not report the incident

to the police authorities. They had no participation in the preparation of the entries. Entries in the police blotters should not be given undue significance or probative value, for they are normally incomplete and inaccurate sometimes from either partial suggestion of for want of suggestion or inquiries. The entries in question are sadly wanting in material particulars. At the very most, they only recorded the impression that the appellants were "suspects." 5.CRIMINAL LAW; ANTI-CARNAPPING ACT (R.A. 6539); AMENDMENTS THERETO BY REPUBLIC ACT 7659. R.A. No. 7659 which took effect on 31 December 1993 is applicable to these cases because the crimes were committed on 10 March 1994. Section 14 of the Anti-Carnapping Act was amended by Section 20 of R.A. No. 7659 and now imposes the penalty of reclusion perpetua to death when the owner, driver, or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. Three amendments have thus been made, viz: (1) the change of the penalty of life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the phrase "in the commission of the carnapping" to "in the course of the commission of the carnapping or on the occasion thereof." The latter makes clear the intention of the law to make the offense a special complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of Article 294 of the Revised Penal Code on robbery with violence against or intimidation of persons. As such, the killing (or the rape) merely qualifies the crime of carnapping which for lack of specific nomenclature may be known as qualified carnapping or carnapping in an aggravated form. In short, considering the phraseology of the amended Section 14, the carnapping and the killing (or the rape) may be considered as a singleor indivisible crime or a special complex crime which, however, is not covered by Article 48 of the Revised Penal Code. 6.ID.; ID.; MURDER OF HOMICIDE IN ITS FRUSTRATED STATE DOES NOT QUALIFY CARNAPPING EVEN IF IT IS COMMITTED IN THE COURSE OF THE COMMISSION OF THE CARNAPPING OR ON THE OCCASION THEREOF. But do the words "IS KILLED" in the last clause of Section 14 of R.A. No. 6539, as amended, include the crime of frustrated murder or homicide? Put a little differently, does murder or homicide in its frustrated stage also qualify carnapping if it is committed "in the course of the commission of the carnapping or on the occasion thereof"? The answer must be in the negative in light of the use in said Section 14 of the words "IS KILLED." The unmistakable import thereof is that it refers only to the consummated felony of either murder or homicide. If attempted or frustrated murder or homicide is committed "in the course of the commission of the carnapping or on the occasion thereof," then it

must be deemed to fall under the clause (of Section 14) "when the carnapping is committed by means of violence against or intimidation of any person." 7.ID.; ID.; SINCE SECTION 14 OF R.A. 6539 USES THE WORDS "IS KILLED," NO DISTINCTION MUST BE MADE BETWEEN HOMICIDE AND MURDER. Since Section 14 of R.A. No. 6539 uses the words "IS KILLED," no distinction must be made between homicide and murder. Whether it is one or the other which is committed "in the course of carnapping or on the occasion thereof" makes no difference insofar as the penalty is concerned. It follows then that the killing of the driver, Teofilo Landingin whether it be homicide or murder cannot be treated as a separate offense, but should only be considered to qualify the crime or carnapping. DECISION DAVIDE, JR., J :
p

In the evening of 10 March 1994, along the expressway at Barangay Ventinilla, Sta. Barbara, Pangasinan, several persons on board a passenger jeepney driven by Teofilo Landingin attacked the latter and a passenger, Virgilio Catugas, thereby inflicting upon them multiple stab wounds. Landingin was pulled out from his seat and dumped on the shoulder of the road. One of the attackers took the wheel of the jeepney and drove away. Catugas was thrown out to the middle of the road when the jeepney started to move away. Landingin died as a consequence of the injuries he sustained. Catugas survived. Held to account for the above acts were Gregorio Mejia, Edwin Benito, Pedro Paraan, Joseph Fabito, Romulo Calimquim, one alias Dennis, Alex Mamaril, one alias Mondragon, and another unidentified person. Mejia and Benito were taken into police custody a few hours after the incident; Paraan, the following day; and Fabito, five days after. Calimquim was found dead three days after the incident in question, while the others have remained at large. Three separate criminal complaints for murder, 1 frustrated murder, 2 and violation of R.A. No. 6539 (Anti Carnapping Act of 1992, as amended)3 were filed against them with the Municipal Trial Court of Sta. Barbara, Pangasinan.

Despite service on them of subpoenas requiring submission of counter-affidavits, accused Mejia, Benito, Paraan, and Fabito did not submit their counter-affidavits. On 9 May 1994, Judge Lilia C. Espanol issued an order 4 declaring the accused "to have waived their right to be heard in preliminary investigation"; finding a prima facie case against the accused; recommending that they be charged with and prosecuted for the crimes of murder, frustrated murder, and violation of R.A. No. 6539, as amended; and ordering that the records of the cases be forwarded to the Office of the Provincial Prosecutor for appropriate action. After appropriate proceedings, the Office of the Provincial Prosecutor of Pangasinan filed with the Regional Trial Court (RTC) of Dagupan City three separate informations for murder, frustrated murder, and violation of the AntiCarnapping Act of 1972, as amended, against the aforenamed persons. The informations were docketed as Criminal Cases Nos. 94-00617-D, 94-00619-D, and 94-00620-D, respectively. The first was later amended. The accusatory portions of the informations read as follows:
CRIMINAL CASE NO. 94-00617-D (as amended)
That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with knives with intent to kill, treachery, evident premeditation and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab TEOFILO LANDINGIN inflicting upon him stab wounds which caused his instant death to the damage and prejudice of his heirs.

Contrary to Art. 248 of the Revised Penal Code as amended by Republic Act No. 7659. 5
CRIMINAL CASE NO. 94-00619-D
That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court the above-named accused, armed with knives and with intent to kill, treachery, evident premeditation, and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab VIRGILIO CATUGAS Y CASTAEDA inflicting upon him multiple stab

wounds, the accused having then performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused and that is due to the timely and able medical assistance rendered to said Virgilio Catugas y Castaeda which prevented his death to his damage and prejudice. Contrary to Art. 248 in relation with Art. 6 of the Revised Penal Code.
6

CRIMINAL CASE NO. 94-00620-D

That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with knives by means of violence against person by stabbing to death TEOFILO LANDINGIN, owner-driver of a passenger jeep bearing Plate No. APP-432 with marking Lovely and thereafter with intent to gain, conspiring, confederating and mutually helping one another did then and there wilfully, unlawfully and feloniously take and drive away said passenger jeep bearing Plate No. APP-432 with marking Lovely owned and driven by Teofilo Landingin without the latter's consent, to the damage and prejudice of his heirs. Contrary to Republic Act 6539 as amended.
7

The first two were assigned to Branch 44 of the RTC of Dagupan City presided by Judge Crispin C. Laron (hereafter, LARON court) and thereafter consolidated and jointly tried. The third was assigned to Branch 43 of the said court presided by Judge Silverio Q. Castillo (hereafter, CASTILLO court). At their arraignments, Mejia, Benito, Paraan, and Fabito entered a plea of innocence in each case. I THE CASES IN THE LARON COURT In Criminal Case No. 94-00617-D (Murder) and Criminal Case No. 94-00619-D (Frustrated Murder) in the LARON court, the prosecution presented the following witnesses: Virgilio Catugas, policemen Dominguillo Gulen and Bernardo Clemente, Dr. Cristito Garcia, Ma. Nora Landingin, and Dr. Roberto Valenzuela. Virgilio Catugas was recalled as rebuttal witness. In their defense, accused Mejia, Benito, Paraan, and Fabito took the witness stand. They also presented as

additional witnesses Roberto Lambot, Shirley Lomboy, Conrado Benito, policeman Bernardo Clemente, and Felicidad Fabito in their evidence in chief and Julia Paraan as sur-rebuttal witness. The evidence for the prosecution in these cases may be summarized as follows: At around 7:00 p.m. of 10 March 1994, Virgilio Catugas was in front of the CSI Supermarket in Dagupan City waiting for a transportation to take him to his home at Talibaew, Calasiao, Pangasinan. Later, a passenger jeepney plying the Dagupan City Calasiao route and driven by Teofilo Landingin arrived. He boarded it and occupied that portion of the passengers' seat behind the driver's seat. There were already some passengers inside the jeepney, but they disembarked before the jeepney reached the boundary of Dagupan City and Calasiao, leaving behind Landingin, Catugas, and two other passengers. 8 When the jeepney reached the MacArthur Highway in San Miguel, Calasiao, nine persons flagged down the jeepney and boarded it. One of them, whom Catugas identified to be accused Edwin Benito, sat beside the driver; the rest took the passenger seats behind the driver's seat. Catugas fully recognized Benito because there was light at the ceiling of the jeepney and at the "signboard" portion of the jeepney and the latter sometimes turned his face toward the back where Catugas was seated. Catugas had further observed Benito's face, ears, and eyes. 9 He also recognized accused Mejia, Fabito, and Paraan. 10 The nine passengers told Landingin that they were bound for Pangasinan Village Inn (PVI) in Bued, Calasiao. But when they reached PVI, one of them said that his companions did not know where they were going, and informed Landingin that he would take care of the fare upon reaching Nansangaan, Sta. Barbara, Pangasinan. Upon reaching Nansangaan, one of the nine passengers asked Landingin to drive a little farther. Later, Mejia asked Catugas whether he was Landingin's companion; Catugas answered in the affirmative. Mejia then announced: "[T]his is a hold-up"; while Benito said: "[N]obody will be able to be saved his life [sic]." Another companion of Mejia said: "Proceed." All of the nine drew their daggers and stabbed Landingin and Catugas. 11 Landingin died on that same evening. Dr. Cristito Garcia, who conducted an autopsy on Landingin's cadaver, found three stab wounds two of which were fatal. According to him, the cause of Landingin's death was cardiorespiratory arrest resulting from hypovolemic shock due to internal hemorrhage. 12 Nora Landingin, wife of Teofilo Landingin, spent P1,500 daily during the wake of her

husband; P12,000 for his burial; and P16,000 for the tomb. Nora felt sad because of his death. 13 On the other hand, Catugas, who was pushed out of the jeepney and landed on the road, was brought by some people to the Villaflor Memorial Hospital. 14 Dr. Roberto Valenzuela performed on Catugas exploratory laparatomy debridement and found three multi-lacerations in the right upper extremities and several others on the left upper extremities which could have been caused by bladed instruments. 15 Catugas survived and was confined for seven days. He spent more than P50,000 for his hospitalization and medical expenses. The hospital billed him in the amount of P44,667.25. 16 In the same evening of 10 March 1994, while Policeman Dominguillo Gulen of the Mabini Police Station, Mabini, Pangasinan, was approaching his residence at the poblacion in Sual, Pangasinan, on board a police patrol car, he saw six men walking in front of his house. When he stopped the car, the men ran away. He gave chase and caught two of them, namely, accused Mejia and Benito. Gulen thought that they belonged to an "akyat-bahay gang." When asked what they were doing, the two answered that they were not doing anything and that they were not robbers. They told Gulen that they were from Sta. Barbara. Benito even showed his driver's license and told Gulen that he did not commit any crime and that he was willing to go to the police station. Gulen then brought the two and turned them over to the police station in Sual, Pangasinan. 17 Policeman Bernardo Clemente, who was the desk officer at 1:00 a.m. of 11 March 1994, entered in the police blotter this turn-over and talked to the two. In the course of their conversation, Benito reported that they rode on a jeepney, which was abandoned somewhere in Sual. Clemente decided to make a followup of this report. With Benito as their guide, Clemente and three other policemen were able to find the jeepney with the marking LOVELY in Sitio Nipa, Barangay Baguioen, Sual, Pangasinan. The jeepney had bloodstains on the front and back seats. They brought it to the police station and had the matter recorded in the police blotter. Clemente then instructed the radio operator to call the police station of Sta. Barbara and inform it of the turn-over of Mejia and Benito. At 1:45 a.m. of 11 March 1994, the PNP elements of Sta. Barbara Police Station came and received the two, as well as the passenger jeepney. 18 Also on 11 March 1994, at 12:00 noon, some concerned citizens of Sual apprehended Joseph Fabito in Sitio Looc, Poblacion Sual, as a murder suspect. He was turned over to the Sual Police Station. After having been informed of this

arrest, the Sta. Barbara Police Station took him into its custody. These facts were entered in the Sual Police Station blotter. 19

The accused admitted to having flagged down and boarded Landingin's jeepney that fateful evening of 10 March 1994, but denied having committed the crimes. They claimed that it was Romulo Calimquim and his companions who killed Landingin, stabbed Catugas, and drove away the jeepney. The following is a summary of their version of the events. Edwin Benito, a resident of Ventinilla West, Sta. Barbara, Pangasinan, was the driver of the Elf truck of Lito Lomboy of Bued, Calasiao, Pangasinan, which was used in hauling sand and gravel. His co-accused Mejia, Paraan, and Fabito were his helpers. At around 3:00 p.m. of 10 March 1994, after they completed delivering sand and gravel, the accused returned the truck and went to the house of Fabito's brotherin-law in San Miguel, Calasiao. After two hours of waiting in vain for the brotherin-law, Paraan suggested that they go to the house of his future brother-in-law in Bacayao Norte, Calasiao. After some snacks they proceeded to the town proper and strolled for a while. Then, Benito thought that it was time to go home to Sta. Barbara and suggested that they should. They proceeded to a waiting shed near the National High School to wait for a transportation for Sta. Barbara. At the waiting shed, they saw Romulo Calimquim with three other companions, who were also waiting for a transportation for Sta. Barbara. Calimquim then flagged down an approaching passenger jeepney. He and his companions boarded it. So did Benito and his companions. Calimquim sat beside the driver. The rest took the back seat. 20 According to Paraan, it was Alex Mamaril, the man with a "huge body," who sat beside the driver. 21 At the junction of the roads leading to the Municipal Hall of Sta. Barbara and that leading to the national highway, the man who sat beside the driver (Calimquim, according to Benito; Mamaril, according to Paraan) ordered the driver to proceed to the national highway; the driver did. But after reaching the highway, in Ventinilla, Sta. Barbara, the former ordered the latter to stop, announced that "this is a hold up," then stabbed the driver several times, pulled his body out of the jeepney, took over the wheel, and drove the jeepney. 22 In the meantime, at the back seat, one of the companions of Calimquim pointed a knife at Benito;

while the others told Benito's companions to lie on their belly. It was when Catugas attempted to fight back that he was stabbed. 23 Catugas was then thrown out of the jeepney. 24 Benito and his companions were prevented by the group of Calimquim from alighting from the jeepney. Upon reaching a mountain in Sual, Pangasinan, 25 the man on the wheel ordered Benito, Mejia, Paraan, and Fabito to alight from the jeepney. The group of Calimquim pointed knives 26 and a gun 27 at them. Then suddenly there was a light coming from below. They ran away from the group of Calimquim. 28 Benito and Mejia were together. 29 Later, a policeman saw them. The two told the policeman that they are not "troublesome persons." The policeman brought them to the Police Station of Sual. There, Benito reported what had happened and accompanied the policemen to the place where the jeepney in question was located. 30 Afterwards, the two were detained at Sta. Barbara Police Station. While in detention, they were informed that Calimquim was killed and his body was found in Alaminos. 31 Paraan lost his way. He returned to Sta. Barbara only on 14 March 1994 and went to the house of Roland, his brother-in-law, in Bacayao Norte, to ask him to request a barangay councilman to accompany him to the police station. It was the barangay captain who accompanied him the following day to the police station. There, the police authorities told him that he was among the assailants of Landingin and that he was the one who stabbed Catugas in the night of 10 March 1994 and one of the suspects in the carnapping of the jeepney of Landingin. 32 Paraan was forthwith placed inside the jail.
aisadc

Fabito stayed for awhile in the mountain. At 2:00 a.m. of 11 March 1994, he was by the seashore. He stayed there until 6:00 a.m. and inquired from someone the location of the police station. He went to that station which happened to be Sual Police Station. There, he narrated to the policemen what had happened. When a policeman asked him whether he was the killer, he answered in the negative. At around 1:00 p.m., he was brought to the Sta. Barbara Municipal Jail, where he was detained for three months. Then, he was committed to the Provincial Jail. 33 Sometime after Catugas was discharged from the hospital and was already driving a tricycle, the parents of the accused met with him and informed him that the accused told them that they (the accused) did not commit any wrong. Catugas answered that he had suffered several wounds and spent much for his hospitalization and that since the accused were the ones apprehended, he would

just tell a lie so he could recover the amounts he spent. Catugas then asked P20,000 from each of the accused, or a total of P80,000, and repeated this demand five to six times. 34 The defense, through the testimony of Policemen Bernardo Clemente, also proved that Romulo Calimquim died due to a gunshot wound on 13 March 1994 in Barangay Paitan West, Sual, Pangasinan, as evidenced by Entry No. 4338 of Page 260 of the Police Blotter. 35 On rebuttal, Catugas insisted that it was accused Edwin Benito who stabbed Landingin and that accused Mejia, Paraan, and Fabito were the ones who stabbed him. He further declared that it was the parents of the accused who offered to pay him, but he refused because such an offer could not "be accepted by [his] conscience." 36 The defense then presented Julia Paraan as surrebuttal witness. She denounced as untrue the testimony on rebuttal of Catugas that the parents of accused were the ones who offered to pay him money. Julia declared that they visited Catugas to ask him whether it was true that their children committed the crime. On their first visit, Catugas told them that he could not yet answer that question; but when they returned, Catugas told them that they had to pay the aggregate sum of P80,000, or P20,000 per family of the accused. 37 The trial court gave full credit to the version of the prosecution and relied heavily on the identification of the accused by Catugas, the absence of ulterior motive on the part of the latter, and the offer of the parents of the accused to compromise the cases. In its decision dated 17 November 1994, 38 the LARON court convicted accused Mejia, Benito, Paraan, and Fabito of the crime of murder and of frustrated murder, with treachery as the qualifying circumstance and nighttime and band as aggravating circumstances. Accordingly, it sentenced the first three accused to suffer the penalty of death for the crime of murder; and ten years and one day of prision mayor to seventeen years, four months, and one day of reclusion temporal for the crime of frustrated murder. It credited Paraan with the privileged mitigating circumstance of minority, he being only seventeen years old at the time of the commission of the crimes charged; and sentenced him to reclusion perpetua for murder, and six years of prision correccional to ten years and one day of prision mayor for frustrated murder. The Court also ordered the four accused to pay the heirs of Teofilo Landingin the amounts of P50,000 as death indemnity; P16,000 for the cost of the tomb; and P12,000 for

funeral expenses; and to pay Catugas the amount of P44,687.25 for hospital expenses, plus costs. II THE CASE IN THE CASTILLO COURT In Criminal Case No. 94-00620-D (violation of the Anti-Carnapping Act) in the CASTILLO Court, the prosecution presented as its witnesses Virgilio Catugas and Nora Landingin. The former was recalled as rebuttal witness. The accused Mejia, Benito, Paraan, and Fabito took the witness stand and presented as additional witnesses Conrado Benito and Felicidad Fabito. Their testimonies were substantially the same as those they made in the murder and frustrated murder cases in the LARON court. Prosecution witness Virgilio Catugas added that after Landingin was stabbed, he was thrown out of the jeepney to the shoulder of the road and that one of the culprits took the wheel of the jeepney, started off its engine, and drove off. 39He further declared that while he was confined at the hospital, the policemen of Sta. Barbara investigated him, showed him pictures of the suspects, supplied the suspects' names, 40 and took his statement. 41 After he was discharged therefrom, he was able to talk with the father of accused Benito. He told the father of his hospitalization expenses and asked P80,000, as a settlement of the case, to be paid by the parents of the accused on an agreed date; but before that date came, he had already testified against the accused. 42 Prosecution witness Nora Landingin, widow of Teofilo Landingin, further testified that her husband owned the passenger jeepney in question, as evidenced by Certificate of Registration No. 19253856, 43 and Official Receipt No. MVRR 91354948. 44 The jeepney was worth P140,000. 45 The CASTILLO court gave full faith to the testimony of Virgilio Catugas. It debunked the version of the defense on account of the following "inculpating evidence," which, according to it, bolstered its finding that the accused were the authors of the crime charged:
1.Accused Gregorio Mejia, Edwin Benito, Joseph Fabito and Pedro Paraan speak of innocence and fear for their lives during the ruthless incident, unfortunately they never sustained any bodily injury on their bodies. If the intention of Mok Calimquim and company is to hurt anybody, they could not have concentrated on the persons of Teofilo Landingin

and Virgilio Catugas only but they should have also inflicted stabbing thrusts against their persons (accused).

2.They (accused) posited that for fear of their lives they did not do anything except to passively stay at the back seat of the jeepneymotionless from the place of stabbing incident in Sta. Barbara, Pangasinan up to the mountains in Sual, Pangasinan. Again, if one of the motives of Mok and company is to carnapp [sic] the passenger jeepney of Teofilo Landingin then the logical conclusion that can be had in the instant situation is for the group of Mok to liquidate the driver and all passengers for that matter, including the four (4) accused to eliminate the presence of eyewitnesses. Unfortunately, the four (4) accused joined the group of Mok in going to Sual, Pangasinan without offering any slight resistance in the premises. The natural conclusion that can be derived thereat is that, Mok and company belonged to the group of the four (4) accused who were responsible in perpetrating the offense charged. 3.Assuming en gratia argumenti that Mok and company are the real offenders, why is it that during the long span of travel from Sta. Barbara to Sual, they never made any attempt to jump off the passenger jeepney; neither did they show any positive signs to invite the attention of PNP members stationed along the long route starting in Dagupan City, Binmaley, Lingayen, Bugallon, Labrador, Pangasinan. 4.Accused Gregorio Mejia and Edwin Benito steadfastly claim innocence of the crime charged. In fact, they averred that upon reaching Sual, Pangasinan, they reported to the responding peace officers what happened to them and that their reports was recorded in the Police Blotter of Sual Station. The assertion of accused Benito and Mejia is tainted with absolute falsity and is debunked by the entry in the Police Blotter of Sual Police Station (Exh. G); the subject certification negates accused's statement of innocence. The subject entry which is contained in the Book of Events of Sual Police Station belies any complaint/report made by accused Edwin Benito/Gregorio Mejia

that they were kidnapped or deprived of their liberty with the use of guns and bladed weapons. Upon the other hand, the Certification squarely bespeaks of the incarceration/detention of said accused (Mejia and Benito) at Sual Police Station for they were suspected of having carnapped the passenger jeepney involved in the above case. 5.With respect to accused Joseph Fabito and Pedro Paraan, they likewise vehemently denied the accusation lodged against them. Unfortunately, their conclusion of innocence crumbled when they joined the group from the crime scene starting in Sta. Barbara, Pangasinan up to their destination in Sual, Pangasinan. In fact when they reached Sual, Pangasinan they scampered and run away to different directions to avoid apprehension. Instead of proceeding to the Sual Police Station or making any report to the nearest authority i.e. Barangay Captain of the place they decided to escape which they did with impunity. The records in the Police Blotter of Sual is negatived (sic) of any entry about the whereabouts of accused Paraan and Fabito. 46

The court then convicted accused Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito guilty of the violation of the Anti-Carnapping Act of 1972, as amended. It sentenced the first three accused to death; and Paraan, to reclusion perpetua on account of the privileged mitigating circumstance of minority. It also ordered them to pay the costs. III THE APPEALS AND ASSIGNMENT OF ERRORS Although review in cases where the death penalty is imposed by the trial court is automatic pursuant to Section 22 of R.A. No. 7659, 47 the convicted accused filed with this Court their notices of appeal from the decision of the LARON court and of the CASTILLO court on 18 November 1994 and 22 February 1995, respectively. Criminal Cases Nos. 94-00617-D and 94-00619-D were docketed in this Court as G.R. Nos. 118940-41, and Criminal Case No. 94-00620-D was docketed as G.R. No. 119407. On 2 February 1996, after they filed separate Appellants' Briefs in G.R. Nos. 118940-41 and in G.R. No. 119407, the appellants filed a motion for the consolidation of these cases, which we granted on 27 February 1996.

In their Appellants' Brief in G.R. Nos. 118940-41, the appellants impute upon the trial court the following errors: (a) in giving full faith and credence to the unsubstantiated testimony of prosecution witness Virgilio Catugas relative to the incident in question; (b) in holding them as the persons who stabbed the jeepney driver and Virgilio Catugas in the evening of 10 March 1994 despite the fact that clear and convincing evidence were proffered to point at the real culprits, Romulo Calimquim and his companions; (c) in rendering a verdict of conviction notwithstanding the failure of the prosecution to prove their guilt beyond reasonable doubt; and (d) in convicting them of the crimes charged instead of the crimes homicide and frustrated homicide on the assumption that they are guilty. Being interrelated, the appellants discussed jointly these assigned errors. They submit that: (1)The uncorroborated testimony of Catugas on the identification of the appellants leaves much to be desired. He should not be believed, for he could not even remember who among the appellants were wearing short pants, hat, and shoes at that time. If policeman Gulen could not even identify in court appellant Mejia whom he apprehended in the evening of 10 March 1994 and brought to the Sual Police Station, it was with more reason that Catugas could not have identified the assailants since it was nighttime. The possibility that Catugas got confused, if not mentally and physically drained, as a result of the shocking incident is not far-fetched. There is then a very strong and compelling reason to believe that Catugas mistook the appellants as the real hold-uppers. (2)Catugas told Conrado Benito and Felicidad Fabito that their children did not commit any wrong, but Catugas "vacillated and testified falsely against accused-appellants when they were not able to produce the amount of P20,000.00 each as earlier demanded from them." Catugas' denial of their testimony is self-serving and cannot overcome the positive testimony of Conrado and Felicidad. (3)The actuations of appellants specifically that of Edwin Benito augurs well with their claim of innocence, when they were apprehended. Benito readily showed his driver's license, answered questions propounded by policeman Clemente,

and without hesitation he helped or guided the policemen in locating the jeepney at the place where it was abandoned. He did not try to hide or conceal anything when he was confronted about the incident. Moreover, when Benito and Mejia were picked up by a policeman on that fateful night, they were not "tainted with blood." (4)On the assumption that they are guilty they could only be liable for homicide and frustrated homicide, since treachery was not established. In their Appellants' Brief in G.R. No. 119407, they make the following assignment of errors: (a) the facts charged in the information do not constitute violation of the crime of Anti-Carnapping Act of 1972, as amended; (b) The court a quoerred in convicting them of the crime charged on the basis of surmises and conjecture; and (c) the court a quo erred in convicting them by relying fully on the evidence of the prosecution and completely disregarding the evidence of the defense. As to the first, the appellants argue that intent to gain, which is an essential ingredient of the crime of carnapping, was not proved. They claim that from the evidence adduced "it is very clear that the incident was only a hold-up and that the jeepney was taken to Sual as escape vehicle." In support of the second and third assigned errors, which they discussed jointly, the appellants submit that: (1)The trial court's conclusion on their culpability was based on mere surmises and conjectures and contradicted by the evidence on the record. The fact that the group of Calimquim did not hurt any of the four appellants and that the latter offered no resistance does not prove appellants' membership in Calimquim's group. That they did not even jump off the passenger jeepney or show positive signs to invite the attention of the PNP stationed along the route from Dagupan City to Sual, it was because of fear since Calimquim's group pointed knives at each of them and ordered them to lie down in stooping position. The absence of conspiracy was shown by the fact that in Sual, after they were released as hostages, they ran in separate directions and did not join the group of Calimquim.

(2)The entry in the Sual Police Station police blotter that Benito and Mejia were suspected of having carnapped the passenger jeepney does not bind them, for it was made by a police officer and was contrary to what they had reported. (3)There is no basis for the conclusion that Paraan and Fabito had escaped. (4)The trial court should not have relied on the testimony of Catugas whose identification of the appellants was based only on the pictures and on the information of the policemen. It was impossible for Catugas to narrate in detail the participation of each accused, considering that the light in the jeepney was dim and his principal attention was concentrated on defending himself. (5)Appellants' reporting of the incident disproved their membership in the group of Calimquim. If they were members, their natural course would have been to hide from the authorities. Their voluntary submission to the police immediately after the incident should have been given credence as part of the res gestae. In the Consolidated Appellee's Brief, the Office of the Solicitor General (OSG) urges us to affirm in toto the challenged decisions for failure of the appellants to show that the trial court committed error in finding the prosecution evidence clear, sufficient, and convincing to convict. Catugas, who made an eyewitness account, had the opportunity to observe the appellants during the commission of the crime and had no ill-motive to implicate the appellants falsely. As to the charge that he perjured because the appellants were not able to produce the amount of P80,000 which he allegedly demanded from them, the same should not be believed. The truth is, it was the parents of the appellants who approached Catugas and offered him P80,000 in order that he would not testify against the appellants. Catugas did not accept the offer, as it was against his principles to tell a lie.

The OSG also maintains that treachery was duly proved and, hence, the trial court was correct in convicting the appellants of murder for the death of Teofilo Landingin and frustrated murder for stabbing Virgilio Catugas. Their conviction

for violation of the Anti-Carnapping Act is also proper, since their main purpose was to get the jeepney and they killed Landingin in order that they could get it. They presented no evidence to prove that they ran away with the jeepney for any lawful purpose. In their Consolidated Reply Brief, the appellants try to show that the identification made by the prosecution witness Catugas cannot be denominated as clear, positive, and convincing; for, while it may be true that he "could have taken glimpse or glance at the faces of all the accused-appellants, this fact alone is not adequate and fell short of the required test of 'positive identification'." They strongly suggest that Catugas had ill-motive to testify falsely against them in that he was not paid the P80,000 he demanded. IV THE CRIMES COMMITTED AND THE ISSUE OF CULPABILITY OF APPELLANTS Before we go any further, remarks on some procedural matters are in order. The crimes charged in the informations filed before the LARON court and CASTILLO court are irretrievably linked with or related to one another. They arose out of the same incident, are founded on the same factual milieu, and would be proved by testimonies of the same witnesses. The three cases then should have been consolidated and jointly tried in one branch of the RTC of Dagupan City. What were jointly tried were only the cases for murder and frustrated murder. Section 14 of Rule 119 of the Rules of Court provides:
SEC. 14.Consolidation of trials of related offenses. Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the court's discretion.

The purpose or object of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties litigants. 48 In Raymundo v. Elipe, 49 we held that although consolidation of several cases involving the same parties and the same subject matter is one addressed to the sound discretion of the trial court, joint hearing becomes a matter of duty if two or more cases are tried before the same judge, or even

filed with the different branches of the same court, provided one of such cases has not been partially tried.

We are unable to understand why neither the LARON court or the CASTILLO court nor any of the parties caused, or moved for, a consolidation of the case for violation of the Anti-Carnapping Act (which has the higher docket number) with the cases for murder and frustrated murder in the LARON court (which have lower docket numbers). It was only after the filing of their separate Appellants' Brief in G.R. Nos. 118940-41 and in G.R. No. 119407 that the appellants moved to consolidate the latter with the former. This failure to consolidate the three cases at the trial court level could contribute some difficulty in the appreciation of the evidence. The principal witnesses of the parties testified in all the three cases. Yet, the assessment of their testimony and credibility in the LARON court must not be influenced by their testimonies in the case before the CASTILLO court, and vice versa. In the LARON court, prosecution witness Catugas was unclear in some details of the incident, but clear in the CASTILLO court. Upon the other hand, there were details he disclosed in one of the courts which were not given in the other court. The same observation may be had on the testimonies of the appellants before both courts. As one reads the transcripts of the testimonies of these witnesses in both cases, it would be quite difficult to avoid forming impressions in light of the totality of their testimonies in both courts. Our minds and mental processes must be kept away from the pitfalls of such impressions, for the rules on evidence and the constitutional presumption of innocence in favor of the appellants dictate that we resolve the appeals in the cases before the LARON court and the case before the CASTILLO court solely on the basis of the evidence presented before such courts, respectively. The next preliminary matter to be resolved is whether the crimes of murder in Criminal Case No. 94-00617-D and frustrated murder in Criminal Case No. 9400619-D are absorbed in the violation of the Anti-Carnapping Act in Criminal Case No. 94-00620-D. R.A. No. 7659 which took effect on 31 December 1993 50 is applicable to these cases because the crimes were committed on 10 March 1994. Section 14 of the Anti-Carnapping Act was amended by Section 20 of R.A. No. 7659 and now imposes the penalty of reclusion perpetua to death when the owner, driver, or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof. This Section, as amended, reads in full as follows:
SEC. 14.Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall,

irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death

shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof . (Emphasis supplied).

In the original Section 14 of R.A. No. 6539, the last clause read as follows:
and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped vehicle is killed in the commission of the carnapping. (emphasis supplied).

Three amendments have thus been made, viz: (1) the change of the penalty of life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the phrase "in the commission of the carnapping" to "in the course of the commission of the carnapping or on the occasion thereof." The latter makes clear the intention of the law to make the offense a special complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of Article 294 of the Revised Penal Code on robbery with violence against or intimidation of persons. As such, the killing (or the rape) merely qualifies the crime of carnapping which for lack of specific nomenclature may be known as qualified carnapping or carnapping in an aggravated form. In short, considering the phraseology of the amended Section 14, 51 the carnapping and the killing (or the rape) may be considered as a single or indivisible crime or a special complex crime which, however, is not covered by Article 48 of the Revised Penal Code. Since Section 14 of R.A. No. 6539 uses the words "IS KILLED," no distinction must be made between homicide and murder. Whether it is one or the other which is committed "in the course of carnapping or on the occasion thereof" makes no difference insofar as the penalty is concerned. It follows then that the killing of the driver, Teofilo Landingin whether it be homicide or murder cannot be treated as a separate offense, but should only be considered to qualify the crime of carnapping. Nonetheless, although there could only be one single offense of qualified carnapping or carnapping in an aggravated form, the prosecution had still to

prove the essential requisites of the homicide or murder of Landingin and that of carnapping. This should have been another reason for the consolidation of the carnapping case in the CASTILLO court with the cases before the LARON court. But do the words "IS KILLED" in the last clause of Section 14 of R.A. No. 6539, as amended, include the crime of frustrated murder or homicide? Put a little differently, does murder or homicide in its frustrated stage also qualify carnapping if it is committed "in the course of the commission of the carnapping or on the occasion thereof"? The answer must be in the negative in light of the use in said Section 14 of the words "IS KILLED." The unmistakable import thereof is that it refers only to the consummated felony of either murder or homicide. If attempted or frustrated murder or homicide is committed "in the course of the commission of the carnapping or on the occasion thereof," then it must be deemed to fall under the clause (of Section 14) "when the carnapping is committed by means of violence against or intimidation of any person." We shall now take up the issue of the culpability of the appellants. The evidence adduced by the prosecution has established beyond reasonable doubt the carnapping of Teofilo Landingin's passenger jeepney, which is a motor vehicle under the definition in Section 2 of R.A. No. 6539. 52 The passenger jeepney was taken, with intent of gain, from Landingin by means of violence against him which caused his death and against a passenger, Virgilio Catugas, who suffered physical injuries. But, has the prosecution established with moral certainty the guilt of the appellants? The LARON and the CASTILLO courts held that it did. Enshrined in the Bill of Rights is the right of the accused to be presumed innocent until the contrary is proved. 53 To overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution. 54 Save in certain circumstances as where, for instance, the accused admits the commission of the acts alleged to constitute a crime but interposes justifying circumstances, the burden is never shifted to the accused or diminished by the weakness of his defense. Indeed, unless the prosecution successfully discharges that burden, the accused need not even offer evidence in his behalf. 55

In our jurisdiction accusation is not synonymous with guilt. The freedom of the accused is forfeit only if the requisite quantum of proof necessary for conviction be in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both oral and documentary, independent of whatever defense is offered by the accused. Every circumstance favoring the accused's innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged. 56 If the prosecution fails to discharge the burden, then it is not only the accused's right to be freed; it is, even more, the court's constitutional duty to acquit him. 57 After a painstaking review of the records and the transcripts of the stenographic notes of the testimonies of the witnesses in the cases before the LARON court and the CASTILLO court, we are not convinced with moral certainty that the appellants committed the crimes charged. Reasonable doubt burdens our conscience; our minds cannot rest easy on a verdict of conviction. The prosecution had nine suspects in these cases: the four appellants and the five others, namely, Romulo Calimquim, Alex Mamaril, a certain Dennis, a certain Mondragon, and another described as John Doe. All nine were forthwith charged with the crimes of murder, frustrated murder, and carnapping in Criminal Cases Nos. 3310, 58 3313, 59 3311, 60respectively, of the Municipal Trial Court of Sta. Barbara, Pangasinan, and then in the informations in Criminal Cases Nos. 9400617-D, 61 and 94-00619-D 62 of the LARON court and Criminal Case No. 9400620-D 63 of the CASTILLO court, respectively. The theory of the appellants is that they were not members of the group of Romulo Calimquim. The prosecution has no proof to prove otherwise; but the LARON and the CASTILLO courts, through inferences from certain facts, concluded that the appellants were. The conclusion is rather tenuous. While the rigorous cross-examination of the appellants in all these cases has established close relationship among the appellants by reason of their residence and work, (Benito, as sand-and-gravel truck driver and Mejia, Fabito, and Paraan as his keepers), it miserably failed to establish any relationship between them and the five others headed by Calimquim. What then looms large in our minds is that the appellants and the five others happened to be passengers of Landingin's jeepney by accident, not by design. If the appellants were with the five others until Sual, Pangasinan, it was because they were intimidated and made to lie down on their bellies inside the jeepney.

Another circumstance further proves that the appellants did not belong to the group of Calimquim. Upon arrival in the mountains of Sual, they fled from the Calimquim group when the first opportunity to do so came. We find to be absolutely without basis the statement of the CASTILLO court that the appellants abandoned Landingin's jeepney in Sitio Nipa, Baquioen, Sual, Pangasinan, "upon seeing the arrival of concerned citizens and members of the Sual Police Station; the responding peace officers effected the recovery of the subject jeepney sans the accused/culprits." No prosecution witness so testified. In the CASTILLO court, no policeman was presented as witness for the prosecution. The evidence presented by both the prosecution and the defense reveal that after appellants Benito and Mejia were picked up by Policeman Gulen on the latter's suspicion that they were members of an akyat-bahay gang, they voluntarily informed the police authorities of the Sual Police Station of what had happened. It was this information that brought the policemen to where the subject jeepney was located. Benito even accompanied the policemen. This resulted in the recovery of the jeepney by the policemen. Appellant Paraan also presented himself later to the Police Station of Sta. Barbara. Appellant Fabito, although apprehended by concerned citizens of the place to where he had fled, voluntarily reported what he knew to the police authorities of Sual and Sta. Barbara. Unfortunately, the CASTILLO court relied heavily on the entries in the police blotters of the police stations of Sual and Sta. Barbara. The silence of the entries on what the appellants had declared in court is not conclusive evidence that they did not report the incident to the police authorities. They had no participation in the preparation of the entries. Entries in the police blotters should not be given undue significance or probative value, for they are normally incomplete and inaccurate sometimes from either partial suggestion of for want of suggestion or inquiries. 64 The entries in question are sadly wanting in material particulars. At the very most, they only recorded the impression that the appellants were "suspects." As to the alleged participation of the appellants in the commission of the crimes, the prosecution had to rely solely on the testimony of Virgilio Catugas. The totality of his testimony in the cases before the LARON court leaves much to be desired. The prosecutor who conducted the direct examination was unable to propound sensible questions to elicit clear answers bound to reconstruct faithfully the events surrounding the commission of the alleged crimes. This deficiency thus tempted the trial judge to ask more questions. Despite the latter's participation, the testimony of Catugas fails to convince us that the appellants indeed participated in the commission of the crimes. On crossexamination in the LARON court, Catugas categorically admitted that he did not

know the names of the appellants and that he could recognize only three of the nine accused. Thus:
ATTY. TAMINAYA: QNow, in paragraph 8 of your statement, you said and you mentioned the names of the person and I will now read: "QHow about the true names of the suspect, do you know them? AIn fact I do not know, however, based on the police investigation of Sta. Barbara PNP, they were, Gregorio Mejia, Edwin Benito, Joseph Fabito, Pedro Paraan, Mok Calimquim, alyas Dennis, Alex Mamaril, Dennis Abrigo alyas Mondragon and one unidentified person." QCan you tell this Court why these persons were written in your statement? ABecause of the police investigation. QSo, were it not of the police and the pictures, you were not able to identify the accused, is that correct? AI can recognize the others, sir. QHow many of the nine (9) can you recognize? AThree (3) of them, sir. COURT: QWhat you do mean when you said that you can recognize three (3) of them? AI can remember those persons who sat near me. QWho of the four (4) accused who sitted [sic] near you? AThe one wearing red T-shirt, the second to the last of the four accused. QSo, how were you able to identify these [sic] person who is [sic] wearing in [sic] red T-shirt?

AI saw his face, sir. QHow were you able to recognize the last person (referring to Edwin Benito)? AHe was besides [sic] the driver, Sir.
65

Further indicating the uncertainty of his identification, he made the following admissions on cross-examination:
QNow, you said you recognized the persons who sat besides [sic] the driver, is it not? AYes, sir. QPlease point to him? AHe was wearing a dark color. QWas it a T-shirt or a polo shirt? AI cannot tell, sir. QHow about the person sitting in front of you whom you pointed to this person wearing in red T-shirt? AI can no longer remember, sir. QHow about the person next to the one with red t-shirt, do you remember his shirt? AI don't know, sir. QHow about Gregorio Mejia, do you remember his clothes? AI cannot remember, sir. QYou can't remember also whether one of these accused was wearing a hat at that time? AI cannot remember, sir.

In the case before the CASTILLO court, he declared that he was stabbed by the nine persons. Thus:

COURT: QWho were involved in stabbing? AAll of them, sir. QWho was the assailant and who was stabbed? AThe 9 persons, sir. QWhen you said 9 persons, they were the 9 persons who participated in the stabbing incident and who were the victims? AMe and the driver, sir. PROS. MARATA: QHow many times were you stabbed by the nine persons, four of whom were inside the courtroom? AFrom the scar left of my body, there are 22 stabbed wounds, sir.
66

Yet, no further questions were asked for him to convincingly show that the appellants inflicted any of the stab wounds on his body. Further compounding the uncertainty and unreliability of Catugas' testimony, he candidly admitted on cross-examination that only one person stabbed him. Thus:
ATTY. TAMINAYA: QHow many times were you stabbed by them? ATwice, sir. QAnd you cannot recognize the person who stabbed your? (sic) AI can identify him, sir. QHow many persons stabbed you then? AOnly one (1) person, sir.
67

Upon further questioning by the court, Catugas declared that six of the nine stabbed him:

COURT: QHow many stab wounds did you sustain? AMore than twenty (20) stab wounds, sir. QA while ago you mentioned there were two (2) initial stab blows with respect to the other stab blow who delivered this stab blow? AHis companions and also Gregorio Mejia, sir. COURT: Proceed. ATTY. TAMINAYA: QWhen you said his companions and Gregorio Mejia are you referring to the five (5) other persons as the companions of Gregorio Mejia who participated in stabbing you? AI think it is about six (6) of them who stabbed me, sir.
68

He could not remember anymore the person who inflicted the last stab wound, and then declined to point to anyone of the herein four appellants as the person who did it. Thus:
COURT: QWhen they stopped stabbing you they did not stab you anymore? AThey still stabbed me on my right upper arm, sir. (Witness showing his scar near the shoulder.)

QYou said you were stabbed on your right shoulder, who stabbed you among these nine (9) persons? AI could not remember anymore, sir. QWhen you said you cannot remember, you cannot tell this Court whether it was one among the four (4) accused in this case who stabbed you on your right upper arm?

AI could not point the person responsible in stabbing my shoulder because that is the last stab wound, sir.69

It would thus be sheer speculation and conjecture to conclude from Catugas' testimony in the CASTILLO court that the appellants had inflicted any of the stab wounds on Catugas. Moreover, on question by the trial judge in the CASTILLO court, Catugas categorically admitted that none of the appellants participated in the stabbing of Landingin. Thus:
COURT: xxx xxx xxx QThese two persons who participated in stabbing Teofilo Landingin, can you inform the Court if the four (4) accused now or these two persons are among the four (4) accused now? AThey are not here, sir.
70

Finally, Catugas was not entirely free from any ulterior motive in implicating the appellants. He admitted that he demanded P80,000 from the parents of the appellants, but before they could give the money on the agreed date, he testified against the appellants in the LARON court. The following exchanges between him and counsel for the defense before the CASTILLO court are revealing:
ATTY. TAMINAYA: QAfter you were released from the hospital, were you able to talk with the father of Edwin Benito? AYes, sir. QAnd you told them about your expenses in the hospital, is that correct? AYes, sir. QAnd you demanded from them to pay P40,000.00 is that correct? AI was asking P80,000.00, sir. COURT:

QWhy were you asking the amount of P80,000.00 then? ABecause he pleaded to me, sir. QWhat you are trying to convey to the Court is that you are settling the case with Edwin Benito the amount of P80,000.00? AYes, sir. COURT: Proceed. ATTY. TAMINAYA: QAnd the parents of Edwin Benito cannot pay that P80,000.00 because they are poor? AThey will not pay that amount on that date, we have agreed of another date for them to pay, sir. COURT: QDid the parents of Edwin Benito made a counter offer? AThat is already their counter proposal, sir. QWhat you want to tell the Honorable Court is that you agreed to pay you P80,000.00 but he cannot pay you at that very moment? AYes, sir. COURT: Proceed. ATTY. TAMINAYA: QDid you agree for the amount of P80,000.00? COURT: That is the settlement money. ATTY. TAMINAYA:

QSo, it is clear that if only they have given P80,000.00, you should not have testified in this case? APROSECUTOR MARATA: Improper, your honor. ATTY. TAMINAYA: As follow-up question, your Honor. COURT: Sustained. Hypothetical. ATTY. TAMINAYA: QYou said that there was the agreed date, what happened on the agreed date? AThe date has not yet arrived but I have already testified, sir. COURT: QWhen you said you have already testified, you are referring to your testimony in RTC Branch 44? AYes, sir.
71

In the LARON court, efforts were made by the prosecution to cushion the impact of Catugas' demand for payment of P80,000 in consideration of his exculpatory testimony. It wanted to prove that the parents of the appellants were in fact the ones who proposed. But the testimony of Conrado Benito, which the prosecution failed to satisfactorily rebut, is that the parents went to see him to verify whether their children had indeed committed the crimes; but Catugas replied that since the appellants were the ones apprehended, he would just pinpoint them so that he could recover what he had spent. He then demanded P80,000, which he equally apportioned among the parents of the four appellants. Conrado Benito testified as follows:
QWhat did you tell him? AI told him that our children telling us that they did not commit any wrong and I told them to tell the truth and we are not consenting

them to whatever they have done if they have done something wrong. QWhat was the answer of Virgilio Catugas? AHe said, he suffered several wounds and that he spent so much for his hospitalization, and he said also that they were the persons who were apprehended and so, I will just tell a lie for the same because how could I collect for the amount I spent if I will not tell a lie? COURT: QYou consider Virgilio Catugas as a liar and you are not a liar? AYes, sir. ATTY. TAMINAYA: QCan you tell this Court what did you tell him about that expenses? AI said, "then we can at least help you", because he is saying that he suffered several wounds. QHow much did Virgilio Catugas tell you? AThe last time that we talked, he ask[ed] us to give P20,000.00 each. COURT: QHow many times did he tell you? AFor 5 to 6 times because he told us to return to him.
72

But the parents could not deliver the P20,000 each was to pay, for they could not afford it. Conrado so declared, thus:
ATTY. TAMINAYA: QWhen Virgilio Catugas told you to give P20,000.00, can you tell this court if he made mention to the wife of Teofilo Landingin? ABecause he is collecting from us P20,000.00, he told us that we would not tell the same to Mrs. Landingin.

QWere you able to give that P20,000.00? ANo sir, not even a single centavo. QWhy? AWe cannot pay because even payment for attorney's fees, we cannot afford. 73

The LARON court gave credence to the version of the prosecution and even took the incident as offer of compromise, which may be considered an implied admission of guilt. Said court misapplied Section 27 of Rule 130 of the Rules of Court. 74 There is no evidence whatsoever that any of the appellants authorized his parents to approach Catugas or knew the matter of payment of P80,000. Moreover, if one were to believe the explanation of Catugas that the amount of P80,000 represented the expenses he incurred for his hospitalization and medical bills, then the offer to reimburse it is not admissible in evidence as proof of criminal liability pursuant to the last paragraph of Section 27 of Rule 130. On the whole then we entertain, unavoidably, serious doubt on the participation of the appellants in the commission of the crimes charged.

cdtai

WHEREFORE, the challenged decisions in Criminal Case No. 94-00617-D (for Murder) and Criminal Case No. 94-00619-D (for Frustrated Murder) of Branch 44 and in Criminal Case No. 94-00620-D (violation of Anti-Carnapping Act of 1972) of Branch 43 of the Regional Trial Court of Dagupan City are REVERSED. Accused-appellants Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito are ACQUITTED on the ground that their guilt therefor has not been proved beyond reasonable doubt or with moral certainty. Their immediate release from detention is hereby ordered, unless other lawful and valid grounds for their further detention exist. No costs. SO ORDERED.

FIRST DIVISION
[G.R. No. 135904. January 21, 2000.]

ALVIN TAN y LAGAMAYO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Gutierrez Sundiam & Villanueva for petitioner. The Solicitor General for respondent.
SYNOPSIS Appellant Alvin Tan was convicted for violating RA 6539, An Act Preventing and Penalizing Carnapping. The Court of Appeals affirmed the conviction. Allegedly, Tan took the 1987 Mitsubishi Gallant car of complainant Philip See on November 7, 1992 for test-drive in the guise that the former is interested in buying the same. However, Tan sped away and never returned. See tried to get in touch with Tan but in vain. On June 2, 1993, See finally lodged a complaint for carnapping. Tan, on the other hand, asserted that See offered to sell his car to him but he failed to pay for the same. He returned the car to See but the latter instituted this case against him. According to the appellate court, Tan's failure to return the car constituted unlawful taking. There was no unlawful taking. The testimony of See evinced that he asserted to the taking of the car by Tan even after the alleged test-driving for See neither withheld his consent nor withdrew the same during the seven month period the car was with Tan. At the very least, See tolerated Tan's possession of the car. Tan was acquitted on ground of reasonable doubt. SYLLABUS 1.CRIMINAL LAW; ANTI-CARNAPPING LAW; COMPARED WITH ROBBERY AND THEFT. There is no arguing that the anti-carnapping law is a special law, different from the crimes of robbery and theft included in the Revised Penal Code. It particularly addresses the taking, with intent of gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. But a careful comparison of this special law with the crimes of robbery and theft readily reveals their common features and characteristics, to wit: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latter's consent. However, the anti-carnapping law particularly deals with the theft and robbery of motor vehicles. Hence, a motor vehicle is said to have been

carnapped when it has been taken, with intent to gain, without the owner's consent, whether the taking was done with or without violence or intimidation of persons or with or without the use of force upon things. Without the anticarnapping law, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before the enactment of said statute. 2.ID.; ID.; UNLAWFUL TAKING; NOT PRESENT IN CASE AT BAR. This Court finds that there was no unlawful taking. A felonious taking may be defined as the act of depriving another of the possession and dominion of movable property without his privity and consent and without animus revertendi. Thus, an unlawful taking takes place when the owner or juridical possessor does not give his consent to the taking; or, if the consent was given, it was vitiated; or in the case of Roxas, Trinidad and de Vera, where an act by the receiver soon after the actual transfer of possession constitutes unlawful taking. In the last scenario, the receiver's act could be considered as having been executed without the consent of the giver. SEE's testimony clearly evinced his assent to TAN's taking of the car not only at the time he yielded the physical possession thereof for the alleged test-driving but even thereafter, for he neither withheld his consent nor withdrew the same during the seven-month period the car was with TAN. At the very least, SEE tolerated TAN's possession of the car. A contrary conclusion inspires only disbelief. For if the car was truly carnapped, why did SEE wait for seven months before he reported the same? Further, TAN's alleged refusal to meet SEE despite his repeated attempts to do so should have sufficiently alerted him of the former's supposed malevolent intent, yet he still did not report the taking. Even if he failed to report the taking, months after the alleged test-driving, he had allegedly seen his car in the initial stages of dismemberment on 19 May 1993 yet, again, he did not report the carnapping on that day nor on the next, but much later on 7 June 1993 or almost a month thereafter. SEE said he believed and expected that the car would inevitably be returned to him. This is not only unsatisfactory but irreconcilable and contradictory with his imputations of carnapping. For if he believed that the vehicle would be returned to him for friendship's sake then he could not have at the same time also believed that this friend carnapped his car. Clearly, SEE's behavior immediately preceding, contemporaneous and subsequent to the alleged unlawful taking was definitely not the distraught conduct of a man whose car was carnapped. He was even able to register the averred stolen vehicle without sounding the alarm. 3.REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT. The mere absence of a written contract of sale in this case does not necessarily mean that SEE did not also consent to the taking nor

that TAN's possession of the car was unlawful. The prosecution still has the onus probandi of showing that TAN's taking was unlawful. What took place in these proceedings was that the appellate court magnified the weakness of the defense and overlooked the prosecution's failure to discharge the onus probandi - to show beyond reasonable doubt that the crime of carnapping was indeed perpetrated. In short, the Court of Appeals and the trial court simply believed and accepted the prosecution's tale. It ignored the basic legal precepts that conviction rests upon the strength of evidence of the prosecution and not on the weakness of the evidence for the defense; and assuming that the evidence of the accused is weak, the same is no reason to convict, especially, as in this case, where the case of the prosecution is not strong enough to sustain a conviction. To reiterate, the burden of proof rests upon the prosecution, and unless the State succeeds in proving by overwhelming evidence the guilt of the accused, the constitutional presumption of innocence applies. A conviction in criminal cases must rest on nothing less than the moral certainty of guilt. 4.ID.; ID.; FINDINGS OF APPELLATE COURT, GENERALLY RESPECTED; EXCEPTION. There is no quarrel in the conclusiveness of the findings of fact of the Court of Appeals, for upon this principle hinges the rule that the jurisdiction of the Supreme Court in cases brought before it from the Court of Appeals is limited to reviewing errors of law. However, it appears on record that the appellate court overlooked, ignored, and disregarded some fact and circumstance of weight or significance that if considered would have altered the result. Cogent reasons therefore exist justifying the disregard of the findings of the appellate court, superseding the same with our own determinations and conclusions, and ordering the reversal of the questioned decision and resolution of said Court of Appeals.
AHcCDI

DECISION DAVIDE, JR., C.J :

p

In this petition for review under Rule 45 of the Rules of Court, petitioner Alvin Tan (hereafter TAN) seeks his acquittal by a reversal of the 29 June 1998 decision 1 of the Court of Appeals in CA-G.R. CR No. 20688 which affirmed his conviction for violating Republic Act No. 6539, An Act Preventing and Penalizing Carnapping. 2 TAN's motion for reconsideration of said decision and motion for oral arguments were denied for lack of merit by the Court of Appeals in its 6 October 1998 resolution. 3 Said decision and resolution of the Court of Appeals

affirmed the 19 December 1994 judgment of conviction against TAN by the Regional Trial Court, Branch 95, Quezon City in Criminal Case No. Q-93-45449. TAN's indictment
4

Cdpr

for violation of Republic Act No. 6539 reads as follows:

That on or about the 7th day of November, 1992, in Quezon City, Philippines, the above-named accused, with intent to gain and without the consent of the owner thereof, did, then and there willfully, unlawfully and feloniously take, steal and carry away one (1) Mitsubishi Gallant car colored blue, bearing Plate No. CGS-723 owned by one PHILIP SEE, of undetermined value, to the damage and prejudice of said Philip See.

Upon his arraignment on 14 July 1993 and with the assistance of counsel, Tan pleaded not guilty to the charge. Trial immediately ensued as the parties waived the holding of a preliminary conference. The trial court's terse recapitulation of the prosecution evidence proceeded in this manner: 5
. . . [P]rivate complainant Philip See is the registered owner of a 1987 Mitsubishi Gallant four-door valued at P420,000.00, bearing plate no. CGS-723, colored blue, and with motor no. 4G32-FG2704 and serial/chassis no. A161UL-3011. Sometime in March 1992, accused Alvin Tan was introduced to Philip by Alvin's fiance, one Vienna Yu, and from then on, Philip and Alvin became friends and started to see each other on several occasions thereafter. On November 7, 1992, about 9:30 a.m., Philip together with his wife Ruby See and Robert Chua (a neighbor) was at his place of residence . . . when Alvin arrived thereat. He made it known to Philip that he was intending to buy Philip's aforesaid car and that he wanted to test-drive it. On account of their friendship and believing Alvin's assurance that he would return the car after he shall have test-driven it, Philip granted Alvin's request . . . . On thus getting hold of the car, Alvin sped away and never returned. In vain, Philip waited for Alvin to show up and return the car; Alvin simply did not show up, much less cause the return of the car. Thus, Philip started to call up and look for Alvin at his office at Roosevelt Avenue, QC, but Alvin avoided him by refusing to answer the telephone calls or pretending he was not around; and Philip's attempts to see Alvin at his office similarly proved futile, for whenever Philip would go to said office, Alvin would refuse to see him. Dismayed though he was, Philip

desisted as long as he could from reporting and complaining about the matter to the authorities; Philip still believed that being a friend, Alvin eventually would come around to returning the car to him. Meanwhile, sometime on March 5, 1993, with the assistance of some personnel of the Land Transportation Office (LTO), Philip was able to cause the car's 1993 renewal registration in the absence of the vehicle and he was issued the corresponding official receipt therefor.

Sometime on May 19, 1993, Philip again tried to see Alvin at his place at Roosevelt. Again Philip was told that Alvin was not around. One of Alvin's employees, however, advised Philip to the effect that the car was parked and hidden right behind Alvin's warehouse. The location of the warehouse having been given to him, Philip went to the place and at a distance of some five feet, he saw the vehicle parked at the rear end of the warehouse. To his shock and surprise, he saw that parts of the car, like the bumper, a door, and several interior accessories, had been dismantled and were already missing. Worse, several pieces of wood were piled on top of the car as if to purposely hide and conceal it from view. Still failing to recover his car, Philip on or about June 2, 1993, formally lodged a complaint for carnapping against Alvin before the QC police station. Some two days later, or on June 4, 1993, Philip reported the loss of his car to the Philippine National Police (PNP) Traffic Management Command and he accordingly signed the corresponding complaint sheets. Too, an alarm for the subject car was issued. To his further shock and consternation, Philip was informed by the PNP's Highway Patrol Group (HPG) that somebody had applied for a clearance to sell the car and that the applicant was made to appear as one Philip See. . . . Philip denied his alleged signature on the application and also denied having supposedly applied for clearance to sell his vehicle.
LLphil

Meanwhile, acting on the complaint lodged by Philip against Alvin before the QC police station 1, the police authorities scheduled a visit to the place of Alvin, with Philip being asked by them to pinpoint and identify Alvin in the course thereof. Accordingly, at Alvin's place, he was identified and invited by the police to the station for investigation. While still at Alvin's office, Philip saw on top of Alvin's table what Philip believed to be accessories from his car, consisting of a two-way radio antenna and car stereo, which appeared to him to have been dismantled from the subject car.

At that time Alvin took the car supposedly to test-drive it on November 7, 1992, the car was in top condition, had low mileage, was 'fully loaded' with complete interior accessories including an imported Kenwood stereo, and had imported magwheels.

Expectedly, Tan impugned the prosecution's version and presented a completely diverse tale. Firstly, TAN asserted that Philip See (hereafter SEE) filed the complaint to purposely collect a debt from him and wittingly use the court as collecting agent. Secondly, TAN claimed that SEE instituted the complaint in revenge of the quarrels they had over TAN's girlfriend whom SEE wooed, and (2) in retaliation against the complaint for grave threats and illegal possession of firearms filed by one of TAN's employees against SEE. TAN then traced this legal predicament to the time when his girlfriend introduced him to SEE in March 1992. TAN and SEE instantly became friends for they shared a similar acumen for business and passion for target shooting. Inevitably, they engaged in and entered into several business transactions which resulted in TAN's indebtedness to SEE in the amount of P800,000. In spite of this, SEE still offered to sell the subject Mitsubishi Galant to TAN for the amount of P280,000. TAN declined the offer. SEE persisted to the extent that he brought the car to TAN's residence on 26 November 1992 and generously suggested that he would just add into the latter's existing indebtedness to him the car's purchase price. Sometime in February 1993, SEE tried to collect the car's purchase price but TAN had still no funds. So TAN suggested that he would apply with a bank for a car loan using the car as security and apply the proceeds of said loan in payment for the car. SEE agreed. Subsequently, TAN submitted in his name a loan application with the BPI Family Bank in Makati. In compliance with the requirements of the loan application, SEE personally supervised the car's appraisal and inspection on 19 March 1993. TAN additionally maintained that he and SEE signed a deed of sale covering the subject automobile but that TAN did not receive a copy of said deed upon SEE's pretext that he would use it for facilitation of the loan. The bank approved the loan application but only in the amount of P129,000. Naturally, SEE considered the amount insufficient and hence, refused to accept the terms of the loan. Consequently, TAN did not seek the release of the loan. The friendship eventually soured and the resulting "misunderstanding" with SEE impelled TAN on 19 May 1993 to instruct his warehouse overseer to return the car to SEE's residence. TAN's employee drove the car to SEE's house, parked the

car outside the gate and then handed over the keys of the car to SEE's wife, Ruby. Tan was therefore surprised when on 14 June 1993, police officers arrived at his residence and invited him to the police station; this, to TAN's additional bewilderment, was in connection with SEE's complaint for the carnapping of the car he already returned. TAN peacefully went with the police authorities to the station. 6 Weighing the evidence thus proffered, the trial court believed in the prosecution's version, particularly in SEE's clear, positive, and straightforward account which said court found amply demonstrated that SEE had withdrawn the consent initially given to TAN when the latter went beyond testdriving and appropriated the car for his own use and benefit. To the trial court, TAN's failure to return the car and his consequent appropriation thereof constituted unlawful taking the gravamen of the crime charged. It then concluded that TAN was obviously actuated by intent to gain. The trial court then considered as completely undeserving of belief, TAN's supposition that despite his heavy indebtedness and given his increasing difficulty to pay his loans, SEE had benignly extended him credit, delivered to him the subject car and bestowed upon him the ultimate privilege of paying the car at his convenience. Thus, in a decision promulgated on 19 January 1994, the trial court convicted TAN, the dispositive portion of which read as follows: 7
WHEREFORE, the Court finds accused Alvin Tan y Lagamayo guilty beyond reasonable doubt of the crime of carnapping charged herein, defined and punished in Sec. 2, in connection with Sec. 14, both of Rep. Act No. 6539 . . . and, accordingly, he is hereby sentenced to suffer the indeterminate penalty of imprisonment of from fourteen years, eight months, and fifteen days as minimum, to seventeen years and four months as maximum; to restore to the offended party, Philip See, the subject car . . . or in default thereof, to indemnify said offended party in the sum of four hundred twenty thousand pesos; and, to pay the costs, without prejudice to the application of Rep. Act No. 6127 in accused's favor.
Cdpr

TAN filed a motion for new trial on the ground of newly discovered evidence which was granted by the trial court in its 4 July 1994 order. SEE then moved for reconsideration, but was denied by the trial court in its 1 March 1995 order. SEE challenged these aforementioned orders of the trial court in a petition for certiorari filed with the Court of Appeals. On 23 August 1995, the appellate court gave due course to and granted the petition. TAN assailed the decision of

the Court of Appeals through a petition for review before the Supreme Court, which promptly dismissed the petition. 8 Subsequently, based on TAN's "Notice of Appeal Ex Abundanti Ad Cautelam," the trial court ordered the elevation of the records of the case to the Court of Appeals. Meanwhile, TAN challenged the Court of Appeals' affirmance of his conviction. He argues before this Court that the appellate court erred in (1) ignoring the peculiar nature of the law on carnapping, (2) disregarding that there was no unlawful taking, and (3) rejecting circumstances on record which, if considered, would be sufficient to acquit him on reasonable doubt. In invoking the specificity of the carnapping law, TAN contends that the Court of Appeals should not have employed as bases for his conviction the basic principles in theft enunciated in (1) People v.Roxas, 9 where rice was received, carted away and consumed, (2) U.S. v. de Vera, 10 where a bar of gold and P200 in bank notes were received for examination and changing into coins but instead appropriated, and (3) People v. Trinidad, 11 where a ring was received for pledging but was sold and the proceeds thereof appropriated for the personal use of receiver. A cursory reading of the pertinent portion of the challenged Court of Appeals decision reveals that the basic principles of theft alluded to pertain to the signification of unlawful taking and as to when this takes place. Thus, the Court in Roxas,de Vera and Trinidad declared that "the unlawful taking or deprivation may occur at or soon after the transfer of physical possession" where "an act done by the receiver soon after the actual transfer of possession resulted in unlawful taking." In such a case, "the article was taken away, not received, although at the beginning the article was in fact given and received." Hence, in applying these principles, the Court of Appeals adopted the theory of the Solicitor General that SEE entrusted his car to TAN merely for test driving, and the latter initially received the same for that purpose only; TAN must perforce be deemed to have unlawfully "taken" the car soon after the test-driving for he failed to show-up and return said vehicle. 12 There is no arguing that the anti-carnapping law is a special law, different from the crimes of robbery and theft included in the Revised Penal Code. It particularly addresses the taking, with intent of gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. 13 But a careful

comparison of this special law with the crimes of robbery and theft readily reveals their common features and characteristics, to wit: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latter's consent. However, the anti-carnapping law particularly deals with the theft and robbery of motor vehicles. 14 Hence, a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owner's consent, whether the taking was done with or without violence or intimidation of persons or with or without the use of force upon things. Without the anticarnapping law, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before the enactment of said statute.

Obviously, TAN's proposition that the rudiments of theft, particularly as regards unlawful taking, should not have been applied by the Court of Appeals, was misplaced. We shall see later on that the appellate court's interpretation redounded in TAN's favor. As an element common to theft, robbery and carnapping, unlawful taking its import, intention and concept should be considered as also common to these crimes. 15 However, we reject the Court of Appeals' acceptance, hook, line and sinker of the Office of the Solicitor General's thesis that there was unlawful taking in this case. SEE asserted that on 7 November 1992 he turned over possession of his Mitsubishi Galant to TAN for test-driving only, but the latter did not return the same after the lapse of not just several hours but a number of months. SEE formally filed the complaint for carnapping on 2 June 1993. In the meantime, during the seven-month interval when the car was allegedly in TAN's possession, (1) SEE had persistently and perseveringly attempted to talk to and see TAN but the latter adamantly refused to respond to his telephone calls or personally receive him in his visits; (2) SEE was able to register the car with the LTO on 5 March 1993; and (3) SEE had seen his car on 19 May 1993 from a distance of some five feet, parked at the rear of TAN's warehouse and in the initial stages of dismantling. SEE also believed that "being a friend, [TAN] eventually would come around to returning the car to him." 16 Even solely from this testimony, this Court finds that there was no unlawful taking. A felonious taking may be defined as the act of depriving another of the possession and dominion of movable property without his privity and consent and without animus revertendi. 17 Thus, an unlawful taking takes place when the owner or juridical possessor does not give his consent to the taking; or, if the

consent was given, it was vitiated; or in the case of Roxas, Trinidad and de Vera, where an act by the receiver soon after the actual transfer of possession constitutes unlawful taking. In the last scenario, the receiver's act could be considered as having been executed without the consent of the giver. SEE's testimony clearly evinced his assent to TAN's taking of the car not only at the time he yielded the physical possession thereof for the alleged test-driving but even thereafter, for he neither withheld his consent nor withdrew the same during the seven-month period the car was with TAN. At the very least, SEE tolerated TAN's possession of the car. A contrary conclusion inspires only disbelief. For if the car was truly carnapped, why did SEE wait for seven months before he reported the same? Further, TAN's alleged refusal to meet SEE despite his repeated attempts to do so should have sufficiently alerted him of the former's supposed malevolent intent, yet he still did not report the taking. Even if he failed to report the taking, months after the alleged test-driving, he had allegedly seen his car in the initial stages of dismemberment on 19 May 1993 yet, again, he did not report the carnapping on that day nor on the next, but much later on 7 June 1993 or almost a month thereafter.
Cdpr

SEE said he believed and expected that the car would inevitably be returned to him. This is not only unsatisfactory but irreconcilable and contradictory with his imputations of carnapping. For if he believed that the vehicle would be returned to him for friendship's sake then he could not have at the same time also believed that this friend carnapped his car. Clearly, SEE's behavior immediately preceding, contemporaneous and subsequent to the alleged unlawful taking was definitely not the distraught conduct of a man whose car was carnapped. He was even able to register the averred stolen vehicle without sounding the alarm.

A fortiori, the cases of Roxas, Trinidad and de Vera cited by the Court of Appeals

have no application here as no unlawful deprivation or taking of SEE's possession of, enjoyment and benefit over the car occurred soon or long after his initial consent to the transfer thereof. Neither was there an act executed by TAN soon after the alleged test-driving that would constitute unlawful taking. These conclusions are buttressed by TAN's testimony, duly supported by documentary evidence, that SEE cooperated with him for the availment of a car loan with the BPI Family Bank in Makati, and that SEE personally attended to the inspection and appraisal of the subject car. The records, therefore, do not support the finding of carnapping. Noticeably, the Court of Appeals' erroneous contrary conclusions were heavily predicated on the arguments of the Office of the Solicitor General that TAN's failure to show a written deed of sale and to seek the release of his car loan

"were inconsistent with [the latter's] idea of sale." It then posed four questions which it concluded "certainly debilitated the pretensions of [TAN]," thus: 18
If there was really a deed of sale, why could not [TAN] present a copy thereof? Assuming arguendo that [SEE] got [TAN's] copy of the deed of sale, why did he not secure another copy from the notary public who notarized the same? Or, better still, why did he not present the notary public to testify on the fact of the sale? Why did [SEE] have to sell the subject car to [TAN] at P280,000.00 when the latter was admittedly indebted to the former to the tune of P800,000? If [TAN] really bought the subject car from private complainant, why did he have to return the same (car) to the latter on May 14, 1993?

From this line of reasoning, we easily deduce that the Court of Appeals simply equated the lack of a written deed of sale to SEE's lack of consent to TAN's taking of the car. But the mere absence of a written contract of sale in this case does not necessarily mean that SEE did not also consent to the taking nor that TAN's possession of the car was unlawful. The prosecution still has the onus probandi of showing that TAN's taking was unlawful. What took place in these proceedings was that the appellate court magnified the weakness of the defense and overlooked the prosecution's failure to discharge the onus probandi to show beyond reasonable doubt that the crime of carnapping was indeed perpetrated. In short, the Court of Appeals and the trial court simply believed and accepted the prosecution's tale. It ignored the basic legal precepts that conviction rests upon the strength of evidence of the prosecution and not on the weakness of the evidence for the defense; and assuming that the evidence of the accused is weak, the same is no reason to convict, especially, as in this case, where the case of the prosecution is not strong enough to sustain a conviction. 19 To reiterate, the burden of proof rests upon the prosecution, and unless the State succeeds in proving by overwhelming evidence the guilt of the accused, the constitutional presumption of innocence applies. A conviction in criminal cases must rest on nothing less than the moral certainty of guilt. 20 There is no quarrel in the conclusiveness of the findings of fact of the Court of Appeals, for upon this principle hinges the rule that the jurisdiction of the Supreme Court in cases brought before it from the Court of Appeals is limited to reviewing errors of law. However, it appears on record that the appellate court

overlooked, ignored, and disregarded some fact and circumstance of weight or significance that if considered would have altered the result. Cogent reasons therefore exist justifying the disregard of the findings of the appellate court, superseding the same with our own determinations and conclusions, and ordering the reversal of the questioned decision and resolution of said Court of Appeals. 21 WHEREFORE, in view of all the foregoing, the herein impugned 29 June 1998 decision and 6 October 1998 resolution of the Court of Appeals affirming the trial court's judgment convicting accused-appellant Alvin Tan of violation of the AntiCarnapping Act of 1972 are hereby REVERSED and SET ASIDE; a new judgment is entered ACQUITTING said accused-appellant on ground of reasonable doubt. Costs de officio. SO ORDERED.
LLphil

FIRST DIVISION
[G.R. No. 93833. September 28, 1995.] SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS and ESTER S. GARCIA, respondent.
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E. Voltaire Garcia for petitioner. Cesar V . Chavez for private respondent.

SYLLABUS 1.STATUTORY CONSTRUCTION; WHERE THE LANGUAGE OF A STATUTE IS CLEAR AND UNAMBIGUOUS; RULE. Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice. 2.CRIMINAL LAW; ANTI-WIRE TAPPING LAW (R.A. 4200); MAKES NO DISTINCTION AS TO WHETHER THE PARTY SOUGHT TO BE PENALIZED OUGHT

TO BE A PARTY OTHER THAN OR DIFFERENT FROM THOSE INVOLVED IN THE PRIVATE COMMUNICATION. Section 1 of R.A. 4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of Private Communication and Other Purposes," clearly and unequivocally makes it illegal for anyperson, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any." Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" under this provision of R.A. 4200. 3.ID.; ID.; NATURE OF CONVERSATION, IMMATERIAL TO A VIOLATION THEREOF. The nature of the conversation is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 4.ID.; ID.; "PRIVATE COMMUNICATION"; SCOPE. Petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the Latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting, as in a conversation, or signifies the "process by which meaning or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)." These definitions are broad enough to include verbal or nonverbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private

communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his Explanatory Note to the bill, quoted below: "It has been said that innocent people have nothing to fear from theirconversations being overheard. But this statement ignores the usual nature of conversations as well as the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversationsare often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature ofconversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals free from every unjustifiable intrusion by whatever means."
LexLibris

DECISION KAPUNAN, J :
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A civil case for damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1 In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good afternoon Ma'am. Defendant Ester S. Garcia (ESG)

Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa iyo. CHUCHI Kasi, naka duty ako noon. ESG Tapos iniwan no. (Sic) CHUCHI Hindi ma'am, pero ilan beses na nila akong binalikan, sabing ganoon. ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang, 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nagaapply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. CHUCHI Hindi Ma'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m. ESG

Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa

hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita). CHUCHI Itutuloy ko na Ma'am sana ang duty ko. ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko. ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. CHUCHI Kukuha kami ng exam noon. ESG Oo, pero hindi ka papasa.

CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo. ESG Kukunin ka kasi ako. CHUCHI Eh, di sana ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako. CHUCHI Mag-eexplain ako. ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko. ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon. CHUCHI Kasi M'am, binabalikan ako ng mga taga Union. ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na. CHUCHI Ina-ano ko ma'am na utang na loob. ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastanganan mo ako. CHUCHI Paano kita nilapastanganan? ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION The Undersigned Assistant City Fiscal Accuses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows: That on or about the 22nd day of February, 1988, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there wilfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person. Contrary to Law. Pasay City, Metro Manila, September 16, 1988. MARIANO M. CUNETA Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to the taping of a communication by a personother than a participant to the communication. 4 From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.
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On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that:
"[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari." 5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition. Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner argues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10 We disagree.
prLL

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurd or would lead to an injustice. 12 Section 1 of R.A. 4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides:
SECTION 1.It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any." Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200. A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx

Senator Taada:
The qualified only 'overhear.'

Senator Padilla:
So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under Section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside?

Senator Taada:
That is covered by the purview of this bill, Your Honor.

Senator Padilla:

Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings?

Senator Taada:
That is right. This is a complete ban on tape recorded

conversations taken without the authorization of all the parties. Senator Padilla:
Now, would that be reasonable, Your Honor?

Senator Taada:
I believe it is reasonable because it is not sporting to record the

observation of one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose;

Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded.

Senator Padilla:
This might reduce the utility of recorders.

Senator Taada:
Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that these are being recorded.

Senator Padilla:
Now, I can understand.

Senator Taada:
That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more.But if you are going

to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair.
xxx xxx xxx (Congressional Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno:

Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly.

Senator Taada:
Well, that particular aspect is not contemplated by the bill. It is

the communication between one person and another person not between a speaker and a public.
xxx xxx xxx (Congressional Record, Vol. III. No. 33, p. 626, March 12, 1964) xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish.
cdlex

Second, the nature of the conversation is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing,intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 14 Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)." 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any

doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his Explanatory Note to the bill quoted below:
"It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well as the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals free from every unjustifiable intrusion by whatever means." 17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those devises enumerated in Section 1 of the law nor was it similar to those "device(s) or arrangement(s)" enumerated therein," 19following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of taperecorders as among the acts punishable.
cdtai

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner. SO ORDERED.

Padilla, Davide, Jr. and Bellosillo, JJ., concur.

EN BANC
[G.R. No. 168338. February 15, 2008.] FRANCISCO CHAVEZ, petitioner, vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC),respondents. DECISION PUNO, C.J :
p

A.Precis
In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v.

COMELEC, 1 Burgos v. Chief of Staff, 2 Social Weather Stations v. COMELEC, 3and Bayan v. Executive Secretary Ermita. 4 When on its face, it is

clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified.

B.The Facts
1.The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping. 5 Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, "doctored" or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election

results in the President's favor. 6 It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. 7 2.On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers. 8 3.On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence. 9 4.On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations "found to have caused the spread, the playing and the printing of the contents of a tape"of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, "I [have] asked the NBI to conduct a tactical interrogation of all concerned." 10 5.On June 11, 2005, the NTC issued this press release:
11

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx xxx xxx Taking into consideration the country's unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides

that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that "all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition." The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.

6.On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: 12
NTC respects and will not hinder freedom of the press and the

right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order

constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views.
What is being asked by NTC is that the exercise of press freedom

[be] done responsibly.

KBP has program standards that KBP members will observe in the

treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. misrepresentation is made in the treatment of news or commentaries.

The KBP Codes also require that no false statement or willful

The supposed wiretapped tapes should be treated with sensitivity

and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same."

C.The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, "praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents." 13

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern, 14 petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the public's rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. 15

Respondents 16 denied that the acts transgress the Constitution, and questioned petitioner's legal standing to file the petition. Among the arguments they raised as to the validity of the "fair warning" issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTC's mandate to regulate the telecommunications industry. 17 It was also stressed that "most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP." 18

D.THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forward neither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press. It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions." 19 But as early as half a century ago, we have already held that where serious constitutional questions are involved, "the transcendental importance to the

public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure." 20 Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest, 21 in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society, 22 we therefore brush aside technicalities of procedure and take cognizance of this petition, 23 seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

E.RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 24
Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate

rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights, 25 were considered the necessary consequence of republican institutions and the complement of free speech. 26This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations. 27 In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. 28 This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom. 29 Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. 30 For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

E.1.ABSTRACTION OF FREE SPEECH

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. 31 What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, 32 in which it was held:
. . . At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. 33

Gonzales further explained that the vital need of a constitutional democracy for

freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change. 34 As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents

a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. 35 Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. 36 When atrophied, the right becomes meaningless. 37 The right belongs as well if not more to those who question, who do not conform, who differ. 38 The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view "induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 39 To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 40 The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans, 41 this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed.

E.2.DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, 42 nor is it an "unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. 43 The difference in treatment is expected because the relevant interests of one type of speech,e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. 44 We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to constitutional protection and may be penalized. 45

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. 46 A study of free speech jurisprudence whether here or abroad will reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. 47 Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; 48 (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests

observable in a given situation of type of situation; 49and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, "extremely serious and the degree of imminence extremely high." 50 As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger testto resolve free speech challenges. More recently, we have concluded that we have generally adhered to theclear and present danger test. 51

E.3.IN FOCUS: FREEDOM OF THE PRESS

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos: 52
The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials.

E.4.ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENTNEUTRAL AND CONTENT-BASED REGULATIONS

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1)

freedom from prior restraint; (2) freedom from punishment subsequent to publication; 53 (3) freedom of access to information; 54 and (4) freedom of circulation. 55 Considering that petitioner has argued that respondents' press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate.

Prior restraint refers to official governmental restrictions on the press or other

forms of expression in advance of actual publication or dissemination. 56 Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. 57 Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid, 58 and "any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows," 59 it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against. Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; 60 or (2) a contentbased restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. 61 The cast of the restriction determines the test by which the challenged act is assayed with. When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. 62 Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. 63 The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. 64

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome theclear and present danger rule will it pass constitutional muster, 65 with

the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the contentbased restraint will be struck down. 66 With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already on ground." 67 As formulated, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 68 The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. 69

Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest.70 A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. 71 The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. 72 Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. Acontent-based regulation, 73 however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. 74 Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are contentbased restrictions. The acts of respondents focused solely on but one object a specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not

merely provide regulations as to the time, place or manner of the dissemination of speech or expression.

E.5.Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents' argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media. The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection, 75 and U.S. Courts have excluded broadcast media from the application of the "strict scrutiny" standard that they would otherwise apply to content-based restrictions. 76 According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; 77 (b) its "pervasiveness" as a medium; and (c) its unique accessibility to children. 78Because cases involving broadcast media need not follow "precisely the same approach that [U.S. courts] have applied to other media," nor go "so far as to demand that such regulations serve 'compelling' government interests," 79 they are decided on whether the "governmental restriction" is narrowly tailored to further a substantial governmental interest," 80 or the intermediate test. As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show that as we have deviated with the American conception of the Bill of Rights 81 we likewise did not adopten masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.

Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process.

Second, regardless of the regulatory schemes that broadcast media is subjected

to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans, 82 wherein it was held that "[a]ll forms of media, whether print or broadcast, are entitled to

the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule . . ." 83 Dans was a case filed to compel the reopening of a radio station which had been
summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus: 84
xxx xxx xxx (3)All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance.

(5)The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6)The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7)Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that "the test for limitations on freedom of expression continues to be the clear and present danger rule," for all forms of media, whether print or broadcast. Indeed, a close reading of the abovequoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as "unprotected speech" (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the

limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was "somewhat lesser in scope than the freedom accorded to newspaper and print media," it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. 85 In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak, 86 that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media. 87Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies, 88 the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown. . . . . It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.

More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press. 89 This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC, 90which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral. 91 And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC 92 treated a restriction

imposed on a broadcast media as a reasonable condition for the grant of the media's franchise, without going into which test would apply. That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm. 93

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expression in terms of diversity comes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. 94 The emergence of digital technology which has led to the convergence of broadcasting, telecommunications and the computer industry has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment. 95 Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, 96 and the rationales used to support broadcast regulation apply equally to the Internet. 97 Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. 98

F.The Case At Bar

Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that thegreat evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents' evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a "complete" version and the other, an "altered" version. Thirdly, the evidence of the respondents on the who's and the how's of the wiretapping act is ambivalent, especially considering the tape's different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the antiwiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person's private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status

accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test,the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an "act" does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined

the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation. The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press SO ORDERED.

Ynares-Santiago and Reyes, JJ., concur. Quisumbing, J., concurs in the result and joins in the separate concurring opinion
of J. Carpio.

Sandoval-Gutierrez, J., please see my separate concurring opinion. Carpio, J., see separate concurring opinion. Austria-Martinez, J., also joins in the separate opinion of J. Carpio. Corona, J., joins the dissent of Mr. Justice Nachura. Carpio-Morales, J., joins in the separate concurring opinion of J. Carpio. Azcuna, J., concurs in a separate opinion. Tinga, J., please see separate opinion (dissenting and concurring).

Chico-Nazario, J., please see my separate dissenting opinion. Velasco, Jr., J., please see separate concurring and dissenting opinion. Nachura, J., please see my dissent. Leonardo-de Castro, J., joins the dissent of Justice Nazario and Justice Nachura.

Separate Opinions
SANDOVAL-GUTIERREZ, J., concurring:
"Where they have burned books, they will end in burning human beings."

These are the prophetic words of the German Author Heinrich Heine when the Nazis fed to the flames the books written by Jewish authors. True enough, the mass extermination of Jews followed a few years later. What was first a severe form of book censorship ended up as genocide. Today, I vote to grant the writs of certiorari and prohibition mindful of Heine's prophecy. The issuance of the Press Release by the National Telecommunications Commission (NTC) is a form of censorship. To allow the broadcast media to be burdened by it is the first misstep leading to the strangling of our citizens. We must strike this possibility while we still have a voice. I fully concur with the well-written ponencia of Mr. Chief Justice Reynato S. Puno and that of Mr. Justice Antonio T. Carpio. The Universal Declaration of Human Rights guarantees that "everyone has the right to freedom of opinion and expression." Accordingly, this right "includes the freedom to hold opinions without interference and impart information and ideas through any media regardless of frontiers." 1 At the same time, our Constitution mandates that "no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances." These guarantees are testaments to the value that humanity accords to the above-mentioned freedoms commonly summed up as freedom of expression. The justifications for this high regard are specifically identified by

Justice Mclachlin of the Canadian Supreme Court in Her Majesty The Queen v. Keegstra, 2 to wit: (1) Freedom of expression promotes the free flow of ideas essential to political democracy and democratic institutions, and limits the ability of the State to subvert other rights and freedoms; (2) it promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-actualization of speakers and listeners; and (4) it is justified by the dangers for good government of allowing its suppression. These are the same justifications why censorship is anathema to freedom of expression. Censorship is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. 3 Censorship may come in the form of prior restraint or subsequent punishment. Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. 4 Its most blatant form is a system of licensing administered by an executive officer. 5 Similar to this is judicial prior restraint which takes the form of an injunction against publication. 6 And equally objectionable as prior restraint is the imposition of license taxes that renders publication or advertising more burdensome. 7 On the other hand, subsequent punishment is the imposition of liability to the individual exercising his freedom. It may be in any form, such as penal, civil or administrative penalty.

I The Issuance of the Press Release Constitutes Censorship

In the case at bar, the first issue is whether the Press Release of the NTC constitutes censorship. Reference to its pertinent portions is therefore imperative. Thus:
Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate

investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be a just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to said companies. xxx xxx xxx The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.

The threat of suspension, revocation and/or cancellation of the licenses or authorization hurled against radio and television stations should they air the Garci Tape is definitely a form of prior restraint. The license or authorization is the life of every media station. If withheld from them, their very existence is lost. Surely, no threat could be more discouraging to them than the suspension or revocation of their licenses. In Far Eastern Broadcasting v. Dans, 8 while the need for licensing was rightly defended, the defense was for the purpose, not of regulation of broadcast content, but for the proper allocation of airwaves. In the present case, what the NTC intends to regulate are the contents of the Garci Tapes the alleged taped conversation involving the President of the Philippines and a Commissioner of the Commission on Election. The reason given is that it is a "false information or willful misrepresentation." As aptly stated by Mr. Justice Antonio T. Carpio that "the NTC action in restraining the airing of theGarci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes." History teaches us that licensing has been one of the most potent tools of censorship. This powerful bureaucratic system of censorship in Medieval Europe was the target of John Milton's speech Areopagita to the Parliament of England in 1644. 9 Under the Licensing Act of 1643, all printing presses and printers were licensed and nothing could be published without the prior approval of the State or the Church Authorities. Milton vigorously opposed it on the ground of freedom of the press. His strong advocacy led to its collapse in 1695. In the U.S., the first encounter with a law imposing a prior restraint is in Near v. Minnesota. 10 Here, the majority voided the law authorizing the permanent enjoining of future violations by any newspaper or periodical if found to have published or circulated an "obscene, lewd and lascivious" or "malicious, scandalous and defamatory" issue. While the dissenters maintained that the injunction constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of publication without

advance approval of an executive official, the majority deemed the difference of no consequence, since in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge. In other similar cases, the doctrine of prior restraint was frowned upon by the U.S. Court as it struck down loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them, and as it voided other restrictions on First Amendment rights. 11 Then there came the doctrine that prior licensing or permit systems were held to be constitutionally valid so long as the discretion of the issuing official is limited to questions of times, places and manners. 12 And in New York Times Company v. United States, 13 the same Court, applying the doctrine of prior restraint from Near, considered the claims that the publication of the Pentagon Papers concerning the Vietnam War would interfere with foreign policy and prolong the war too speculative. It held that such claim could not overcome the strong presumption against prior restraints. Clearly, content-based prior restraint is highly abhorred in every jurisdiction.

Another objectionable portion of the NTC's Press Release is the warning that it will not hesitate "to apply with full force the provisions of the Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators. This is a threat of a subsequent punishment, an equally abhorred form of censorship. This should not also be countenanced. It must be stressed that the evils to be prevented are not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. 14 There is logic in the proposition that the liberty of the press will be rendered a "mockery and a delusion" if, while every man is at liberty to publish what he pleases, the public authorities might nevertheless punish him for harmless publications. In this regard, the fear of subsequent punishment has the same effect as that of prior restraint. It being settled that the NTC's Press Release constitutes censorship of broadcast media, the next issue is whether such censorship is justified.

II

The Issuance of the Press Release Constitutes an Unjustified Form of Censorship

Settled is the doctrine that any system of prior restraint of expression comes to this Court bearing a presumption against its constitutional validity. 15 The Government thus carries a heavy burden of showing justification for the enforcement of such a restraint. 16 Various tests have been made to fix a standard by which to determine what degree of evil is sufficiently substantial to justify a resort to abridgment of the freedom of expression as a means of protection and how clear and imminent and likely the danger is. Among these tests are the Clear and Present Danger,

Balancing, Dangerous Tendency, Vagueness, Overbreadth, and Least Restrictive Means.

Philippine jurisprudence shows that we have generally adhered to the clear and present danger test. Chief Justice Puno, in his ponencia, has concluded that the Government has not hurdled this test. He cited four (4) reasons to which I fully concur. The justification advanced by the NTC in issuing the Press Release is that "the taped Conversations have not been duly authenticated nor could it be said at this time that the tape contains an accurate and truthful representation of what was recorded therein" and that "its continuous airing or broadcast is a continuing violation of the Anti-Wiretapping Law." To prevent the airing of the Garci Tapes on the premise that their contents may or may not be true is not a valid reason for its suppression. In New York Times v. Sullivan, 17 Justice William Brennan, Jr. states that the authoritative interpretation of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth whether administered by judges, jurists, or administrative officials and especially not one that puts the burden of proving truth on the speaker. He stressed that "the constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and belief which are offered." Moreover, the fact that the tapes were obtained through violation of the Anti-Wiretapping Law does not make the broadcast media privy to the crime. It must be stressed that it was a government official who initially released the Garci Tapes, not the media.

In view of the presence of various competing interests, I believe the present case must also be calibrated using thebalancing test. In American Communication Association v. Douds, 18 it is held that "when a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demand the greater protection under the circumstances presented. In the present case, perched at the one hand of the scale is the government's interest to maintain public order, while on the other hand is the interest of the public to know the truth about the last national election and to be fully informed. Which of these interests should be advanced? I believe it should be that of the people. The right of the people to know matters pertaining to the integrity of the election process is of paramount importance. It cannot be sideswiped by the mere speculation that a public disturbance will ensue.Election is a sacred instrument of democracy. Through it, we choose the people who will govern us. We entrust to them our businesses, our welfare, our children, our lives. Certainly, each one of us is entitled to know how it was conducted. What could be more disheartening than to learn that there exists a tape containing conversations that compromised the integrity of the election process. The doubt will forever hang over our heads, doubting whether those who sit in government are legitimate officials. In matters such as these, leaving the people in darkness is not an alternative course. People ought to know the truth. Yes, the airing of the Garci Tapes may have serious impact, but this is not a valid basis for suppressing it. As Justice Douglas explained in his concurring opinion in the New York Times, "the dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. A debate of large proportions goes in the nation over our posture in Vietnam. Open debate and discussion of public issues are vital to our national health." More than ever, now is the time to uphold the right of the Filipinos to information on matters of public concern. As Chief Justice Hughes observed: "The administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and liberty by criminal alliances and official neglect, emphasize the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any less necessary the

immunity of the press from previous restraint in dealing with official misconduct." 19 Open discussions of our political leaders, as well as their actions, are essential for us to make informed judgments. Through these, we can influence our government's actions and policies. Indeed, no government can be responsive to its citizens who have refrained from voicing their discontent because of fear of retribution.

III A free press is an indispensable component of a democratic and free society.

Burke once called the Press the Fourth Estate in the Parliament. This is because its ability to influence public opinion made it an important source in the governance of a nation. It is considered one of the foundations of a democratic society. One sign of its importance is that when a tyrant takes over a country, his first act is to muzzle the press.Courts should therefore be wary in resolving cases that has implication on the freedom of the press to the end that the freedom will never be curtailed absent a recognized and valid justification. In fine let it be said that the struggle for freedom of expression is as ancient as the history of censorship. From the ancient time when Socrates was poisoned for his unorthodox views to the more recent Martial Law Regime in our country, the lesson learned is that censorship is the biggest obstacle to human progress. Let us not repeat our sad history. Let us not be victims again now and in the future. WHEREFORE, I vote to CONCUR with the majority opinion. CARPIO, J., concurring: The Case This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June 2005, warning radio and television stations against airing taped conversations allegedly between President Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio Garcillano (Garcillano) 1 under pain of suspension or revocation of their airwave licenses. The Facts

On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the 2004 presidential elections. 2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed "rigging" the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press conference in Malacaang Palace, where he played before the presidential press corps two compact disc recordings of conversations between a woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents of the second compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano. However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not President Arroyo's after all. 3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes. 4 Respondent Gonzalez ordered the National Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-Wiretapping Law. On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to them. 5 On 14 June 2005, NTC officers met with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing commitment to press freedom. 6

On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts, issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the following grounds: (1) respondents' conduct violated freedom of expression and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci Tapes. In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to litigate and (2) the petition fails to meet the case or controversy requirement in constitutional adjudication. On the merits, respondents claim that (1) the NTC's press release of 11 June 2005 is a mere

"fair warning," not censorship, cautioning radio and television networks on the lack of authentication of the Garci Tapes and of the consequences of airing false or fraudulent material, and (2) the NTC did not act ultra vires in issuing the warning to radio and television stations. In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a citizen asserting the enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner also contests respondents' claim that the NTC press release of 11 June 2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping Law, making it a "cleverly disguised . . . gag order." ISSUE The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior restraint on freedom of expression. I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. 1.Standing to File Petition Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the right to bring suit to question the constitutionality of a government action in violation of freedom of expression, whether or not the government action is directed at such citizen. The government action may chill into silence those to whom the action is directed. Any citizen must be allowed to take up the cudgels for those who have been cowed into inaction because freedom of expression is a vital public right that must be defended by everyone and anyone. Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is oftranscendental importance that must be defended by every patriotic citizen at the earliest opportunity. We have held that any concerned citizen has standing to raise an issue of transcendental importance to the nation, 7 and petitioner in this present petition raises such issue. 2.Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition 8 to the exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a free and democratic society must zealously safeguard freedom of expression. Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Freedom of expression crystallizes important public policy issues, and allows citizens to participate in the discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead. Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free expression for the ideas we hate. 9 Indeed, the function of freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.10

Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression:
No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression

shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity. The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography, 11 false or misleading advertisement, 12 advocacy of imminent lawless action, 13 and danger to national security. 14 All other expression is not subject to prior restraint. As stated inTurner Broadcasting System v. Federal Communication Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals." 15 Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution. Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression. Courts will subject to strict scrutiny contentbased restraint. If the content-based prior restraint is directed at protected expression, courts will strike down the restraint as unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the recognized categories of unprotected expression. If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places 16 without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny. 17 An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. 18 Courts will uphold time, place or manner restraints if

they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression. 19 In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus, submission of movies or pre-taped television programs to a government review board is constitutional only if the review is for classification and not for censoring any part of the content of the submitted materials. 20 However, failure to submit such materials to the review board may be penalized without regard to the content of the materials. 21 The review board has no power to reject the airing of the submitted materials. The review board's power is only to classify the materials, whether for general patronage, for adults only, or for some other classification. The power to classify expressions applies only to movies and pre-taped television programs 22 but not to live television programs. Any classification of live television programs necessarily entails prior restraint on expression. Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based 23 since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October 2007. 24

Only unprotected expression may be subject to prior restraint. However,

any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. 25

Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. 26 The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn only to the extent necessary to protect or attain the compelling State interest. Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also deters

expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment, 27 either civilly or criminally. Thus, the publication of election surveys cannot be subject to prior restraint, 28 but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2) (b) (3) of the Revised Penal Code punishing "shows which offend any race or religion" cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such offensive shows. 29 Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or "hate speech" against a religious minority is not subject to subsequent punishment in this jurisdiction, 30 such expression cannot be subject to prior restraint. If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The legislature must punish the unprotected expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a prior restraint on such expression. The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression pornography, 31 advocacy of imminent lawless action, and danger to national security is the clear and present danger test. 32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent. 33 Prior restraint on unprotected expression takes many forms it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits. 34 The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies.

3.Government Action in the Present Case The government action in the present case is a warning by the NTC that the

airing or broadcasting of the Garci Tapes by radio and television stations is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio and television stations. The NTC warning,

embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations." Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or willful misrepresentation. Specifically, the NTC press release contains the following categorical warning:
Taking into consideration the country's unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the AntiWiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension,

revocation and/or cancellation of the licenses or authorizations issued to the said companies.(Boldfacing and underscoring supplied)

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a right and duty to prevent. The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC press release, and even up to now, the parties to the conversations in the Garci Tapes have not complained that the wiretapping was without their consent, an essential element for violation of the AntiWiretapping Law. 35 It was even the Office of the President, through the Press Secretary, that played and released to media the Garci Tapes containing the alleged "spliced" conversation between President Arroyo and Commissioner Garcillano. There is also the issue of whether a wirelesscellular phone conversation is covered by the Anti-Wiretapping Law. Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations. 36 The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false information and/or willful misrepresentation." However, the NTC does not claim that such possible false information or willful misrepresentation constitutes misleading commercial advertisement. In the United States, false or deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint. Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims to the public. 37 There is, however, no claim here by respondents that the Garci Tapes constitute false or misleading commercial advertisement.

The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only "after a prosecution or appropriate investigation" can it be established that the Garci Tapes constitute "false information and/or willful misrepresentation." Clearly, the NTC admits that it

does not even know if the Garci Tapes contain false information or willful misrepresentation.
4.Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes. The NTC's claim that the Garci Tapes might contain "false information and/or willful misrepresentation," and thus should not be publicly aired, is an admission that the restraint is content-based. 5.Nature of Expression in the Present Case The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. Public discussion on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, 38 and among different kinds of political expression, the subject of fair and honest elections would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open.

The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the courts

determine that the subject matter of a wiretapping, illegal or not, endangers the security of the State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim

here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the tapes would endanger the security of the State. 39 The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression. 40 The only exceptions to this rule are the four recognized categories of unprotected expression. However, the content of the Garci Tapes does not fall under any of these categories of unprotected expression. The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the people's right to information on matters of public concern. 41The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law. The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs significantly from subsequent punishment of protected expression. While there can be no prior restraint on protected expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the AntiWiretapping Law. 6.Only the Courts May Impose Content-Based Prior Restraint The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any content-based censorship power over radio and television stations. In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of

bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint. Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception. As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter wattage, and location of radio and television stations, but not the content of the broadcasts. Such content-neutral prior restraint may make operating radio and television stations more costly. However, such content-neutral restraint does not restrict the content of the broadcast. 7.Government Failed to Overcome Presumption of Invalidity Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior restraint on the airing is presumed unconstitutional. The Government bears a heavy burden to prove that the NTC action is constitutional. The Government has failed to meet this burden. In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio and television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes. Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the violation is committed. Respondents have not explained why there is a need in the present case to impose prior restraint just to prevent a possible future violation of the AntiWiretapping Law. Respondents have not explained how the violation of the AntiWiretapping Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. To allow such restraint is to allow prior restraint on all future broadcasts that may possibly violate any of the

existing criminal statutes. That would be the dawn of sweeping and endless censorship on broadcast media. 8.The NTC Warning is a Classic Form of Prior Restraint The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is thus real and potent. In Burgos v. Chief of Staff, 42 this Court ruled that the closure of the We Forum newspapers under a general warrant "is in the nature of a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law." The NTC warning to radio and television stations not to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect a prior restraint on constitutionally protected expression. In the recent case of David v. Macapagal-Arroyo, 43 this Court declared unconstitutional government threats to close down mass media establishments that refused to comply with government prescribed "standards" on news reporting following the declaration of a State of National Emergency by President Arroyo on 24 February 2006. The Court described these threats in this manner:
Thereafter, a wave of warning[s] came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong presence,' to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened. 44 (Emphasis supplied)

The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court ruled that "the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL." 45 The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or cancellation of licenses to publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC warning is a classic form of prior restraint on protected expression, which in the words of Near v. Minnesota is "the essence of censorship." 46 Long before the American Declaration of Independence in 1776, William Blackstone had already written in his Commentaries on the Law of England, "The liberty of the press . . . consists in laying no previous restraints upon publication . . .." 47 Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel permits remains real and effective, for without airwaves or frequencies, radio and television stations will fall silent and die. The NTC press release does not seek to advance a legitimate regulatory objective, but to suppress through coercion information on a matter of vital public concern.

9.Conclusion In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be no content-based prior restraint on protected expression. This rule has no exception. I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. AZCUNA, J., concurring: I vote to GRANT the petition on the ground that the challenged NTC and DOJ warnings violate Sec. 10, Art XVI of the Constitution which states:
Sec. 10.The State shall be provide the policy environment for the full development of Filipino capability and the emergency of communication structures suitable to the needs and aspirations of the nations and the balanced flow of information into, out of, and across the country, in

accordance with a policy that respects the freedom of speech and of the press.

This provision was precisely crafted to meet the needs and opportunities of the emerging new pathways of communications, from radio and tv broadcast to the flow of digital informations via cables, satellites and the internet. The purpose of this new statement of directed State policy is to hold the State responsible for a policy environment that provides for (1) the full development of Filipino capability, (2) the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information, and (3) respect for the freedom of speech and of the press. The regulatory warnings involved in this case work against a balanced flow of information in our communication structures and do so without respecting freedom of speech by casting a chilling effect on the media. This is definitely not the policy environment contemplated by the Constitution. CHICO-NAZARIO, J., dissenting: With all due respect, I vote to dismiss the present Petition for the simple reason that the assailed press statements made by the National Telecommunications Commission (NTC) and the Secretary of Justice Raul Gonzales (Gonzales) do not constitute prior restraint that impair freedom of speech. There being no restraint on free speech, then there is even no need to apply any of the tests, i.e., the dangerous tendency doctrine, the balancing of interests test, and the clear and present danger rule, to determine whether such restraint is valid. The assailed press statements must be understood and interpreted in the proper perspective. The statements must be read in their entirety, and interpreted in the context in which they were made. A scrutiny of the "fair warning" issued by the NTC on 11 June 2005 reveals that it is nothing more than that, a fair warning, calling for sobriety, care, and circumspection in the news reporting and current affairs coverage by radio and television stations. It reminded the owners and operators of the radio stations and television networks of the provisions in NTC Memorandum Circulars No. 1112-85 and 22-89, which are also stated in the authorizations and permits granted to them by the government, that they shall not use their stations for the broadcasting or telecasting of false information or willful misrepresentation. It must be emphasized that the NTC is merely reiterating the very same prohibitionalready contained in its previous circulars, and even in the

authorizations and permits of radio and television stations. The reason thus escapes me as to why said prohibition, when it was stated in the NTC Memorandum Circulars and in the authorizations and permits, was valid and acceptable, but when it was reiterated in a mere press statementreleased by the NTC, had become a violation of the Constitution as a prior restraint on free speech. In the midst of the media frenzy that surrounded the Garci tapes, the NTC, as the administrative body tasked with the regulation of radio and television broadcasting companies, cautioned against the airing of the unauthenticated tapes. The warning of the NTC was expressed in the following manner, "[i]f it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies." According to the foregoing sentence, before any penalty could be imposed on a radio or television company for airing the Garci tapes, the tapes must have been established to be false and fraudulent after prosecution and investigation. The warning is nothing new for it only verbalizes and applies to the particular situation at hand an existing prohibition against spreading false information or willful misrepresentation by broadcast companies. In fact, even without the contested "fair warning" issued by the NTC, broadcast companies could still face penalties if, after investigation and prosecution, the Garci tapes are established to be false and fraudulent, and the airing thereof was done to purposely spread false information or misrepresentation, in violation of the prohibition stated in the companies' authorizations and permits, as well as the pertinent NTC Memorandum Circulars. Moreover, we should not lose sight of the fact that just three days after its issuance of its "fair warning," or on 14 June 2005, the NTC again released another press statement, this time, jointly made with the Kapisanan ng Broadcasters sa Pilipinas (KBP), to the effect that:
JOINT PRESS STATEMENT: NTC AND KBP CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW, AND THE RADIO AND TELEVISION CODES. NTC RESPECTS AND WILL NOT HINDER FREEDOM OF THE PRESS AND THE RIGHT TO INFORMATION ON MATTERS OF PUBLIC

CONCERN. KBP & ITS MEMBERS HAVE ALWAYS BEEN COMMITTED TO THE EXERCISE (sic) PRESS FREEDOM WITH HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT OF FAIRNESS AND HONESTY. NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF PRESS FREEDOM OR CENSORSHIP. NTC FURTHER DENIES AND DOES NOT INTEND TO LIMIT OR RESTRICT THE INTERVIEW OF MEMBERS OF THE OPPOSITION OR FREE EXPRESSION OF VIEWS. WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS FREEDOM IS DONE RESPONSIBLY. KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL OBSERVE IN THE TREATMENT OF NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE INCLUDE VERIFICATION OF SOURCES, NON-AIRING OF MATERIALS THAT WOULD CONSTITUTE INCITING TO SEDITION AND/OR REBELLION. THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR WILLFUL MISREPRESENTATION IS MADE IN THE TREATMENT OF NEWS OR COMMENTARIES. THE SUPPOSED WIRETAPPED (sic) TAPES SHOULD BE TREATED WITH SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO THE PROCESSES BEING UNDERTAKEN TO VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL CONTENT OF THE SAME.

The relevance of the afore-quoted press statement cannot be downplayed. It already categorically settles what NTC meant and how the KBP understood the 11 June 2005 NTC press statement. We cannot insist to give a different and more sinister interpretation to the first press statement, when the second press statement had already particularly defined the context by which it should be read. Neither should we give much merit to the statements made by Secretary Gonzales to the media that he had already instructed the National Bureau of Investigation (NBI) to monitor all radio stations and television networks for possible violations of the Anti-Wiretapping Law. Secretary Gonzales is one of media's favorite political personalities, hounded by reporters, and featured almost daily in newspapers, radios, and televisions, for his "quotable quotes,"

some of which appeared to have been uttered spontaneously and flippantly. There was no showing that Secretary Gonzales had actually and officially ordered the NBI to conduct said monitoring of radio and television broadcasts, and that the NBI acted in accordance with said order. Which leads me to my next point. We should be judicious in giving too much weight and credence to press statements. I believe that it would be a dangerous precedent to rule that press statements should be deemed an official act of the administrative agency or public official concerned. Press statements, in general, can be easily manufactured, prone to alteration or misinterpretation as they are being reported by the media, and may, during some instances, have to be made on the spot without giving the source much time to discern the ramifications of his statements. Hence, they cannot be given the same weight and binding effect of official acts in the form of, say, memorandum orders or circulars. Even if we assume arguendo that the press statements are official issuances of the NTC and Secretary Gonzales, then the petitioner alleging their unconstitutionality must bear the burden of proving first that the challenged press statements did indeed constitute prior restraint, before the presumption of invalidity of any system of prior restraint on free speech could arise. Until and unless the petitioner satisfactorily discharges the said burden of proof, then the press statements must similarly enjoy the presumption of validity and constitutionality accorded to statutes, having been issued by officials of the executive branch, a co-equal. The NTC and Secretary Gonzales must likewise be accorded the presumption that they issued the questioned press statements in the regular performance of their duties as the regulatory body for the broadcasting industry and the head of the principal law agency of the government, respectively. Significantly also, please allow me to observe that the purported chilling effect of the assailed press statements was belied by the fact that the owners and operators of radio stations and television networks, who were supposed to feel most threatened by the same, did not find it necessary to go to court. They should have been the ones to have felt and attested to the purported chilling effect of said press statements. Their silence in all this speaks for itself.

In view of the foregoing, I vote for the denial of the present petition. NACHURA, J., dissenting:

I respectfully register my dissent to the majority opinion penned by the esteemed Chief Justice. The assailed press releases and statements do not constitute a prior restraint on free speech. It was not improper for the NTC to warn the broadcast media that the airing of taped materials, if subsequently shown to be false, would be a violation of law and of the terms of their certificate of authority, and could lead, after appropriate investigation, to the cancellation or revocation of their license.

The Facts
This case arose from events that transpired a year after the 2004 national and local elections, a period marked by disquiet and unrest; events that rocked the very foundations of the present administration. To recall, on June 5, 2005, Press Secretary Ignacio Bunye conveyed to reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a bugged mobile phone conversation allegedly between the President of the Republic of the Philippines and a high-ranking official of the Commission on Elections (COMELEC). 1 The following day, June 6, 2005, Secretary Bunye presented and played two compact discs (CD's) to the Malacaan Press Corps, and explained that the first contained the wiretap, while the second, the spliced, doctored, and altered version which would suggest that during the 2004 National and Local Elections the President instructed the COMELEC official to manipulate in her favor the election results. 2 Atty. Alan Paguia, former counsel of then President Joseph E. Estrada, subsequently released, on June 7, 2005, the alleged authentic tape recordings of the wiretap. Included, among others, in the tapes were purported conversations of the President, First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Virgilio Garcillano, and the late Senator Robert Barbers. 3 On June 8, 2005, respondent Secretary of the Department of Justice (DOJ), Raul Gonzalez, informed news reporters that persons in possession of copies of the wiretap and media outlets broadcasting, or publishing the contents thereof, could be held liable under the Anti-Wiretapping Act [Republic Act No. 4200]. 4 He further told newsmen, on the following day, that he had already instructed the National Bureau of Investigation (NBI) to monitor all radio stations and television networks for possible violations of the said law. 5

Then, on June 10, 2005, former NBI Deputy Director Samuel Ong presented to the media the alleged master tape recordings of the wiretap or the so-called "mother of all tapes," and disclosed that their contents were wiretapped by T/Sgt. Vidal Doble of the Intelligence Service of the Armed Forces of the Philippines (ISAFP). Ong then called for the resignation of the President. 6 On June 11, 2005, after several news reports, respondent National Telecommunications Commission (NTC) issued the following press release:
Contact: Office of the Commissioner National Telecommunications Commission BIR Road, East Triangle, Diliman, Quezon City Tel. 924-4048/924-4037 E-mail: commissioner@ntc.gov.ph NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT NTC CIRCULARS ON PROGRAM STANDARDS In view of the unusual situation the country is in today, The (sic) National Telecommunications Commission (NTC) calls for sobriety among the operators and management of all radio and television stations in the country and reminds them, especially all broadcasters, to be careful and circumspect in the handling of news reportage, coverages of current affairs and discussion of public issues, by strictly adhering to the pertinent laws of the country, the current program standards embodied in radio and television codes and the existing circulars of the NTC. The NTC said that now, more than ever, the profession of broadcasting demands a high sense of responsibility and discerning judgment of fairness and honesty at all times among broadcasters amidst all these rumors of unrest, destabilization attempts and controversies surrounding the alleged wiretapping of President GMA (sic) telephone conversations. Taking into consideration the country's unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio

stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the Commission reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular No. 111-12-85 explicitly states, among others, that "all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast and/or telecast if the tendency thereof" is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated in NTC Memorandum Circular No. 22-89 which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The Commission will not hesitate, after observing the requirements of due process, to apply with full force the provisions of the said Circulars

and their accompanying sanctions on erring radio and television stations and their owners/operators. 7

On June 14, 2005, respondent NTC held a dialogue with the Officers and Board of Directors of the Kapisanan ng mga Broadcasters sa Pilipinas (KBP) to clarify the said press release. As a result, the NTC and the KBP issued a joint press release which reads: 8
JOINT PRESS STATEMENT: NTC AND KBP CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW, AND THE RADIO AND TELEVISION CODES. NTC RESPECTS AND WILL NOT HINDER FREEDOM OF THE PRESS AND THE RIGHT TO INFORMATION ON MATTERS OF PUBLIC CONCERN. KBP & ITS MEMBERS HAVE ALWAYS BEEN COMMITTED TO THE EXERCISE (SIC) PRESS FREEDOM WITH HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT OF FAIRNESS AND HONESTY. NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF PRESS FREEDOM OR CENSORSHIP. NTC FURTHER DENIES AND DOES NOT INTEND TO LIMIT OR RESTRICT THE INTERVIEW OF MEMBERS OF THE OPPOSITION OR FREE EXPRESSION OF VIEWS. WHAT IS BEING ASKED BY NTC IS THAT THE EXERCISE OF PRESS FREEDOM IS DONE RESPONSIBLY. KBP HAS PROGRAM STANDARDS THAT KBP MEMBERS WILL OBSERVE IN THE TREATMENT OF NEWS AND PUBLIC AFFAIRS PROGRAMS. THESE INCLUDE VERIFICATION OF SOURCES, NON-AIRING OF MATERIALS THAT WOULD CONSTITUTE INCITING TO SEDITION AND/OR REBELLION. THE KBP CODES ALSO REQUIRE THAT NO FALSE STATEMENT OR WILLFUL MISREPRESENTATION IS MADE IN THE TREATMENT OF NEWS OR COMMENTARIES. THE SUPPOSED WIRETAPPED (SIC) TAPES SHOULD BE TREATED WITH SENSITIVITY AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO THE PROCESSES BEING UNDERTAKEN TO VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL CONTENT OF THE SAME. 9

On June 21, 2005, petitioner Francisco Chavez, a Filipino citizen, taxpayer and law practitioner, instituted the instant Rule 65 Petition 10 for certiorari and prohibition with a prayer for the issuance of a temporary restraining order on the following grounds:
RESPONDENTS COMMITTED BLATANT VIOLATIONS OF THE FREEDOM OF EXPRESSION AND OF THE PRESS AND THE RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN ENSHRINED IN ARTICLE III, SECTIONS 4 AND 7 OF THE 1987 CONSTITUTION. RESPONDENT NTC ACTED BEYOND ITS POWERS AS A REGULATORY BODY UNDER EXECUTIVE ORDER 546 AND REPUBLIC ACT NO. 7925 WHEN IT WARNED RADIO BROADCAST AND TELEVISION STATIONS WITH DIRE CONSEQUENCES IF THEY CONTINUED TO AIR CONTENTS OF THE CONTROVERSIAL TAPES OF THE PRESIDENT'S CONVERSATION. 11

In their Comment 12 to the petition, the respondents, through the Office of the Solicitor General (OSG), countered that: (1) the petitioner had no legal standing to file, and had no clear case or cause of action to support, the instant petition as to warrant judicial review; 13 (2) the respondents did not violate petitioner's and/or the public's fundamental liberties of speech, of expression and of the press, and their right to information on matters of public concern; 14 and (3) the respondent NTC did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction when it "fairly warned" radio and television owners/operators to observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. 15

The Issues
For the resolution, therefore, of the Court are the following issues: (1) whether or not petitioner has locus standi; (2) whether or not there exists an actual case or controversy ripe for judicial review; and (3) whether or not the respondents gravely abused their discretion to warrant remedial action from the Court.

On the Procedural Issues Petitioner has locus standi

Petitioner has standing to file the instant petition. The test is whether the party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which

the court so largely depends for illumination of difficult constitutional questions. 16 When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.17 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. 18 In the case at bench, petitioner Chavez justifies his standing by alleging that the petition involves the enforcement of the constitutional rights of freedom of expression and of the press, and to information on matters of public concern. 19 As a citizen of the Republic and as a taxpayer, petitioner has already satisfied the requisite personal stake in the outcome of the controversy. In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has shown in a number of prior cases, climaxing in David v. Macapagal-Arroyo. 20

The main issues have been mooted, but the case should nonetheless be resolved by the Court
The exercise by this Court of the power of judicial inquiry is limited to the determination of actual cases and controversies. 21 An actual case or controversy means an existing conflict that is appropriate or ripe for judicial determination, one that is not conjectural or anticipatory, otherwise the decision of the court will amount to an advisory opinion. The power does not extend to hypothetical questions since any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. 22 Neither will the Court determine a moot question in a case in which no practical relief can be granted. Indeed, it is unnecessary to indulge in academic discussion of a case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in the nature of things, cannot be enforced. 23 In the instant case, it is readily observable that the subsequent joint statement of the respondent NTC and the Officers and Board of Directors of the KBP after their June 14, 2005 dialogue not only substantially diminished 24 but, in fact, obliterated the effects of the earlier press warnings, thus rendering the case moot and academic. Notably, the joint press statement acknowledged that "NTC

did not issue any memorandum circular or order constituting a restraint of press freedom or censorship."

A case becomes moot when its purpose has become stale.

25

Be that as it may, the Court should discuss and resolve the fundamental issues raised herein, in observance of the rule that courts shall decide a question otherwise moot and academic if it is capable of repetition yet evasive of review. 26

The Dissent The assailed press statement does not infringe on the constitutional right to free expression
Petitioner assails the constitutionality of respondents' press release and statements warning radio stations and television networks of the possible cancellation of their licenses and of potential criminal prosecution that they may face should they broadcast or publish the contents of the tapes. Petitioner contends that the assailed press release and statements infringe on the freedom of expression and of the press. I do not agree, for the following reasons:

1.The issuance of the press release was a valid exercise of the NTC's regulatory authority over broadcast media.
Admittedly, freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. But it is also a settled principle, growing out of the nature of well-ordered civil societies that the exercise of the right is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the rights of the community or society. 27 Consistent with this principle, the exercise of the freedom may be the subject of reasonable government regulation. The broadcast media are no exception. In fact, in Federal Communications Commission (FCC) v. League of Women Voters in America, 28 it was held that
(W)e have long recognized that Congress, acting pursuant to the Commerce Clause, has power to regulate the use of this scarce and valuable national resource. The distinctive feature of Congress' efforts in this area has been to ensure through the regulatory oversight of the FCC that only those who satisfy the "public interest, convenience and necessity" are granted a license to use radio and television broadcast frequencies.

In the Philippines, it is the respondent NTC that has regulatory powers over telecommunications networks. In Republic Act No. 7925, 29 the NTC is denominated as its principal administrator, and as such shall take the necessary measures to implement the policies and objectives set forth in the Act. Under Executive Order 546, 30 the NTC is mandated, among others, to establish and prescribe rules, regulations, standards and specifications in all cases related to the issued Certificate of Public Convenience, promulgate rules and regulations as public safety and interest may require, and supervise and inspect the operation of radio stations and telecommunications facilities. 31 The NTC exercises quasijudicial powers. 32 The issuance of the press release by NTC was well within the scope of its regulatory and supervision functions, part of which is to ensure that the radio and television stations comply with the law and the terms of their respective authority. Thus, it was not improper for the NTC to warn the broadcast media that the airing of taped materials, if subsequently shown to be false, would be a violation of law and of the terms of their certificate of authority, and could lead, after appropriate investigation, to the cancellation or revocation of their license.

2.The press release was not in the nature of "prior restraint" on freedom of expression
Courts have traditionally recognized two cognate and complementary facets of freedom of expression, namely: freedom from censorship or prior restraint and freedom from subsequent punishment. The first guarantees untrammeled right to expression, free from legislative, administrative or judicial orders which would effectively bar speech or publication even before it is made. The second prohibits the imposition of any sanction or penalty for the speech or publication after its occurrence. Freedom from prior restraint has enjoyed the widest spectrum of protection, but no real constitutional challenge has been raised against the validity of laws that punish abuse of the freedom, such as the laws on libel, sedition or obscenity. "Prior restraint" is generally understood as an imposition in advance of a limit upon speech or other forms of expression.33 In determining whether a restriction is a prior restraint, one of the key factors considered is whether the restraint prevents the expression of a message. 34 In Nebraska Press Association v. Stuart, 35 the U.S. Supreme Court declared:
A prior restraint . . . by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after

publication "chills" speech, prior restraint "freezes" it at least for the time.

As an aspect of freedom of expression, prior restraint should not be confused with subsequent punishment. In Alexander v. U.S., 36 petitioner's complaint was that the RICO forfeiture provisions on businesses dealing in expressive materials constituted "prior restraint" because they may have an improper "chilling" effect on free expression by deterring others from engaging in protected speech. In rejecting the petitioner's contention and ruling that the forfeiture is a permissible criminal punishment and not a prior restraint on speech, the U.S. Supreme Court said:
The term prior restraint is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Temporary restraining orders and permanent injunctions i.e., court orders that actually forbid speech activities are classic examples of prior restraints. xxx xxx xxx Finally, petitioner's proposed definition of the term "prior restraint" would undermine the time-honored distinction between barring speech in the future and penalizing past speech. The doctrine of prior restraint originated in the common law of England where prior restraints of the press were not permitted, but punishment after publication was. This very limited application of the principle of freedom of speech was held inconsistent with our First Amendment as long ago as Grosjean v. American Press Co. While we may have given a broader definition to the term "prior restraint" than was given to it in English common law, our decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments. Though petitioner tries to dismiss this distinction as "neither meaningful nor useful," we think it is critical to our First Amendment jurisprudence. Because we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments, it is important for us to delineate with some precision the defining characteristics of a prior restraint. To hold that the forfeiture order in this case constituted a prior restraint would have the exact opposite effect. It would blur the line separating prior restraints from subsequent punishments to such a degree that it would be impossible to determine with any certainty whether a particular measure is a prior restraint or not.

A survey of free speech cases in our jurisdiction reveals the same disposition: there is prior restraint when the government act forbids speech, prohibits the expression of a message, or imposes onerous requirements or restrictions for the publication or dissemination of ideas. In theses cases, we did not hesitate to strike down the administrative or judicial order for violating the free expression clause in the Constitution. Thus, in Primicias v. Fugoso 37 and in Reyes v. Bagatsing, 38 the refusal, without valid cause, of the City Mayor of Manila to issue a permit for a public assembly was held to have infringed freedom of expression. In Burgos v. Chief of Staff 39and in Eastern Broadcasting v. Dans, 40 the closure of the printing office of the newspapers, We Forum and Metropolitan Mail, and of radio station DYRE in Cebu, respectively, was ruled as violation of freedom of the press. On election-related restrictions, Mutuc v. COMELEC 41 invalidated the respondent's prohibition against the use of taped jingles in mobile units of candidates; Adiong v. COMELEC 42 struck down the COMELEC's resolution limiting the posting of candidates' decals and stickers only in designated areas and not allowing them in private or public vehicles; Sanidad v. COMELEC 43 declared as unconstitutional the COMELEC prohibition on newspaper columnists and radio commentators to use their columns or programs to campaign for or against the ratification of the organic act establishing the Cordillera Autonomous Region; ABS-CBN Broadcasting Corporation v. COMELEC 44 annulled the COMELEC resolution prohibiting the conduct of exit polls; and Social Weather Stations v. COMELEC 45 nullified Section 5.4 of Republic Act No. 9006 and Section 24 (h) of COMELEC Resolution 3636 which prohibited the publication of pre-election survey results within specified periods. On movies and television, the injunctive writs issued by lower courts against the movie producers in Ayer Productions Pty. Ltd. v. Capulong 46 and in Viva Productions v. Court of Appeals 47 were invalidated, while in Iglesia ni Cristo v. Court of Appeals, 48 the X-rating given by MTRCB to the television show was ruled as grave abuse of discretion. But there is no parity between these cases and the case at bench. Unlike the government acts in the above-cited cases, what we have before us now is merely a press release not an order or a circular warning broadcast media on the airing of an alleged taped conversation, with the caveat that should its falsity be subsequently established, the act could lead to the revocation or cancellation of their licenses, after appropriate investigation. The warnings on possible license revocation and criminal prosecution are simply what they are,

mere warnings. They have no compulsive effect, as they do not impose a limit on speech or other forms of expression nor do they prevent the expression of a message. The judicial angle of vision in testing the validity of the assailed press release against the prior restraint standard is its operation and substance. The phrase "prior restraint" is not a self-wielding sword, nor should it serve as a talismanic test. What is needed is a practical assessment of its operation in specific or particular circumstances. 49 Significant are our own decisions in a number of cases where we rejected the contention that there was infringement of freedom of expression. In Lagunzad v. Vda. de Gonzales, 50 after balancing the right to privacy of Padilla's family with the right to free expression of the movie producer, we did not deem the Licensing Agreement for the movie depiction of the life of Moises Padilla as imposition of an impermissible limit on free speech. In Presidential Commission on Good Government (PCGG) v. Nepomuceno, 51 we refused to consider the PCGG takeover of radio station DWRN as an infringement on freedom of the press. In Tolentino v. Secretary of Finance, 52 we did not yield to the proposition of the press that the imposition of value added tax (VAT) on the gross receipts of newspapers from advertisements and on their acquisition of paper, ink and services for publication was an abridgment of press freedom. In Lagunzad, we said that while the License Agreement allowed the producer to portray in a movie the life of Moises Padilla, it did not confer poetic license to incorporate fictional embellishments. The takeover in PCGG was merely intended to preserve the assets, funds and properties of the station while it maintained its broadcasting operations. The VAT in Tolentino did not inhibit or impede the circulation of the newspapers concerned. Similarly, in the instant case, the issuance of the press release was simply part of the duties of the NTC in the enforcement and administration of the laws which it is tasked to implement. The press release did not actually or directly prevent the expression of a message. The respondents never issued instructions prohibiting or stopping the publication of the alleged wiretapped conversation. The warning or advisory in question did not constitute suppression, and the possible in terrorem effect, if any, is not prior restraint. It is not prior restraint because, if at all, the feared license revocation and criminal prosecution come after the publication, not before it, and only after a determination by the proper authorities that there was, indeed, a violation of law.

The press release does not have a "chilling effect" because even without the press release, existing laws and rules and regulations authorize the revocation of licenses of broadcast stations if they are found to have violated penal laws or the terms of their authority. 53 The majority opinion emphasizes the chilling effect of the challenged press releases the fear of prosecution, cancellation or revocation of license by virtue of the said press statements. 54 With all due respect, the majority loses sight of the fact that the press statements are not a prerequisite to prosecution, neither does the petition demonstrate that prosecution is any more likely because of them. If the prosecutorial arm of the Government and the NTC deem a media entity's act to be violative of our penal laws or the rules and regulations governing broadcaster's licenses, they are free to prosecute or to revoke the licenses of the erring entities with or without the challenged press releases. 55 The petitioner likewise makes capital of the alleged prior determination and conclusion made by the respondents that the continuous airing of the tapes is a violation of the Anti-Wiretapping Law and of the conditions of the authority granted to the broadcast stations. The assailed portion of the press release reads:
Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the commission that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the anti-wiretapping law and the conditions of the provisional authority and/or certificate of authority issued to these radio and television stations.

However, that part of the press statement should not be read in isolation, but in the context of the entire paragraph, the rest of which reads:
If it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.

Obviously, this latter portion qualifies the earlier part of the paragraph. Only when it has been sufficiently established, after a prosecution or appropriate

investigation, that the tapes are false or fraudulent may there be a cancellation or revocation of the station's license. There is no gainsaying that the airing of false information or willful misrepresentation constitutes a valid ground for revocation of the license, and so is violation of the AntiWiretapping Law which is a criminal offense. But that such revocation of license can only be effected after an appropriate investigation clearly shows that there are adequate safeguards available to the radio and television stations, and that there will be compliance with the due process clause. It is noteworthy that in the joint press statement issued on June 14, 2005 by the NTC and the Kapisanan ng mga Broadcasters sa Pilipinas, there is an acknowledgement by the parties that NTC "did not issue any MC (Memorandum Circular) or order constituting a restraint of press freedom or censorship." If the broadcasters who should be the most affected by the assailed NTC press release, by this acknowledgement, do not feel aggrieved at all, we should be guided accordingly. We cannot be more popish than the pope. Finally, we believe that the "clear and present danger rule" the universallyaccepted norm for testing the validity of governmental intervention in free speech finds no application in this case precisely because there is no prior restraint.

3.The penal sanction in R.A. 4200 or the revocation of the license for violation of the terms and conditions of the provisional authority or certificate of authority is permissible punishment and does not infringe on freedom of expression.
The Anti-Wiretapping Law (Republic Act 4200) is a penal statute. Over the years, no successful challenge to its validity has been sustained. Conviction under the law should fittingly be a just cause for the revocation of the license of the erring radio or television station.

Pursuant to its regulatory authority, the NTC has issued memorandum circulars covering Program Standards to be followed by radio stations and television networks, a common provision of which reads:
All radio broadcasting and television stations shall provide adequate public service time, shall conform to the ethics of honest enterprise; and

shall not use its stations for the broadcasting or telecasting of obscene or indecent language, speech and/or scene, or for the dissemination of false information or willful misrepresentation, or to the detriment of the public health or to incite, encourage or assist in subversive or treasonable acts. 56

Accordingly, in the Provisional Authority or the Certificate of Authority issued to all radio, television and cable TV stations, which all licensees must faithfully abide with, there is incorporated, among its terms and conditions, the following clause:
Applicant-Grantee shall provide free of charge, a minimum of thirty (30) hours/month time or access channel thru its radio/television station facilities to the National Government to enable it to reach the population on important public issues; assist public information and education; conform with the ethics of honest enterprise; and shall not use its stations for the telecasting of obscene or for dissemination of false information or willful misrepresentation, or do any such act to the detriment of public welfare, health, morals or to incite, encourage, or assist in any treasonous, rebellious, or subversive acts/omissions.

Undoubtedly, this is a reasonable standard of conduct demanded of the media outlets. The sanction that may be imposed for breach thereof suspension, cancellation or revocation of the station's license after an appropriate investigation has sufficiently established that there was a breach is also reasonable. It cannot be characterized as impermissible punishment which violates freedom of expression. There is no transgression of the people's right to information on matters of public concern. With the foregoing disquisition that there was no infringement on freedom of expression, there is no case for violation of the right to information on matters of public concern. Indeed, in the context of the prevailing factual milieu of the case at bench, the petitioner's contention can thrive only if there is a showing that the act of the respondents constituted prior restraint. There is, therefore, no further need to belabor the point. NTC did not commit grave abuse of discretion when it issued the press release

Grave abuse of discretion is defined as such capricious or whimsical exercise of judgment equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. 57 For grave abuse of discretion to be present, petitioner must show that the respondents violated or ignored the Constitution, the laws or existing jurisprudence. 58 As discussed earlier, respondents, in making the questioned press releases, did not violate or threaten to violate the constitutional rights to free expression and to information on matters of public concern. No grave abuse of discretion can be imputed to them. One final word. With the benefit of hindsight, it is noted that from the time the assailed press releases were issued and up to the present, the feared criminal prosecution and license revocation never materialized. They remain imagined concerns, even after the contents of the tapes had been much talked about and publicized. I therefore vote to dismiss the petition for certiorari and prohibition. TINGA, J., dissenting and concurring: This case, involving as it does the perennial clash between fundamental individual freedoms and state power, confronts the Court with a delicate and difficult balancing task. With all due respect with a little more forbearance, the petition could have been conduced to a denouement of congruity but without diminishing the level of scrutiny that the crucial stakes demand. I trust though that future iterations of this Court, more divorced from some irrational aspects of the passions of these times, will further refine the important doctrines laid down today. Several considerations guide my vote to grant the petition to issue the quested writ against the respondent Department of Justice Secretary Raul M. Gonzalez (DOJ Secretary), but not as to respondent National Telecommunications Commission (NTC).

I.

I begin with some observations on the petition itself filed by former Solicitor General Francisco Chavez, brought forth in his capacity "as a citizen, taxpayer and a law practitioner" against the DOJ Secretary and the NTC. At a crucial point during the deliberations on this case, much of the focus within the Court was on the aspect of the case concerning the NTC, to the exclusion of the aspect concerning the DOJ Secretary. However, the petition itself only minimally dwells on the powers of the National Telecommunications Commission (NTC). The petition was filed on 21 June 2005, less than a month after the socalled Hello Garci tapes (Garci tapes) hit the newstands. The petition narrates that a few days after reports on the Garci tapes became public, respondent DOJ Secretary "threatened that everyone found to be in possession of the controversial audio tape, as well as those broadcasting it or printing its contents, were liable for violation of the Anti-Wiretapping Law," 1 and subsequently he ordered the National Bureau of Investigation (NBI) "to go after media organizations found to have caused the spread, the playing and the printing of the contents" of the said tape. Then, a Press Release was issued by respondent NTC, essentially warning broadcast stations, "[i]f it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation. . .[,] that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies." 2 These essentially are the antecedent facts raised in the petition. Petitioner presents two general arguments for our determination: that respondents violated the constitutional provisions on the freedom of expression and of the press, 3 and of the right of the people to information on matters of public concern; 4 and that the NTC acted beyond its powers as a regulatory body when it warned broadcast stations of consequences if they continued to air the contents of the disputed tapes. 5 Fifteen (15) pages are assigned to the first issue, while four (4) pages are allotted to the second issue concerning the NTC. In the context of arguing that there had been prior restraint, petitioner manifests that "the threat of crackdown on media and the public were calculated to sow fear and terror in advance of actual publication and dissemination of the contents of the controversial tapes." 6 Because of such "fear and terror," the public was denied free access to information as guaranteed by the Constitution. 7

Only four (4) pages are devoted to whether the NTC exceeded its discretion when it issued the Press Release. About two (2) of the four (4) pages are utilized to cite the statutory provisions delineating the powers and functions of the NTC. The citations are geared toward the claim that "NTC is independent in so far as its regulatory and quasi-judicial functions are concerned." 8 Then the petition argues that nothing in the functions of the NTC "warrants the pre-emptive action it took on June 11, 2005 of declaring in a Press Release that airing of the contents of the controversial tape already constituted a violation of the Anti-Wire Tapping Law." 9 The petition also states that "[w]orse, the judgment of NTC was outright, without a hearing to determine the alleged commission of a crime and violation of the certificate of authority issued to radio and television stations," 10 though this point is neither followed up nor bolstered by appropriate citations which should be plenty. One relevant point of fact is raised in the Comment filed by the Office of the Solicitor General (OSG) in behalf of respondents. Three (3) days after the issuance of the Press Release, the NTC and the Kapisanan ng mga Brodkaster sa Pilipinas (KBP) issued a Joint Statement crafted after a dialogue between them. The Joint Statement declares:
2.NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. 3.NTC did not issue any Memorandum Circular or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. 4.What is being asked by NTC is that the exercise of press freedom be done responsibly. 11

II.
Based on the petition, the determinative questions appear to be: (1) whether the DOJ Secretary may be enjoined from prosecuting or threatening to prosecute any person for possessing or broadcasting the contents of the Garci tapes, an act which allegedly violates the free expression clause if not also the right to information clause; and (2) whether the NTC may be enjoined from sanctioning or threatening to sanction any broadcast media outlet for broadcasting

the Garcitapes, an action also alleged to infringe the aforementioned constitutional rights. It should be stressed that there are critical differences between the factual and legal milieu of the assailed act of the DOJ Secretary, on one hand, and that of the questioned conduct of the NTC, on the other. The act complained of the NTC consists in the issuance of a Press Release, while that of the DOJ Secretary is not encapsulated in a piece of paper but comprised in utterances which nonetheless were well documented by the news reports at that time. There is an element of caution raised in the Press Release in that it does not precisely sanction or threaten to immediately sanction the broadcast media for airing the Garci tapes, but it raises that possibility on the condition that "it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation." No such suspensive condition is embodied in the assailed acts of the DOJ Secretary.

And most critical in my view is the distinction between the NTC and the DOJ Secretary with respect to the breadth and reach of their ability to infringe upon the right to free expression. The NTC is a quasi-judicial regulatory body attached to the Department of Transportation and Communications exercising regulatory jurisdiction over a limited set of subjects: the broadcast media, telecommunications companies, etc. In the scope of its regulatory jurisdiction, it concededly has some capacity to impose sanctions or otherwise perform acts that could impinge on the right of its subjects of regulation to free expression, although the precise parameters of its legal authority to exercise such actions have not yet been fully defined by this Court. In contrast, the ability of the DOJ Secretary and the office that he heads to infringe on the right to free expression is quite capacious. Unlike the NTC whose power of injunction and sanction is limited to its subjects of regulation, the DOJ Secretary heads the department of government which has the premier faculty to initiate and litigate the prosecution of just about anybody.

III.
It should be assumed without controversy that the Garci tapes fall within the protection of the free expression clause. Much has been said in homage to the right to free expression. It is precisely the underlying reason I can write this submission, and the reader can read this

opinion or any news account concerning the decision and its various separate opinions. The revolutions we celebrate in our history books were animated in part by an insistence that this right should be recognized as integral. 12 The right inheres in the first yawl of the newborn infant, and allows a person to speak honestly in the throes of death. In 20th century American jurisprudence, the right to free speech and expression has been rightly linked to the inalienable right to liberty under the due process clause. 13 Indeed, liberty cannot be actualized unless it encompasses liberty of speech and expression. As a consequence, the same methodology as applied to due process and equal protection cases may hold as well to free expression cases. In my view, the operative principles that should govern the adjudication of free expression cases are uncomplicated. The infringement on the right by the State can take the mode of a content-based regulation or a content-neutral regulation. With respect to content-based regulations, the only expressions that may be proscribed or punished are the traditionally recognized unprotected expressions those that are obscene, pose danger to national security or incite imminent lawless action, or are defamatory. 14 In order that such unprotected expressions may be restrained, it must be demonstrated that they pose a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, such danger being grave and imminent as well. But as to all other protected expressions, there can be no content-based regulation at all. No prior restraint, no subsequent punishment. For as long as the expression is not libelous or slanderous, not obscene, or otherwise not dangerous to the immediate well-being of the State and of any other's, it is guaranteed protection by the Constitution. I do not find it material whether the protected expression is of a political, religious, personal, humorous or trivial nature they all find equal comfort in the Constitution. Neither should it matter through what medium the expression is conveyed, whether through the print or broadcast media, through the Internet or through interpretative dance. For as long as it does not fall under the above-mentioned exceptions, it is accorded the same degree of protection by the Constitution. Still concerning the protection afforded to the tapes, I do take issue with Justice Carpio's view that "[t]he airing of the Garci tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner. . ." and that the contents of the tapes "affect gravely the sanctity of the ballot." 15 These

statements are oriented towards the conclusion that "[i]f ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections would be at the top." 16 Yet even the majority opinion acknowledges that "the integrity of the taped conversation is also suspect. . ." and "[t]he identity of the wire-tappers, the manner of its commission, and other related and relevant proofs are some of the invisibles of this case. . . given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law." 17 To be blunt, it would be downright pretentious for the Court to attribute to the tapes any definitive character, political or otherwise, because there is simply no basis for us to make such conclusion at this point. But even if they are not of a political character, they nonetheless find protection under the free expression clause.

IV.
Given the constitutionally protected character of the tapes, it still falls upon the petition to establish that there was an actual infringement of the right to expression by the two denominated respondents the DOJ Secretary and the NTC in order that the reliefs sought may avail. There are two distinct (though not necessarily exclusive) means by which the infringement can be committed by either or both of the respondents through prior restraint or through an act that creates a chilling effect on the exercise of such right. I turn first to the assailed acts of the NTC. It is evident from the Decision and the concurring opinion of Justice Carpio that they give primary consideration to the aspect relating to the NTC, notwithstanding the relative lack of attention devoted by the petition to that issue. The impression they leave thus is that the assailed acts of the NTC were somehow more egregious than those of the DOJ Secretary. Worse, both the Decision and the concurring opinion reach certain conclusions on the nature of the Press Release which are, with due respect, untenable.

IV-A.
As a means of nullifying the Press Release, the document has been characterized as a form of prior restraint which is generally impermissible under the free expression clause. The concept of prior restraint is traceable to as far back as Blackstone's Commentaries from the 18th century. Its application is integral to

the development of the modern democracy. "In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." 18 In Nebraska Press Association v. Stuart, 19the United States Supreme Court noted that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." 20 Yet prior restraint "by contrast and by definition, has an immediate and irreversible sanction." 21 The assailed act of the NTC, contained in what is after all an unenforceable Press Release, hardly constitutes "an immediate and irreversible sanction." In fact, as earlier noted, the Press Release does not say that it would immediately sanction a broadcast station which airs the Garci tapes. What it does say is that only "if it has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation" that the stations could be subjected to possible suspension. It is evident that the issuance does not prohibit the airing of the Garci tapes or require that the broadcast stations obtain permission from the government or the NTC to air such tapes. How then have my esteemed colleagues, the Chief Justice and Justice Carpio, arrived at their conclusion that the Press Release operated as a prior restraint? Justice Carpio characterizes the Press Release as a "warning," and the document does use the word "warned," yet a warning is not "an immediate and irreversible sanction." The warning embodied in the Press Release is neither a legally enforceable vehicle to impose sanction nor a legally binding condition precedent that presages the actual sanction. However one may react to the Press Release or the perceived intent behind it, the issuance still does not constitute "an immediate and irreversible sanction". On the other hand, the Decision discusses extensively what prior restraint is, characterizing it, among others things, as "official government restrictions on the press or other forms of expression in advance of actual publication or dissemination." 22 The majority enumerates certain governmental acts which constitute prior restraint, such as the approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; injunctions against publication; the closure of the business or printing offices of certain newspapers; or more generally, "[a]ny law or official [act] that requires some form of permission to be had before publication can be made." 23

The Press Release does not fit into any of the acts described above in the majority opinion. Neither can it be identified as an "official government restriction" as it simply does not levy any actual restriction on the subjects of NTC regulation. Still, without undertaking a demonstration how the Press Release actually restrained free expression, the majority surprisingly makes a leap of logic, concluding as it does that such an informal act as a press statement is covered by the prior restraint concept. 24 As with Justice Carpio, the majority does not precisely explain how the Press Release could constitute an actual restraint, worded as it was with nary a notion of restriction and given its lack "of an immediate and irreversible sanction."

Absent prior restraint, no presumption of invalidity can arise.

IV-B.
I fear that the majority especially has unduly fused the concepts of "prior restraint" and "chilling effect." There are a few similarities between the two concepts especially that both come into operation before the actual speech or expression finds light. At the same time, there are significant differences. A government act that has a chilling effect on the exercise of free expression is an infringement within the constitutional purview. As the liberal lion Justice William Brennan announced, in NAACP v. Button, 25 "the threat of restraint, as opposed to actual restraint itself, may deter the exercise of the right to free expression almost as potently as the actual application of sanctions." 26 Such threat of restraint is perhaps a more insidious, if not sophisticated, means for the State to trample on free speech. Protected expression is chilled simply by speaking softly while carrying a big stick. In distinguishing chilling effect from prior restraint, Nebraska Press Association, citing Bickel, observed, "[i]f it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint "freezes" it at least for the time." 27 An act of government that chills expression is subject to nullification or injunction from the courts, as it violates Section 3, Article III of the Constitution. "Because government retaliation tends to chill an individual's exercise of his right to free expression, public officials may not, as a general rule, respond to an individual's protected activity with conduct or speech even though that conduct or speech would otherwise be a lawful exercise of public authority. 28

On the one hand, Justice Carpio does not bother to engage in any "chilling effect" analysis. On the other hand, the majority does conclude that the acts of the NTC had a chilling effect. Was there truly a chilling effect resulting from the Press Release of the NTC? While the act or issuance itself may evince the impression of a chilling effect, there still must be factual evidence to support the conclusion that a particular act of government actually engendered a chilling effect. There appears to be no case in American jurisprudence where a First Amendment claim went forward in the absence of evidence that speech was actually chilled. 29 In a case decided just last year by a U.S. District Court in Georgia, 30 the following summary was provided on the evidentiary requirement in claims of a chilling effect in the exercise of First Amendment rights such as free speech and association:
4.Proof of Chilling Effect Defendants' argue that Plaintiffs have failed to introduce evidence of a chilling effect, which is required to maintain a First Amendment claim. There is some uncertainty regarding the extent of evidence required to sustain a First Amendment challenge based on the chilling effect of compelled disclosure of protected political activity. See In re Grand Jury Proceeding, 842 F.2d 1229, 1235-36 (11th Cir.1988). The Supreme Court has indicated on several occasions that some evidence of a chilling effect is required. In NAACP, for example, the Supreme Court accepted that a chilling effect would result from the compelled disclosure of the NAACP's membership lists because of "uncontroverted evidence" in the record that members of the NAACP had suffered past adversity as a result of their known membership in the group. 357 U.S. at 464-65, 78 S.Ct. 1163. The Court in Buckley v. Valeo, however, emphasized, in rejecting a challenge to campaign finance disclosure laws based on its alleged chilling effect on political association, that there was no record evidence of a chilling effect proving a violation of the right to association. Buckley, 424 U.S. at 71-72, 96 S.Ct. 612 (noting that failure to tender evidence of chilling effect lessened scrutiny applied to First Amendment challenge to campaign donation disclosure laws). Seizing on this apparent evidentiary requirement, several lower courts have rejected right of association challenges for lack of evidence of a chilling effect. See, e.g., Richey v. Tyson, 120 F.Supp.2d 1298, 1324

(S.D.Ala.2000) (requiring, in challenge of campaign finance law, evidence of a "reasonable probability" of threats, harassment, or reprisals "from sources such as specific evidence of past or present harassment of members or of the organization, a pattern of threats, specific manifestations of public hostility, or conduct visited on organizations holding similar views"); Alabama State Federation of Teachers, AFL-CIO v. James, 656 F.2d 193, 197 (5th Cir. Unit B Sept.17, 1981) (rejecting right of association challenge for lack of evidence of chilling effect); Int'l Organization of Masters, Mates, and Pilots, 575 F.2d 896, 905 (D.C.Cir.1978) (same). But the Eleventh Circuit has drawn a distinction between challenges to political campaign donation disclosure rules of the sort at issue in Buckley and Richey and challenges to government investigations into "particular political group or groups" of the sort in NAACP and at issue in this case. See In re Grand Jury Proceeding, 842 F.2d at 1236. In doing so, the Eleventh Circuit suggested that a "more lenient" showing applies to targeted investigations because "the government investigation itself may indicate the possibility of harassment." Id.; see also Pollard v. Roberts, 283 F.Supp. 248, 258 (D.C.Ark.1968), aff'd per curiam 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (finding prosecutor's attempt to subpoena the names of contributors to a political campaign unconstitutional, despite "no evidence of record in this case that any individuals have as yet been subjected to reprisals on account of the contributions in question," because "it would be naive not to recognize that the disclosure of the identities of contributors to campaign funds would subject at least some of them to potential economic or political reprisals of greater or lesser severity"); cf. also Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1366-67 (11th Cir.1999) (concluding, without discussing record evidence of chilling effect, that statute which required disclosure of names of principal stockholders of adult entertainment establishments was abridgement of First Amendment). In addition, concerns about the economic vulnerabilities of public employees have led courts to more easily find the presence of a chilling effect on disclosure rules imposed on public employees. See, e.g., Local government has "pervasive control over the economic livelihood" or "professional destiny" of its employees, it may be obvious that compelling disclosure of organizational affiliations under threat of discipline could create a "substantial danger" of an "inevitable" chilling effect. Id. Thus, when examining freedom of association challenges in

1814, Int'l Longshoremen's Ass'n, AFL-CIO v. Waterfront Commission of New York Harbor, 667 F.2d 267, 271-72 (2d Cir.1981). Where the

the public employment context, courts have applied a "common sense approach." Id. at 272; see also Shelton, 364 U.S. at 486, 81 S.Ct. 247 (noting, in finding questionnaire distributed to public teachers inquiring into their organizational memberships unconstitutional, that burden on teacher's freedom to associate was "conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made," and not discussing evidence of chilling effect);Fraternal Order of Police, 812 F.2d at 119-20 ("We recognize that the record contains no evidence that would support a finding that a required response to this question would chill the applicant's or family member's associational activities. However, in light of the absence of any legitimate interest asserted by the City to justify the inquiry, we conclude that the question would not even withstand a more relaxed scrutiny than that usually applied to questions which seek disclosure of associational ties."). 31

It makes utter sense to impose even a minimal evidentiary requirement before the Court can conclude that a particular government action has had a chilling effect on free speech. Without an evidentiary standard, judges will be forced to rely on intuition and even personal or political sentiments as the basis for determining whether or not a chilling effect is present. That is a highly dangerous precedent, and one that clearly has not been accepted in the United States. In fact, in Zieper v. Metzinger, 32 the U.S. District Court of New York found it relevant, in ruling against the petitioner, that Zieper "has stated affirmatively that his speech was not chilled in any way." 33 "Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech." 34 In view of its regulatory jurisdiction over broadcast media, the ability of the NTC to infringe the right to free expression extends only to its subjects of regulation, not to private persons such as petitioner. Thus, to consider at bar whether or not the NTC Press Release had a chilling effect, one must look into the evidence on record establishing the broadcast media's reaction to the Press Release. The majority states that "[t]here is enough evidence of chilling effect of the complained acts of record," alluding to "the warnings given to media [which] came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media." 35 With due respect, I submit that what the record establishes is merely the presence of the cause for chilling (the Press Release), but not the actual chilling effect itself on the broadcast media. In that respect, the Joint Statement of the NTC and the KBP executed just three (3) days after the issuance of the Press Release, becomes material.

In the employment of the "chilling effect mode of analysis," disregarding the actual effects would mean dispensing with any evidentiary requirement for the constitutional claim. That is a doctrine which does not bode well for the Court's future in constitutional adjudication, and one I expect that will be significantly modified in due time.

In the Joint Statement, the KBP assented to the manifestation that "NTC did not issue any [Memorandum Circular] or Order constituting a restraint of press freedom or censorship, as well as disavowed having acted or intending "to limit or restrict the interview of members of the opposition or free expression of views." 36 The Joint Statement can certainly be taken in favor of the NTC as proof that its Press Release did not actually create a chilling effect on the broadcast media. On its face, it evinces the KBP's contentment with the Press Release and all other steps taken by the NTC with respect to the Garci tapes, coupled with the acknowledgment that the NTC had not infringed the right to free expression of its subjects of regulation. The majority casts aspersions on the KBP for "inexplicably joining the NTC in issuing an ambivalent Joint Press Statement" and on the perceived "silence on the sidelines on the part of some media practitioners." 37 Yet these are derogatory conjectures that are not supported by the record. It is quite easy to draw such negative inference, but there is another inference that can be elicited from the evidence on record that the KBP was so satisfied with the NTC's actions it consented to the averments in the Joint Statement. Since Independence, and outside of the Marcos years, there is no tradition of cowardice on the part of the Philippine media, even in the face of government retribution. Indeed, it is false and incongruous to dilute with aspersions of docility and inertness the true image of the most robust, vigilant and strident media in Asia. The best indication that the Philippine broadcast media was cowered or chilled by the NTC Press Release, if ever, would have been its initiation of a suit similar to that at bar, or its participation herein. The fact that it did not can lead to the reasonable assumption that the Press Release did not instill fear in the members of the broadcast media, for they have since then, commendably and in true-toform fashion challenged before the courts other NTC issuances which they perceived as actual threats to their right to free expression. 38

It bears adding that I had proposed during the deliberations of this case that the KBP or other large media organizations be allowed to intervene should they be so minded, if only to elicit their views for the record whether the NTC by issuing the Press Release truly chilled the exercise of their rights to expression, notwithstanding the Joint Statement. After all,it would be paternalistic at best, presumptuous at worst, for the Court to assume that conclusion without affording the broadcast media the opportunity to present its views on the question. Yet a majority of the members of the Court declined to take that step, thereby disallowing the introduction of more sufficient evidence to warrant a ruling against the NTC. Thus, we are left with utter paucity of evidence that the NTC had infringed the press freedom of its subjects of regulation mainly because of the broadcast media's non-participation in the petition at bar. If only on that account, I have to vote against the writ sought against the NTC. To decide otherwise would simply set an injudicious precedent that permits the affirmative relief to constitutional claims without having to bother with the need for evidence. There is another point raised with respect to the NTC aspect of this case, and that is the question of whether the NTC actually has the statutory authority to enjoin or sanction the broadcast of the tapes. The majority opinion does not conclusively settle that question, and that is for the best, given the absence of comprehensive arguments offered by the petitioner on that issue. I reserve my right to offer an opinion on that question in the appropriate case. Suffice it to say, there are at least two other cases now pending with this Court which raise precisely that question as the central issue and not merely as an afterthought. Those cases, which do offer more copious arguments on that issue than those presented before us, would provide a more fortuitous venue for the settlement of those questions.

IV-C.
The majority and concurring opinions hardly offer any rebuke to the DOJ Secretary even as they vote to grant affirmative relief against his actions. This ensued, I suspect, due to the undue focus placed on the arguments concerning the NTC, even though the petition itself was not so oriented. But for my part, it is the unequivocal threats to prosecute would-be-offenders, made no less by the head of the principal law agency of the government charged with the administration of the criminal justice system, 39 that constitute the violation of a fundamental freedom that in turn warrants this Court's intervention.

The particular acts complained of the DOJ Secretary are explained in detail in the petition, 40 narrated in the decision, 41and corroborated by contemporary news accounts published at that time. 42 The threats are directed at anybody in possession of, or intending to broadcast or disseminate, the tapes. Unlike the NTC, the DOJ Secretary has the actual capability to infringe the right to free expression of even the petitioner, or of anybody for that matter, since his office is empowered to initiate criminal prosecutions. Thus, petitioner's averments in his petition and other submissions comprise the evidence of the DOJ Secretary's infringement of the freedom of speech and expression. Was there an actual infringement of the right to free expression committed by the DOJ Secretary? If so, how was such accomplished? Quite clearly, the DOJ Secretary did infringe on the right to free expression by employing "the threat of restraint," 43 thus embodying "government retaliation [that] tends to chill an individual's exercise of his right to free expression." 44 The DOJ Secretary plainly and directly threatened anyone in possession of the Garci tapes, or anyone who aired or disseminated the same, with the extreme sanction of criminal prosecution and possible imprisonment. He reiterated the threats as he directed the NBI to investigate the airing of the tapes. He even extended the warning of sanction to the Executive Press Secretary. These threats were evidently designed to stop the airing or dissemination of the Garci tapes a protected expression which cannot be enjoined by executive fiat. Tasked with undertaking the defense of the DOJ Secretary, the OSG offered not even a ghost of a contest as soon as the bell for the first round rang. In abject surrender, it squeezed in just one paragraph 45 in its 27-page Comment for that purpose. The arguments offered in that solitary paragraph are meager. It avers that the media reports are without probative value or, at best, inconclusive as the declarations therein may have been quoted inaccurately or out of context. 46 Yet the OSG does not deny that the statements were made, 47 failing even to offer what may have been the "accurate context." The OSG also points out that the DOJ Secretary has not actually "made any issuance, order or instruction to the NBI to go after such media organizations." Yet the fact that the DOJ Secretary has yet to make operational his threats does not dissuade from the conclusion that the threats alone already chilled the atmosphere of free speech or expression.

V.

By way of epilogue, I note that the Garci tapes have found shelter in the Internet 48 after the broadcast media lost interest in airing those tapes, after the newsprint that contained the transcript had dissembled. The tapes are widely available on the Internet and not only in websites maintained by traditional media outfits, but also in such media-sharing sites as Google-owned YouTube, which has at least 20 different files of the tapes. 49 Internationally popular websites such as the online encyclopedia Wikipedia have linked to the tapes as well. 50 Then there is the fact that excerpts of the tapes were remixed and widely distributed as a popular ringtone for cellular phones. Indeed, the dimensions of the issue have long extended beyond the Philippine mass media companies and the NTC. This issue was hardly limited to the right of Philippine broadcast media to air the tapes without sanction from the NTC. It involved the right of any person wherever in the world situated to possess and disseminate copies of the tape without fear of reprisal from the Philippine government. Still, the vitality of the right to free expression remains the highlight of this case. Care and consideration should be employed in presenting such claims before the courts, and the hope is for a growing sophistication and specialization in the litigation of free speech cases. For all the above, I vote to GRANT the petition against respondent DOJ Secretary and DISMISS the same insofar as the NTC is concerned. VELASCO, JR., J., concurring and dissenting: I concur in the results of the majority opinion penned by Chief Justice Puno, but only insofar as the NTC aspect of the case is concerned. The opinion of the Chief Justice upon which this concurrence hinges is to the effect that the warning issued by the NTC, by way of a press release, that the continuous airing or broadcast of the "Garci Tapes" is a violation of the AntiWiretapping Law, restricts the freedom of speech and of the press and constitutes a content-based prior restraint impermissible under the Constitution. The quality of impermissibility comes in owing to the convergence and combined effects of the following postulates, to wit: the warning was issued at the time when the "Garci Tapes" was newspaper headline and radio/TV primetime material; it was given by the agency empowered to issue, suspend, or altogether cancel the certificate of authority of owners or operators of radio or broadcast media; the chilling effect the warning has on media owners, operators, or

practitioners; and facts are obtaining casting doubt on the proposition that airing the controversial tape would violate the anti-wiretapping law.

I also agree with the Chief Justice's observation that the prior restraining warning need not be embodied in a formal order or circular, it being sufficient that such warning was made by a government agency, NTC in this case, in the performance of its official duties. Press releases on a certain subject can rightfully be treated as statements of official position or policy, as the case may be, on such subject. To me, the facts on record are sufficient to support a conclusion that the press release issued by NTC with all the unmistakable threat embodied in it of a possible cancellation of licenses and/or the filing of criminal cases against erring media owners and practitioners constitutes a clear instance of prior restraint. Not lost on this writer is the fact that five (5) days after it made the press release in question, NTC proceeded to issue jointly with the Kapisanan ng mga Broadcasters sa Pilipinas (KBP) another press release to clarify that the earlier one issued was not intended to limit or restrain press freedom. With the view I take of the situation, the very fact that the KBP agreed to come up with the joint press statement that "NTC did not issue any [Memorandum Circular] or order constituting a restraint of press freedom or censorship" tends to prove, rather than disprove, the threatening and chilling tone of its June 11, 2005 press release. If there was no prior restraint from the point of view of media, why was there a need to hold a dialogue with KBP and then issue a clarifying joint statement? Moreover, the fact that media owners, operators, and practitioners appeared to have been frozen into inaction, not making any visible effort to challenge the validity of the NTC press statement, or at least join the petitioner in his battle for press freedom, can only lead to the conclusion that the chilling effect of the statement left them threatened. The full ventilation of the issues in an oral argument would have been ideal, particularly so since TV and radio operators and owners opted not to intervene nor were asked to give their comment on the chilling effect of the NTC press statement. Nonetheless, I find the admissions in the pleadings and the attachments thereto to be more than sufficient to judiciously resolve this particular issue. The contents of the June 11, 2005 press release eloquently spoke for themselves. The NTC "warning" is in reality a threat to TV and radio station owners and operators not to air or broadcast the "Garci Tapes" in any of

their programs. The four corners of the NTC's press statement unequivocally reveal that the "Garci Tapes" may not be authentic as they have yet to be duly authenticated. It is a statement of fact upon which the regulatory body predicated its warning that its airing or broadcast will constitute false or misleading dissemination of information that could result in the suspension or cancellation of their respective licenses or franchises. The press statement was more than a mere notice of a possible suspension. Its crafting and thrust made it more of a threat a declaration by the regulatory body that the operators or owners should not air or broadcast the tapes. Otherwise, the menacing portion on suspension or cancellation of their franchises to operate TV/radio station will be implemented. Indeed, the very press statement speaks eloquently on the chilling effect on media. One has to consider likewise the fact that the warning was not made in an official NTC circular but in a press statement. The press statement was calculated to immediately inform the affected sectors, unlike the warning done in a circular which may not reach the intended recipients as fast. In all, the NTC statement coupled with other circumstances convince this writer that there was indeed a chilling effect on the TV/radio owners, in particular, and media, in general. While the Court has several pieces of evidence to fall back on and judiciously resolve the NTC press release issue, the situation is different with respect to the Department of Justice (DOJ) warning issue. What is at hand are mere allegations in the petition that, on June 8, 2005, respondent DOJ Secretary Raul Gonzales warned reporters in possession of copies of the compact disc containing the alleged "Garci" wiretapped conversation and those broadcasting or publishing its contents that they could be held liable under the Anti-Wiretapping Act, adding that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge of the crime committed or in whose presence the crime was being committed. 1 There was no proof at all of the possible chilling effect that the alleged statements of DOJ Secretary Gonzales had on the reporters and media practitioners. The DOJ Secretary, as head of the prosecution arm of the government and lead administrator of the criminal justice system under the Administrative Code 2 is, to be sure, impliedly empowered to issue reminders and warnings against violations of penal statutes. And it is a known fact that Secretary Gonzales had issued, and still issues, such kind of warnings. Whether or not he exceeded his mandate under premises is unclear. It is for this main reason that I found the prior-restraint issue in the DOJ aspect of the case not yet ripe for adjudication.

I, therefore, register my concurrence with the ponencia of Chief Justice Reynato S. Puno insofar as it nullifies the official statement made by respondent NTC on June 11, 2005, but dissent, with regrets, with respect to the nullification of the June 8, 2005 official statement of respondent Secretary of Justice.