SECOND DIVISION

1. G.R. No. 222559, June 06, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JENNIFER GA-A Y CORONADO, Accused,

AQUILA "PAYAT" ADOBAR, Accused-Appellant.

DECISION

CAGUIOA, J.:

This is an Appeal1 filed pursuant to Section 13, Rule 124 of the Rules of Court from the Decision2 dated July 31, 2015
(assailed Decision) of the Court of Appeals, Twenty-Second (22nd) Division (CA) in CA-G.R. CR HC No. 01192-MIN. The
assailed Decision affirmed in toto the Judgment3 dated July 25, 2013 rendered by the Regional Trial Court of Cagayan de
Oro City, Branch 25 (trial court), in Criminal Case (CC) No. 2011-485, which found accused-appellant Aquila4 "Payat"
Adobar (Adobar) guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act No. (RA)
9165,5 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."6

The accusatory portion of the Information7 filed on June 1, 2011 against Adobar reads:

That on or about May 9, 2011[,] at about 11:00 in the morning, more or less, at 32ndStreet, Ramonal Village, [Barangay]
Camaman-an, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without being authorized by law to sell, trade, dispense and give away any dangerous drugs, did then and there
willfully, unlawfully and illegally sell, trade, dispense and give away to another one (1) heat-sealed transparent plastic
sachet containing white crystalline substance, to PDEA Agent Naomie Siglos, who acted as poseur-buyer, which after a
confirmatory test conducted by the PNP Crime Laboratory, said sachet is found positive of the presence of 0.03 grams of
Methamphetamine Hydrochloride, a dangerous drug commonly known as shabu, in consideration of Five Hundred pesos
(Php500.00) with Serial No. MR443620 which is recorded as marked money in a buy bust operation.

Contrary to and in Violation of Section 5 Article II of R.A. 9165.8

Adobar's co-accused, Jennifer Ga-a y Coronado (Ga-a), was charged on May 12, 2011 in two (2) other separate
Informations for violation of Sections 119 and 1510, respectively, both of Article II of RA 9165. On September 27, 2011,
she pleaded not guilty11 to both offenses charged and trial as against her commenced.

Meanwhile, Adobar remained at large until he was apprehended via an alias warrant of arrest12 on February 13,
2012.13 Upon his arraignment on April 2, 2012, Adobar entered a plea of "not guilty."14

As the cases against both accused arose out of the same incident, the parties adopted in the present case (Criminal Case
No. 2011-485) the testimonies of the witnesses already called to the stand in Criminal Case Nos. 2011-422 to 423 prior
to Adobar's arrest. Thereafter, joint trial on the three (3) cases continued as to the remaining witnesses for both
prosecution and defense.15

The Facts

Version of the Prosecution:

The prosecution presented the following witnesses: Philippine Drug Enforcement Agency (PDEA) Agents 1) IO1 Naomie
Siglos (IO1 Siglos); 2) IO3 Alex Tablate (IO3 Tablate); 3) IO1 Nestle Carin (IO1 Carin); 4) Police Chief Inspector (PCI) Erma
Salvacion - Sampaga (PCI Sampaga); and 5) Punong Barangay Dometilo Acenas, Jr. (Punong Barangay Acenas).16

The prosecution dispensed with the testimony of PCI Sampaga, the forensic chemist,17 after the defense stipulated on
certain matters.18
The prosecution made the following narration of facts:

On May 9, 2011, at about 10:00 o'clock in the morning, a team of PDEA Regional Office X agents, Cagayan de Oro City
(collectively, buy-bust team), organized a buy-bust operation against Adobar and his live-in partner based on
information from a Confidential Informant (CI), who came to said office that morning, and from the National Bureau of
Investigation (NBI) National Drug Information System watchlist of drug personalities which included Adobar.19 In the
meeting, assignments were made as follows: IO1 Siglos as poseur-buyer, IO3 Tablate as apprehending and investigating
officer and the rest of the agents as back-up. IO1 Siglos was given a buy-bust money of one (1) piece of Five Hundred
Pesos (P500.00) bill.20

After the briefing, the buy-bust team proceeded to the residence of Adobar at 32nd St., Ramonal Village, Camaman-an,
Cagayan de Oro City in two (2) unmarked service vehicles.21 Upon arrival, at about 11:00 o'clock in the morning, they
parked the vehicles about 20 to 30 meters away from Adobar's residence. IO1 Siglos and the CI alighted and walked
towards Adobar's house, outside of which a man, identified by the CI as Adobar, was standing.

The CI introduced IO1 Siglos to Adobar as a friend who was interested to buy shabu (subject drugs). Adobar asked IO1
Siglos how much worth of shabu she wanted to buy and the latter answered P500.00, while handing the buy-bust
money to Adobar. Upon receipt of the money, Adobar excused himself to get the "item" inside the house. In less than a
minute,22 Adobar came back and handed to IO1 Siglos one heat-sealed transparent sachet containing white crystalline
substance suspected to be shabu.23 After examining the sachet, IO1 Siglos rubbed the back of her head, signaling her
colleagues to respond to the scene.

Upon seeing the signal, IO3 Tablate, who earlier positioned himself about ten (10) meters away from the group of IO1
Siglos24 and who witnessed the exchange between IO1 Siglos and Adobar,25 alerted the rest of the team.26 The team
responded and rushed towards Adobar, with IO3 Tablate shouting "dapa, dapa[,] PDEA!"27 Adobar ran inside his house
and locked the front door behind him.28 The buy-bust team forced open the door, cleared the ground floor then
proceeded to the second floor where they found a small window through which they suspected Adobar to have
escaped.29 The buy-bust money was not recovered.

In another room on the same floor,30 IO3 Tablate found Ga-a. Near her were seventeen (17) pieces of transparent
sachets containing suspected shabu together with other drug paraphernalia on top of a table.31 Upon inquiry, Ga-a
introduced herself as Mecaella, the live-in partner of Adobar, and claimed that the shabu on the table were from
Adobar.32

Meanwhile, IO1 Siglos held custody of the subject drugs seized from Adobar until the same was turned over to IO3
Tablate for marking by the latter.

After "clearing" Adobar's house, IO3 Tablate called for Camaman-an Punong Barangay Acenas, media representative
Rondie Cabrejas of Magnum Radyo33 (media representative) and an unidentified representative from the Department of
Justice (DOJ).34 Thereafter, the sachets of suspected shabu, including the subject drugs, were marked35 with IO3
Tablate's initials, "AMT."36 After the marking, IO3 Tablate proceeded with the inventory of the seized items (including
the subject drugs) on the table where the seventeen (17) sachets were found,37 and prepared the Inventory of Seized
Items/Confiscated Non-Drugs (Inventory)38 in the presence of Ga-a.39 Photographs40 of the seized drugs, the room where
they were found and the accomplishment of the Inventory were then taken.41 It appears from the prosecution's
submissions that among the three (3) witnesses summoned, only Punong Barangay Acenas and the media
representative arrived at Adobar's house and witnessed42 and signed the Inventory.43

The buy-bust team and Ga-a proceeded to the PDEA RO-10, with IO3 Tablate in possession of all seized items, including
the subject drugs.44 Upon arrival, IO3 Tablate prepared a request for the examination of the seized items with the
Regional Crime Laboratory Office 10 (crime lab)45 and personally delivered said items thereto.46

Version of the Defense

The defense called to the stand accused-appellant Adobar and accused Ga-a who narrated the following pertinent facts:

In the morning of May 9, 2011, Ga-a was alone cooking her lunch inside the house of Adobar where she was a tenant
when she heard a loud pounding on the door.47 Suddenly, about ten (10) armed persons entered the house. After
introducing themselves as PDEA agents,48 they proceeded to search the house49 and destroyed Ga-a's belongings50 while
looking for a certain "Payat."51 Ga-a was likewise bodily searched by a woman.52 She was then invited to go to the PDEA
office and as they were about to leave, the agents called for a barangay official.53 Ga-a claimed that the evidence
presented by the prosecution were "planted" by the PDEA agents.54

Adobar, on the other hand, testified that on May 9, 2011, he went to Opol at 5:00 o'clock in the morning to buy fish for
vending.55 He then took the same to Abellanosa St., Cagayan de Oro City where he stayed until he went home at about
4:00 o'clock in the afternoon, when the fish were sold out.56 When he arrived at his house, he noticed that the door was
destroyed and the belongings inside were disarranged.57 He was likewise informed by the neighbors that Ga-a was
arrested by PDEA agents58 but he did not think to report the incident to the police as he was unschooled.59 On February
12, 2012, he was arrested while selling fish under the bridge in Abellanosa St.60

The Ruling of the trial court

In the Judgment dated July 25, 2013, the trial court found Adobar guilty beyond reasonable doubt of the offense
charged and imposed upon him the penalty of Life Imprisonment with a fine of Five Hundred Thousand Pesos
(P500,000.00).

In a two-paragraph discussion, the trial court held that under the circumstances, there was probable cause to arrest
Adobar. As between his and the prosecution's conflicting versions of facts, the latter's was more believable. No
discussion was made on the compliance by the PDEA team with the required procedures under relevant laws, rules and
regulations particularly, Section 21, Article II of RA 9165, albeit such was raised as an issue by the defense.61

On the other hand, the trial court acquitted accused Ga-a in both Criminal Case Nos. 2011-422 and 2011-423, holding
that the PDEA agents had no probable cause to search and arrest her. Moreover, the urine sample taken from Ga-a and
the results of the chemical examination made thereon showing the same positive for Methamphetamine Hydrochloride
are inadmissible in evidence, being fruits of the poisonous tree.62

The fallo of the trial court Judgment reads:

WHEREFORE, premises considered, this Court finds that:

1. In Criminal Cases Nos. 2011-422 and 2011-423, for failure of the prosecution to prove the guilt of the accused
beyond reasonable doubt, JENNIFER C. GAA is hereby ACQUITTED of the offenses charged. The Warden of the BJMP
having custody of JENNIFER C. GAA is hereby directed to immediately release her from detention unless she is
accused of other crimes which will justify her continued incarceration.

2. In Criminal Case No. 2011-485, accused AQUILO ADOBAR a.k.a. "Payat" is GUILTY BEYOND REASONABLE DOUBT of
the offense defined and penalized under Section 5, Article II of R.A. 9165 as charged in the Information, and hereby
sentences him to suffer the penalty of Life Imprisonment and to pay the Fine in the amount of Five Hundred
Thousand Pesos [P500,000.00], without subsidiary penalty in case of non-payment of fine.

Let the penalty imposed on accused Adobar be a lesson and an example to all who have the criminal propensity,
inclination and proclivity to commit the same forbidden act that crime does not pay, and that the pecuniary gain and
benefit, as well as the perverse psychological well being which one can derive from selling or manufacturing or trading
drugs, or other illegal substance, or from using, or possessing, or just committing any other acts penalized under
Republic Act 9165, cannot compensate for the penalty which one will suffer if ever he is prosecuted and penalized to the
full extent of the law.
SO ORDERED.63 (Emphasis in the original)
Adobar appealed to the CA via Notice of Appeal.64 He filed his Brief65 dated January 3, 2014, while the People, through
the Office of the Solicitor General (OSG), filed its Brief66 dated April 28, 2014. In a Resolution67 dated June 18, 2014, the
CA considered Adobar to have waived his right to file a Reply Brief.

The Ruling of the CA

In the assailed Decision, the CA affirmed in toto the trial court Judgment as follows:
IN VIEW OF THE FOREGOING, the appeal is hereby DENIED. The assailed Judgment dated July 25,2013 of the Regional
Trial Court, Branch 25, Cagayan de Oro City is hereby AFFIRMED in toto.68
The CA held that the prosecution adequately proved all the elements of the crime. It held that the prosecution
sufficiently established all the links in the chain of custody as to remove doubt on the integrity of the subject drugs.

Anent the alleged failure of the PDEA agents to comply with Section 21, Article II of RA 9165 as the media and DOJ
representatives, respectively, were not presented to testify on the Inventory which they supposedly witnessed, the CA
held that this lapse did not render the subject drugs seized inadmissible because the prosecution had duly shown that its
integrity and evidentiary value were preserved. According to the CA, substantial adherence - not strict adherence - to
the requirements of Section 21 suffices and the same was satisfied by the PDEA agents.

Hence, this recourse.

In lieu of filing supplemental briefs, Adobar and the People filed separate Manifestations dated July 4, 201669 and June
16, 2016,70 respectively, foregoing their right to file supplemental briefs as they have exhausted their arguments in their
respective Briefs filed before the CA.

Issue

The main question thrown to the Court for resolution is whether or not accused-appellant Adobar is guilty beyond
reasonable doubt of sale of illegal drugs as defined and punished under Section 5, Article II of RA 9165.

The Court's Ruling

The Appeal has merit.

Adobar is charged with selling 0.03 gram of dangerous illegal drugs, in particular, Methamphetamine Hydrochloride
colloquially known as shabu. At the outset, RA 9165, otherwise known as the Comprehensive Dangerous Drugs Acts of
2002, being the law in place at the time of the commission of the offense and being more favorable to the accused than
its successor, RA 10640,71 shall apply in this case.

Section 3(ii), Article I of RA 9165 defines "selling" as any act of giving away any dangerous drug and/or controlled
precursor and essential chemical whether for money or any other consideration. In the context of a buy-bust operation,
its elements are 1) that the transaction or sale took place between the accused and the poseur buyer; and 2) that the
dangerous drugs subject of the transaction or sale is presented in court as evidence of the corpus delicti.72

Anent the latter element, proof beyond reasonable doubt must be adduced in establishing the corpus delicti - the body
of the crime whose core is the confiscated illicit drug.73 It is important that the State establish with moral certainty the
integrity and identity of the illicit drugs sold as the same as those examined in the laboratory and subsequently
presented in court as evidence.74 This rigorous requirement, known under RA 9165 as the chain of custody,75 performs
the function of ensuring that unnecessary doubts concerning the identity of the evidence are removed.76

In turn, Section 21 of RA 9165 is a critical means to ensure the establishment of the chain of custody77by providing for
the procedures to be followed in the seizure, custody and disposition of confiscated, seized and/or surrendered drugs
and/or drug paraphernalia. Section 21 of RA 9165 provides:
SEC. 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of
the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the
same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic
laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That
when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential
chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall
be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic
laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory
examination on the same within the next twenty-four (24) hours; (Emphasis supplied and italics in the original)
Filling in the details as to where the physical inventory and photographing of the seized items should be made is Section
21(a), Article II of the Implementing Rules and Regulations of RA 9165 (IRR) which reads:
(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures; xxx (Emphasis supplied)
The same likewise provides for a saving clause in case of noncompliance with the requirements of RA 9165 and the IRR,
thus:
xxx Provided, further, that non-compliance with these requirements under Justifiable grounds, as long as the integrity
and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items; (Emphasis supplied)
The foregoing is echoed in Section 2(a) of the Dangerous Drugs Board (DDB) Regulation No. 1, Series of 2002, to wit:
a. The apprehending team having initial custody and control of dangerous drugs or controlled chemical or plant sources
of dangerous drugs or laboratory equipment shall immediately, after the seizure and confiscation, physically inventory
and photograph the same in the presence of:

(i) the person from whom such items were confiscated and/or seized or his/her representative or counsel;

(ii) a representative from the media;

(iii) a representative from the Department of Justice; and,

(iv) any elected public official;

who shall be required to sign copies of the inventory report covering the drugs/equipment and who shall be given a
copy thereof; Provided that the physical inventory and photograph shall be conducted at the place where the search
warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of seizure without warrant; Provided further that non-compliance with these requirement under
justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team xxx.
In sum, the applicable law mandates the following to be observed as regards the time, witnesses and proof of inventory
in the custody of seized dangerous illegal drugs:

1. The initial custody requirements must be done immediately after seizure or confiscation;

2. The physical inventory and photographing must be done in the presence of:
a. the accused or his representative or counsel;

b. a representative from the media;

c. a representative from the DOJ; and

d. any elected public official.

3. The conduct of the physical inventory and photograph shall be done at the:
a. place where the search warrant is served; or

b. at the nearest police station; or

c. nearest office of the apprehending officer/team, whichever is practicable, in case of

warrantless seizure.

In People v. Dela Cruz,78 it was explained that compliance with the chain of custody requirement provided by Section 21
ensures the integrity of confiscated drugs and related paraphernalia in four (4) respects: first, the nature of the
substances or items seized; second, the quantity (e.g., weight) of the substances or items seized; third, the relation of
the substances or items seized to the incident allegedly causing their seizure; and fourth, the relation of the substances
or items seized to the personls alleged to have been in possession of or peddling them.

Compliance with the requirements forecloses opportunities for planting, contaminating, or tampering of evidence in any
manner. Non compliance, on the other hand, is tantamount to failure in establishing the identity of corpus delicti, an
essential element of the offense of illegal sale of dangerous drugs, thus, engendering the acquittal of an accused.79

However, the law allows such non-compliance in exceptional cases where the following requisites are present: (1) the
existence of justifiable grounds to allow departure from the rule on strict compliance; and (2) the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending team.80 In these exceptional cases, the
seizures and custody over the confiscated items shall not be rendered void and invalid.

Against the foregoing legal backdrop, the Court had exhaustively studied the records and is of the considered view that
the integrity and identity of the corpus delicti are compromised.

The buy-bust team failed to comply with the requirements of Section 21 of RA 9165, particularly as to the presence of the
three (3) witnesses immediately after seizure and confiscation of the illegal drugs.

In no uncertain words, Section 21 requires the apprehending team to "immediately after seizure and confiscation,
physically inventory and photograph [the seized illegal drugs] in the presence of the accused xxx or his representative or
counsel, a representative from the media and the Department of Justice (DOJ) and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof."

The phrase "immediately after seizure and confiscation" means that the physical inventory and photographing of the
drugs must be at the place of apprehension and/or seizure. If this is not practicable, it may be done as soon as the
apprehending team reaches the nearest police station or nearest office.81

In all of these cases, the photographing and inventory are required to be done in the presence of any elected public
official and a representative from the media and the DOJ who shall be required to sign an inventory and given copies
thereof. By the same intent of the law behind the mandate that the initial custody requirements be done "immediately
after seizure and confiscation," the aforesaid witnesses must already be physically present at the time of apprehension
and seizure - a requirement that can easily be complied with by the buy-bust team considering that the buy-bust
operation is, by its very nature, a planned activity. Simply put, the buy-bust team had enough time and opportunity to
bring with them these witnesses.

In other words, while the physical inventory and photographing is allowed to be done "at the nearest police station or at
the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure," this does
not dispense with the requirement of having the DOJ and media representative and the elected public official to
be physically present at the time of and at or near the place of apprehension and seizure so that they can be ready to
witness the inventory and photographing of the seized drugs "immediately after seizure and confiscation."82

The reason is simple, it is at the time of arrest or at the time of the drugs' "seizure and confiscation" that the presence of
the three (3) witnesses is most needed. It is their presence at that point that would insulate against the police practice
of planting evidence.83 In People v. Mendoza,84 the Court ruled:
xxx Without the insulating presence of the representative from the media or the [DOJ], or any elected public official
during the seizure and marking of the sachets of shabu, the evils of switching, "planting" or contamination of the
evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972)
again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the sachets
of shabu that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the
incrimination of the accused. xxx85 (Italics in the original)
In the present case, none of these three (3) witnesses under Section 21 were present at the time the subject drugs
were allegedly confiscated from Adobar. Upon the other hand, only two (2) of the three (3) were summoned by the
team and were actually present during the physical inventory and photographing of the seized items.

The testimony of Punong Barangay Acenas, which was, in fact, offered by the prosecution for the sole purpose of
proving that he was present during the inventory and that he signed the inventory receipt,86supports the conclusion that
he arrived only after the subject drugs were already confiscated, thus:
[ATTORNEY ECHANO:]

Q But, you will admit that [when] the PDEA went inside the house, you were not present?

A When I arrived at the area, all the agents were already in the second floor of the house.

Q When did you receive the call from the PDEA agents?

A Immediately after the arrest [of Ga-a] and seizure.

 Q How many minutes did it take you before you arrived?

A About 15 minutes from our residence, Sir.

xxxx

[TRIAL COURT:]

Q In other words, Captain Acenas, when you arrived there, the accused [Ga-a] was already arrested?

A Yes, Your Honor.

Q The items were already on top of the aparador?

A Yes, Your Honor.

Q Was the Inventory already prepared ready for your signature or the Inventory was prepared when you were
there already?

A When I arrived, they started the Inventory, Your Honor.87 (Emphasis supplied)
To recall the prosecution's narrative, Ga-a was arrested after the buy-bust was made against Adobar, i.e., after the
subject drugs were taken from him by IO1 Siglos. Clearly, Punong Barangay Acenas was summoned only
sometime after the attempted arrest of Adobar and the alleged confiscation of the subject drugs from his person.
According to Punong Barangay Acenas, he arrived at the scene about fifteen (15) minutes from such call, when the
agents were already settled on the second floor of Adobar's home, ready for inventory. This is confirmed by IO3 Tablate
who testified that he phoned in the witnesses only after "clearing" the alleged crime scene, thus:
[PROSECUTOR VICENTE:]

xxxx

Q What did you do with the drugs on the table?

 A After clearing, before I actually made the markings[,] we called up the barangay captain or one of the members
of the team, the barangay captain, member from the media and also the representative from the DOJ and
upon their arrival it was the time when I actually made the markings to the evidence.

xxxx

Q And then what else after marking, labelling the sachets of shabu and the paraphernalia, what happened next,
Mr. Witness?

A After the inventory was signed by the witnesses, upon arrival of (sic) the office after the booking I also prepared
a request for the crime lab and then I myself was the one who delivered the evidence to the crime
lab.88 (Emphasis supplied)
Notably, while IO3 Tablate testified that all three (3) insulating witnesses came, observed and signed the inventory, this
testimony is contradicted by the records which reveal that only the signatures of Punong Barangay Acenas and the
media representative actually appear on the inventory document.89 In this regard it should also be noted that only
Punong Barangay Acenas was presented in court to testify.

Other than the above quoted testimony of IO3 Tablate, no sign of the presence of the DOJ representative appears on
record. In fact, the Affidavit90 dated May 10, 2011 of IO3 Tablate belies the presence of a DOJ Representative even
during the inventory, thus:
I, INTELLIGENCE OFFICER-3 ALEX M. TABLATE, xxx do hereby depose and say:

xxxx

That during the inventory of the seized items/evidence recovered, which I, IO-3 TABLATE myself conducted in the very
table itself where said items were found in plain view in the 2nd floor of the house of the suspects, the same were
witnessed by the Barangay Captain himself of Brgy. Camaman-an and by a representative from the media through
Magnum Radio.91 (Additional emphasis supplied)
To reiterate, the three (3) insulating witnesses must be present at the time of seizure of the drugs such that they must
be at or near the intended place of arrest so they can be ready to witness the inventory and photographing of the seized
items "immediately after seizure and confiscation." These witnesses must sign the inventory and be given copies
thereof. In the present case, from the evidence of the prosecution itself, none of the witnesses were present during
the seizure and confiscation of the subject drugs. Moreover, only two (2) of them - the punong barangay and the media
representative - witnessed the photographing and signed the inventory.

On this note, considering that at the point of seizure, i.e., the first link in the "chain of custody," irregularities were
already attendant, it becomes futile to prove the the rest of the links in the chain. Simply put, since "planting" of the
drugs was already made possible at the point of seizure because of the absence of all three (3) insulating witnesses,
proving the chain after such point merely proves the chain of custody of planted drugs.

Adobar's flight serves as a waiver of his right to be present during the initial custody requirements of Section 21 of RA
9165, but does not excuse compliance by the buy-bust team with the presence of the three (3) insulating witnesses
therein.

Apart from the three (3) insulating witnesses, Section 21 requires that the physical inventory and photographing of the
seized drugs by the apprehending team immediately after confiscation and seizure be likewise made in the presence of,
"the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel."92

The question arises: what if the person from whom the drugs were seized escaped? This obtains in the present case.
From the prosecution's narration, Adobar successfully evaded arrest despite the efforts of the buybust team to
apprehend him.93 He remained at large until his subsequent apprehension on February 13, 2012 via an alias warrant of
arrest.

If the story of the prosecution is to be believed, the escape of accused Adobar serves as a waiver of his right to be
present during the physical inventory and photographing of the drugs allegedly seized from him. The prosecution cannot
be burdened by the accused's escape provided that reasonable efforts were made to apprehend him, as what appears
in the present case. The buy-bust team cannot be reasonably expected to secure the presence of the accused's
representative or counsel at the time of confiscation and during the buy-bust operation, considering the clandestine
nature of such operations. In the same vein, after such escape, it should be difficult, if not impossible, for the buy-bust
team to find a counsel or representative for the accused before the initial custody requirements which Section 21
mandates to be performed "immediately after" the confiscation.

As such, the prosecution is excused from complying with the requirement of Section 21 as to the presence of the
accused during the initial custody requirements, i.e., physical inventory and photographing of the seized drugs.
However, it is not excused as to the presence of the three (3) insulating witnesses, i.e., the DOJ and media
representative and elected public official. The buy-bust team must still secure the presence of these insulating
witnesses, and the prosecution must still prove such presence, not only during the inventory and photographing but
likewise at the time of and at or near the intended place of confiscation and seizure of the subject drugs.

In the same vein, the buy-bust team need not secure the presence of the accused during the marking of the seized drugs
as his escape serves as a waiver of his right to witness the same. As will be extensively discussed below, although Section
21 is silent as to the matter of marking of seized drugs, jurisprudence94 teaches that consistency with the chain of
custody rule requires the same to be done in the presence of the accused.

The prosecution failed to trigger the saving clause under the IRR of RA 9165. Its noncompliance with Section 21 cannot be
excused; the identity of the corpus delicti is not established.

To be sure, strict compliance with the prescribed procedure under Section 21 is required as a rule.95 The exception to
this rule is found in the saving clause under Section 21 (a), Article II of the IRR of RA 916596 which requires the following:
(1) the existence of justifiable grounds to allow departure from the rule on strict compliance; and (2) the integrity and
evidentiary value of the seized items are properly preserved by the apprehending team.97

If these two (2) requisites are present and the saving clause is successfully triggered, the confiscated items shall not be
rendered void and invalid. This allows the prosecution to establish the identity of the corpus delicti despite failure of the
apprehending team to physically inventory and photograph the drugs at the place of arrest and/or to have the DOJ and
media representative and elected public official witness the same.

On the first element, it has been emphasized that the prosecution must first recognize any lapses on the part of the
apprehending officers and thereafter explain the cited justifiable grounds.98 Moreover, the justifiable explanation given
must be credible.99 Breaches of the procedure contained in Section 21 committed by the police officers, left
unacknowledged and unexplained by the State, militate against a finding of guilt beyond reasonable doubt against the
accused as the integrity and evidentiary value of the corpus delicti had been compromised.100

Hence, to successfully trigger the saving clause, the prosecution must satisfy its two-pronged requirement: first,
acknowledge and credibly justify the non-compliance, and second, show that the integrity and evidentiary value of
the seized item were properly preserved. The Court held in Valencia v. People:101
Although the Court has ruled that non-compliance with the directives of Section 21, Article II of R.A. No. 9165 is not
necessarily fatal to the prosecution's case, the prosecution must still prove that (a) there is a justifiable ground for the
non-compliance, and (b) the integrity and evidentiary value of the seized items were properly preserved. Further, the
non-compliance with the procedures must be justified by the State's agents themselves. The arresting officers are under
obligation, should they be unable to comply with the procedures laid down under Section 21, Article II of R.A. No. 9165,
to explain why the procedure was not followed and prove that the reason provided a justifiable ground. Otherwise, the
requisites under the law would merely be fancy ornaments that may or may not be disregarded by the arresting officers
at their own convenience.102
In this case, the prosecution did not acknowledge the lapses, much less offer a credible and justifiable ground for the
failure of the buy-bust team to comply with Section 21. No explanation was advanced as to why none of the insulating
witnesses was present at the time of seizure and confiscation of the subject illegal drugs. Neither do the records show
any justification as to why no DOJ representative was secured to witness the photographing and physical inventory of
the seized drugs. Worse, the prosecution did not even concede such lapses. The affidavit of IO3 Tablate shows the
indifference of the prosecution on its failure to comply with Section 21, thus:
That IO-1 SIGLOS turned over to me, IO-3 TABLATE the one (1) piece of heat-sealed transparent sachet containing white
crystalline substance also suspected to be shabu, which was the subject of the buybust earlier transacted.

That during the inventory of the seized items/evidence recovered, which I, IO-3 TABLATE myself conducted in the very
table itself where said items were found in plain view in the 2nd floor of the house of the suspects, the same were
witnessed by the Barangay Captain himself of Brgy. Camaman-an and by a representative from the media through
Magnum Radio.

That at the PDEA Regional Office-10, the arrested female suspect formally identified herself as Jennifer C. Ga-a, 22 years
old, single and a resident of Ramonal Village, Brgy. Camaman-an, Cagayan de Oro City while the other suspect who was
able to elude arrest despite earnest effort to apprehend him was formally identified as Aquilo Adobar, 48 years old,
married and a resident of the same barangay. The latter suspect is a targetlisted personality as per PDEA National Drugs
Information System (NDIS).103 (Emphasis in the original)
Hence, considering the prosecution neither acknowledged nor explained its noncompliance with Section 21, the first
prong was not satisfied, thus leading to the inevitable conclusion that the saving clause was not triggered. Accordingly,
there is no point anymore in determining if the second prong had been satisfied - i.e., proving the integrity and
evidentiary value of the seized illegal drugs.

To be sure, from the records, outside the non-compliance with Section 21, the integrity and evidentiary value of the
seized illegal drugs are heavily tainted. The second prong, even if the Court allows proof of such despite failure to prove
the first prong, seems difficult if not impossible to establish in light of the serious irregularities in the transfer of custody
of the seized illegal drugs.

Proving the second prong of the saving clause - the integrity of the seized illegal drugs - despite non-compliance with
Section 21 requires establishing the four links in the chain of custody: First, the seizure and marking, if practicable, of the
illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by
the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to
the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug
seized from the forensic chemist to the court.104

In the present case, there was failure to mark the seized illegal drugs immediately after confiscation due to the palpable
gap between the confiscation of the drugs to its subsequent marking which the prosecution utterly failed to explain.

Marking is the placing by the arresting officer or the poseur-buyer of his/her initials and signature on the items after
they have been seized. In People v. Beran,105 the Court held that while the matter of marking of the seized illegal drugs in
warrantless seizures is not expressly specified in Section 21, consistency with the chain of custody rule requires that
such marking should be done (1) in the presence of the apprehended violator and (2) immediately upon confiscation,
to wit:
What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the
seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence
subjected to inventory and photography when these activities are undertaken at the police station rather than at the
place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items-to truly
ensure that they are the same items that enter the chain and are eventually the ones offered in evidence-should be
done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process
of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending
officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft.
xxx106 (Emphasis in the original)
It is vital that the seized contrabands are immediately marked because succeeding handlers of the specimens will use
the markings as reference. The Court has held:
Crucial in proving [the] chain of custody is the marking of the seized drugs or other related items immediately after
they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus it is vital that the
seized contraband[s] are immediately marked because succeeding handlers of the specimens will use the markings as
reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or
related evidence from the time they are seized from the accused until they are disposed of at the end of criminal
proceedings, obviating[,] switching, "planting," or contamination of evidence.

Long before Congress passed RA 9165, this Court has consistently held that failure of the authorities to immediately
mark the seized drugs raises reasonable doubt on the authenticity of the corpus delicti and suffices to rebut the
presumption of regularity in the performance of official duties, the doctrinal fallback of every drug-related
prosecution.107 (Additional emphasis supplied)
In the present case, a considerable period of time intervened between the confiscation of the subject drugs and its
subsequent marking - which was unaccounted for by the prosecution. This gaping hiatus is brought about by the failure
of the poseur buyer, IO1 Siglos, to credibly account for her whereabouts and the handling of the subject drugs from the
time she confiscated the same from Adobar to the time she turned it over to IO3 Tablate for marking. The marked
inconsistencies in her testimonies taken on April 23, 2012 and November 6, 2012 fail the test of credibility.

On April 23, 2012, IO1 Siglos testified that when her colleagues responded to the scene, she inspected the area with
them and then, without much delay, followed IO3 Tablate upstairs for the marking, thus:
[PROSECUTOR VICENTE:]

xxxx

Q And then after you made that pre-arranged signal of rubbing your back head, what happened?

A After a few minutes[,] the back up team rushed up.

Q What happened next?

A And then when they arrived we checked the area and then after we checked the area I followed them and
then I went up stairs to give the buy-bust evidence to the arresting officer, Sir.
 xxxx

Q You said that after you touched your head the arresting officer arrived, and then Tablate went upstairs?

A Yes, Sir.

Q How many minutes after Tablate went upstairs, how many minutes you followed Tablate?

A About 3-4 minutes, Sir.108 (Emphasis supplied)

This is in contrast to her testimony on November 6, 2012 where she stated under oath that when the back-up team
arrived, she proceeded to the team's service vehicle, about 10-15 meters away, and therein waited for a considerable
time while the back-up team chased after Adobar and searched the premises. She only went back to the house and
handed the subject drugs to IO3 Tablate when it was time for the physical inventory, thus:
[PROSECUTOR VICENTE:]

xxxx

Q After you rubbed the back part of your head, what happened next?

A I noticed that the operatives rushed up to the area, Sir.

xxxx

Q So[,] when the operatives arrived, what did Aquillo (sic) Adobar do?

A He went upstairs, Sir.

Q He run?

A Yes, Sir.
Q And he was chased by the operatives?

A Yes, Sir.

xxxx

Q What did you do?

A I went outside going to our service vehicle, Sir.

Q How far was the service vehicle parked from the house?

A More or less 10-15 meters, Sir.

xxxx

Q Why you did not go with them when they chased the accused?

A Because my tasked (sic) is only a [poseur] buyer, Sir.

Q You said that the accused handed to you the sachet of shabu, what did you do with it?

A I handed to the arresting officer, IO3 Tablate during the inventory, Sir.

Q But you said you went to the vehicle?

A Yes, Sir.
 Q You waited there?

A Yes, Sir.

Q And then, when did your team conduct an inventory?

A After the searched (sic), Sir.

Q So[,] after you went to the vehicle, you went back to the house?

A Yes, Sir.109 (Emphasis supplied)

The significance of this contradiction in IO1 Siglos' testimony cannot be overemphasized. Being the first custodian in the
chain and having held onto the then unmarked seized drugs for a considerable lapse of time, IO1 Siglos must clearly and
convincingly account for her handling and care of the subject drugs before turning them over to IO3 Tablate for marking.
In this, she failed, thus, effectively creating an obvious but unexplained break in the chain. Hence, assuming that the
illegal drugs which went into the chain are actually the same drugs seized from Adobar's person, i.e., assuming the same
were not planted at the point of seizure, there remains that great possibility of switching while the same were in IO1
Siglos' custody.

The foregoing conflicting narrations, seemingly trivial when viewed in isolation, cast very serious doubts on the veracity
of the prosecution's overall narrative when juxtaposed against the procedural lapses of the buybust team and its abject
failure to justify said lapses.

Courts must be extra vigilant in trying drugs cases.

Unfortunately, the CA and the trial court glossed over these obvious irregularities which attended the present buy-bust
operation and the resulting confiscation of the subject drugs.

The CA, while seemingly recognizing the lapses in observing Section 21,110 simply dismissed the same "because it was
shown by the prosecution that the integrity and evidentiary value of the specimens were properly preserved by the buy-
bust team."111 In other words, the CA excused the failure of the buy-bust team to comply with Section 21 on the basis of
the second prong of the saving clause (that the integrity and evidentiary value of the subject drugs are
established) but ignoring altogether the first prong (absence of justifiable reasons for the procedural lapses). The CA
justifies its decision to excuse this nonobservance of Section 21 by ruling that only substantial adherence thereto is
required.112

This position taken by the CA is mistaken. To reiterate, the procedure enshrined in Section 21 is a matter of substantive
law and cannot be brushed aside as a simple procedural technicality.113Substantive law requires strict observance of
these procedural safeguards.114 Courts, in resolving drugs cases must keep in mind this mandate and the peculiar nature
of buy-bust operations being susceptible to police abuse as discussed by the Court, thus:
xxx a buy-bust operation has a significant downside that has not escaped the attention of the framers of the law. It is
susceptible to police abuse, the most notorious of which is its use as a tool for extortion. In People v. Tan, this Court
itself recognized that by the very nature of anti-narcotics operations, the need for entrapment procedures, the use of
shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets of
or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is
great. xxx115 (Italics in the original)
For this, the Court has instructed lower courts to exercise extra vigilance in trying drugs cases "lest an innocent person
be made to suffer the unusually severe penalties for drug offenses."116 The presumption that regular duty was
performed by the arresting officers simply cannot prevail over the presumption of innocence granted to the accused by
the Constitution. It is thus incumbent upon the prosecution to prove that the accused is indeed guilty beyond
reasonable doubt.117

At this point, it is well to emphasize that this case involves a meager 0.03 gram of shabu. Courts must employ
heightened scrutiny, consistent with the requirement of proof beyond reasonable doubt, in evaluating cases involving
miniscule amounts of drugs as they can be readily planted and tampered with.118 Consistent with this, in People v.
Segundo119 involving the same amount of drugs as the case at hand (0.03 gram), the Court emphasized the extra caution
that law enforcers must observe in preserving the integrity of small amounts of seized drugs, thus:
To sum, "[l]aw enforcers should not trifle with the legal requirement to ensure integrity in the chain of custody of
seized dangerous drugs and drug paraphernalia." Thus, "[t]his is especially true when only a miniscule amount of
dangerous drugs is alleged to have been taken from the accused."

Although the miniscule quantity of confiscated illicit drugs is solely by itself not a reason for acquittal, this instance
accentuates the importance of conformity to Section 21 that the law enforcers in this case miserably failed to do so. If
initially there were already significant lapses on the marking, inventory, and photographing of the alleged seized items, a
doubt on the integrity of the corpus delicti concomittantly exists. xxx120 (Emphasis supplied)
Adobar's defense of denial is concededly weak and uncorroborated. This weakness, however, does not add strength to
the prosecution's case as the evidence for the prosecution must stand or fall on its own weight. Well-entrenched in
jurisprudence is the rule that the conviction of an accused must rest not on the weakness of the defense but on the
strength of the evidence of the prosecution.121

Based on the foregoing and following the Court's precedents as discussed above, the Court is constrained to reverse
Adobar's conviction.

The prosecution failed to prove the corpus delicti of the crime due to the serious lapses in observing Section 21 of RA
9165 and the concomitant failure to trigger the saving clause. Anent the latter point, the prosecution utterly failed to
acknowledge and credibly justify its procedural lapses and was unable to prove the integrity and evidentiary value of the
seized drugs. Adobar's innocence, as presumed and protected by the Constitution, must stand in light of the reasonable
doubt on his guilt.

To conclude, the Court issues anew a reminder: The prosecution arm of the government has the duty to prove, beyond
reasonable doubt, each and every element of the crime charged. In illegal drugs cases, this includes proving faithful
compliance with Section 21 of RA 9165, being fundamental to establishing the element of corpus delicti. In the course of
proving such compliance before the trial courts, prosecutors must have the initiative to not only acknowledge, but
also justify, any perceived deviations from the procedural requirements of Section 21. 122

As no less than the liberty of an accused is at stake, appellate courts, this Court included, must, in turn, sift the
records to determine if, indeed, the apprehending team observed Section 21 and if not, if the same is justified under
the circumstances. This, regardless if issues thereon were ever raised or threshed out in the lower court/s, consistent
with the doctrine that appeal in criminal cases throws the whole case open for review and the appellate court must
correct errors in the appealed judgment whether they are assigned or not.123 If, from such full examination of the
records, there appears unjustified failure to comply with Section 21, it becomes the appellate court's bounded duty to
acquit the accused, and perforce, overturn a conviction.124

WHEREFORE, premises considered, the Decision dated July 31, 2015 of the CA in CA-G.R. CR HC No. 01192-MIN
is REVERSED and SET ASIDE. Accused-appellant Aquila "Payat" Adobar is hereby ACQUITTED for failure of the
prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he
is confined for any other lawful cause.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections, for immediate implementation. The
Director of the Bureau of Corrections is directed to report to this Court, within five (5) days from receipt of this Decision,
the action he has taken. Copies shall also be furnished to the Director General of the Philippine Drug Enforcement
Agency for his information.

SO ORDERED.

EN BANC

2. [ GR No. 231989, Sep 04, 2018 ]

PEOPLE v. ROMY LIM Y MIRANDA +

DECISION

PERALTA, J.:
On appeal is the February 23, 2017 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR HC No. 01280-MIN, which
affirmed the September 24, 2013 Decision[2] of Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, in Criminal
Case Nos. 2010-1073 and 2010-1074, finding accused-appellant Romy Lim y Miranda (Lim) guilty of violating Sections 11
and 5, respectively, of Article II of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.

In an Information dated October 21, 2010, Lim was charged with illegal possession of Methamphetamine
Hydrochloride (shabu),committed as follows:

That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or
use any dangerous drugs, did then and there, willfully, unlawfully, criminally and knowingly have in his possession,
custody and control one (1) heat-sealed transparent plastic sachet containing Methamphetamine hydrochloride, locally
known as Shabu, a dangerous drug, with a total weight of 0.02 gram, accused well-knowing that the substance
recovered from his possession is a dangerous drug.

Contrary to, and in violation of, Section 11, Article II of Republic Act No. 9165.[3]
On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), was also indicted for illegal sale
of shabu, committed as follows:

That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and
mutually helping one another, without being authorized by law to sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drugs, did then and there willfully, unlawfully,
criminally and knowingly sell and/or offer for sale, and give away to a PDEA Agent acting as poseur-buyer One (1) heat-
sealed transparent plastic sachet containing Methamphetamine hydrochloride, locally known as Shabu, a dangerous
drug, with a total weight of 0.02 gram, accused knowing the same to be a dangerous drug, in consideration of Five
Hundred Pesos (Php500.00) consisting of one piece five hundred peso bill, with Serial No. FZ386932, which was
previously marked and recorded for the purpose of the buy-bust operation.

Contrary to Section 5, Paragraph 1, Article II of Republic Act No. 9165.[4]

In their arraignment, Lim and Gorres pleaded not guilty.[5] They were detained in the city jail during the joint trial of the
cases.[6]
The prosecution presented Intelligence Officer (IO) 1 Albert Orellan, IO1 Nestle Carin, IO2 Vincent Orcales, and Police
Senior Inspector (PSI) Charity Caceres. Aside from both accused, Rubenia Gorres testified for the defense.

Version of the Prosecution

Around 8:00 p.m. on October 19, 2010, IO1 Orellan and his teammates were at Regional Office X of the Philippine Drug
Enforcement Agency (PDEA). Based on a report of a confidential informant (CI) that a certain "Romy" has been engaged
in the sale of prohibited drugs in Zone 7, Cabina, Bonbon, Cagayan de Oro City, they were directed by their Regional
Director, Lt. Col. Edwin Layese, to gather for a buy-bust operation. During the briefing, IO2 Orcales, IO1 Orellan, and IOl
Carin were assigned as the team leader, the arresting officer/back-up/evidence custodian, and the poseur-
buyer, respectively. The team prepared a P500.00 bill as buy-bust money (with its serial number entered in the PDEA
blotter), the Coordination Form for the nearest police station, and other related documents.

Using their service vehicle, the team left the regional office about 15 minutes before 10:00 p.m. and arrived in the target
area at 10:00 p.m., more or less. IO1 Carin and the CI alighted from the vehicle near the comer leading to the house of
"Romy," while IO1 Orellan and the other team members disembarked a few meters after and positioned themselves in
the area to observe. IO1 Carin and the CI turned at the comer and stopped in front of a house. The CI knocked at the
door and uttered, "ayo, nang Romy. " Gorres came out and invited them to enter. Inside, Lim was sitting on the sofa
while watching the television. When the CI introduced IO1 Carin as a shabu buyer, Lim nodded and told Gorres to get
one inside the bedroom. Gorres stood up and did as instructed. After he came out, he handed a small medicine box to
Lim, who then took one piece of heat-sealed transparent plastic of shabu and gave it to IO1 Carin. In turn, IO1 Carin paid
him with the buy-bust money.

After examining the plastic sachet, IO1 Carin executed a missed call to IO1 Orellan, which was the pre-arranged signal.
The latter, with the rest of the team members, immediately rushed to Lim's house. When they arrived, IO1 Carin and the
CI were standing near the door. They then entered the house because the gate was opened. IO1 Orellan declared that
they were PDEA agents and informed Lim and Gorres, who were visibly surprised, of their arrest for selling dangerous
drug. They were ordered to put their hands on their heads and to squat on the floor. IO1 Orellan recited the Miranda
rights to them. Thereafter, IO1 Orellan conducted a body search on both.

When he frisked Lim, no deadly weapon was found, but something was bulging in his pocket. IOl Orellan ordered him to
pull it out. Inside the pocket were the buy-bust money and a transparent rectangular plastic box about 3x4 inches in
size. They could see that it contained a plastic sachet of a white substance. As for Gorres, no weapon or illegal drug was
seized.

IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic sachet of white substance, and a
disposable lighter. IOl Carin turned over to him the plastic sachet that she bought from Lim. While in the house, IO1
Orellan marked the two plastic sachets. Despite exerting efforts to secure the attendance of the representative from the
media and barangay officials, nobody arrived to witness the inventory-taking.

The buy-bust team brought Lim and Gorres to the PDEA Regional Office, with IO1 Orellan in possession of the seized
items. Upon arrival, they "booked" the two accused and prepared the letters requesting for the laboratory examination
on the drug evidence and for the drug test on the arrested suspects as well as the documents for the filing of the case.
Likewise, IO1 Orellan made the Inventory Receipt of the confiscated items. It was not signed by Lim and Gorres. Also,
there was no signature of an elected public official and the representatives of the Department of Justice (DOJ) and the
media as witnesses. Pictures of both accused and the evidence seized were taken.

The day after, IO1 Orellan and IO1 Carin delivered both accused and the drug specimens to Regional Crime Laboratory
Office 10. IO1 Orellan was in possession of the sachets of shabu from the regional office to the crime lab. PSI Caceres,
who was a Forensic Chemist, and Police Officer 2 (PO2) Bajas[7] personally received the letter-requests and the two
pieces of heat-sealed transparent plastic sachet containing white crystalline substance. PSI Caceres got urine samples
from Lim and Gorres and conducted screening and confirmatory tests on them. Based on her examination, only Lim was
found positive for the presence of shabu. The result was shown in Chemistry Report No. DTCRIM-196 and 197-2010.
With respect to the two sachets of white crystalline substance, both were found to be positive ofshabu after a
chromatographic examination was conducted by PSI Caceres. Her findings were reflected in Chemistry Report No. D-
228-2010. PSI Caceres, likewise, put her own marking on the cellophane containing the two sachets of shabu. After that,
she gave them to the evidence custodian. As to the buy-bust money, the arresting team turned it over to the fiscal's
office during the inquest.

Version of the Defense

Around 10:00 p.m. on October 19, 2010, Lim and Gorres were in their house in Cabina, Bonbon, Cagayan de Oro City.
Lim was sleeping in the bedroom, while Gorres was watching the television. When the latter heard that somebody
jumped over their gate, he stood up to verify. Before he could reach the door, however, it was already forced opened by
the repeated pulling and kicking of men in civilian clothing. They entered the house, pointed their firearms at him,
instructed him to keep still, boxed his chest, slapped his ears, and handcuffed him. They inquired on where
the shabu was, but he invoked his innocence. When they asked the whereabouts of "Romy," he answered that he was
sleeping inside the bedroom. So the men went there and kicked the door open. Lim was then surprised as a gun was
pointed at his head. He questioned them on what was it all about, but he was told to keep quiet. The men let him and
Gorres sit on a bench. Lim was apprised of his Miranda rights. Thereafter, the two were brought to the PDEA Regional
Office and the crime laboratory. During the inquest proceedings, Lim admitted, albeit without the assistance of a
counsel, ownership of the two sachets of shabu because he was afraid that the police would imprison him. Like Gorres,
he was not involved in drugs at the time of his arrest. Unlike him, however, he was previously arrested by the PDEA
agents but was acquitted in the case. Both Lim and Gorres acknowledged that they did not have any quarrel with the
PDEA agents and that neither do they have grudges against them or vice-versa.

Rubenia, Lim's live-in partner and the mother of Gorres, was at her sister's house in Pita, Pasil, Kauswagan the night
when the arrests were made. The following day, she returned home and noticed that the door was opened and its lock
was destroyed. She took pictures of the damage and offered the same as exhibits for the defense, which the court
admitted as part of her testimony.

RTC Ruling

After trial, the RTC handed a guilty verdict on Lim for illegal possession and sale of shabu and acquitted Gorres for lack of
sufficient evidence linking him as a conspirator. The fallo of the September 24, 2013 Decision states:

WHEREFORE, premises considered, this Court finds that:

1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 11,
Article II of R.A. 9165 and is hereby sentenced to suffer the penalty of imprisonment ranging from twelve [12] years and
one [1] day to thirteen [13] years, and to pay Fine in the amount of Three Hundred Thousand Pesos [P300,000.00]
without subsidiary imprisonment in case of non-payment of Fine;

2. In Criminal Case No. 2010-1074, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 5, Article
II of R.A. 9165, and is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the Fine in the amount
of Five Hundred Thousand Pesos [P500,000.00].

3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is hereby ACQUITTED of the offense charged for
failure of the prosecution to prove his guilt beyond reasonable doubt. The Warden of the BJMP having custody of ELDIE
GORRES y Nave, is hereby directed to immediately release him from detention unless he is being charged of other
crimes which will justify his continued incarceration.[8]
With regard to the illegal possession of a sachet of shabu, the RTC held that the weight of evidence favors the positive
testimony of IO1 Orellan over the feeble and uncorroborated denial of Lim. As to the sale of shabu, it ruled that the
prosecution was able to establish the identity of the buyer, the seller, the money paid to the seller, and the delivery of
the shabu. The testimony of IO1 Carin was viewed as simple, straightforward and without any hesitation or prevarication
as she detailed in a credible manner the buy-bust transaction that occurred. Between the two conflicting versions that
are poles apart, the RTC found the prosecution evidence worthy of credence and no reason to disbelieve in the absence
of an iota of malice, ill-will, revenge or resentment preceding and pervading the arrest of Lim. On the chain of custody of
evidence, it was accepted with moral certainty that the PDEA operatives were able to preserve the integrity and
probative value of the seized items.

In so far as Gorres is concerned, the RTC opined that the evidence presented were not strong enough to support the
claim that there was conspiracy between him and Lim because it was insufficiently shown that he knew what the box
contained. It also noted Chemistry Report No. DTCRIM 196 & 197-2010, which indicated that Gorres was "NEGATIVE"
of the presence of any illicit drug based on his urine sample.

CA Ruling

On appeal, the CA affirmed the RTC Decision. It agreed with the finding of the trial court that the prosecution adequately
established all the elements of illegal sale of a dangerous drug as the collective evidence presented during the trial
showed that a valid buy-bust operation was conducted. Likewise, all the elements of illegal possession of a dangerous
drug was proven. Lim resorted to denial and could not present any proof or justification that he was fully authorized by
law to possess the same. The CA was unconvinced with his contention that the prosecution failed to prove the identity
and integrity of the seized prohibited drugs. For the appellate court, it was able to demonstrate that the integrity and
evidentiary value of the confiscated drugs were not compromised. The witnesses for the prosecution were able to testify
on every link in the chain of custody, establishing the crucial link in the chain from the time the seized items were first
discovered until they were brought for examination and offered in evidence in court. Anent Lim's defense of denial and
frame-up, the CA did not appreciate the same due to lack of clear and convincing evidence that the police officers were
inspired by an improper motive. Instead. the presumption of regularity in the performance of official duty was applied.

Before Us, both Lim and the People manifested that they would no longer file a Supplemental Brief, taking into account
the thorough and substantial discussions of the issues in their respective appeal briefs before the CA.[9] Essentially, Lim
maintains that the case records are bereft of evidence showing that the buy-bust team followed the procedure
mandated in Section 21(1), Article II of R.A. No. 9165.

Our Ruling

The judgment of conviction is reversed and set aside, and Lim should be acquitted based on reasonable doubt.

At the time of the commission of the crimes, the law applicable is R.A. No. 9165.[10] Section 1(b) of Dangerous Drugs
Board Regulation No. 1, Series of 2002, which implements the law, defines chain of custody as-

the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized
item shall include the identity and signature of the person who held temporary custody of the seized item, the date and
time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final
disposition.[11]
The chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its
admission into evidence.[12] To establish a chain of custody sufficient to make evidence admissible, the proponent needs
only to prove a rational basis from which to conclude that the evidence is what the party claims it to be.[13] In other
words, in a criminal case, the prosecution must offer sufficient evidence from which the trier of fact could reasonably
believe that an item still is what the government claims it to be.[14] Specifically in the prosecution of illegal drugs, the
well-established federal evidentiary rule in the United States is that when the evidence is not readily identifiable and is
susceptible to alteration by tampering or contamination, courts require a more stringent foundation entailing a chain of
custody of the item with sufficient completeness to render it improbable that the original item has either been
exchanged with another or been contaminated or tampered with.[15] This was adopted in Mallillin v. People,[16] where
this Court also discussed how, ideally, the chain of custody of seized items should be established:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded
by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would
include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into
evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness' possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions
taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the
chain to have possession of the same.[17]
Thus, the links in the chain of custody that must be established are: (1) the seizure and marking, if practicable, of the
illegal drug recovered from the accused by the apprehending officer; (2) the turnover of the seized illegal drug by the
apprehending officer to the investigating officer; (3) the turnover of the illegal drug by the investigating officer to the
forensic chemist for laboratory examination; and (4) the turnover and submission of the illegal drug from the forensic
chemist to the court.[18]

Seizure and marking of the illegal drug as well as the turnover by the apprehending officer to the investigating officer

Section 21(1), Article II of R.A. No. 9165 states:

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof[.][19]
Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No.
9165 mandates:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items.[20]
On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among other modifications, it essentially
incorporated the saving clause contained in the IRR, thus:
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and
confiscation, conduct a phyical inventory of the seized items and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an
elected public official and a representative of the National Prosecution Service or the media who shall be required to
sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall
be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That
noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures
and custody over said items.
In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe
admitted that "while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of
the evidence acquired and prevent planting of evidence, the application of said section resulted in the ineffectiveness of
the government's campaign to stop increasing drug addiction and also, in the conflicting decisions of the
courts."[21] Specifically, she cited that "compliance with the rule on witnesses during the physical inventory is difficult.
For one, media representatives are not always available in all comers of the Philippines, especially in more remote areas.
For another, there were instances where elected barangay officials themselves were involved in the punishable acts
apprehended. "[22] In addition, "[t]he requirement that inventory is required to be done in police station is also very
limiting. Most police stations appeared to be far from locations where accused persons were apprehended."[23]

Similarly, Senator Vicente C. Sotto III manifested that in view of the substantial number of acquittals in drug-related
cases due to the varying interpretations of the prosecutors and the judges on Section 21 of R.A. No. 9165, there is a
need for "certain adjustments so that we can plug the loopholes in our existing law" and "ensure [its] standard
implementation."[24] In his Co-sponsorship Speech, he noted:

Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international
syndicates. The presence of such syndicates that have the resources and the capability to mount a counter-assault to
apprehending law enforcers makes the requirement of Section 21(a) impracticable for law enforcers to comply with. It
makes the place of seizure extremely unsafe for the proper inventory and photograph of seized illegal drugs.

xxxx

Section 21(a) of RA 9165 needs to be amended to address the foregoing situation. We did not realize this in 2002 where
the safety of the law enforcers and other persons required to be present in the inventory and photography of seized
illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an immediate
retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be inventoried and
photographed has to include a location where the seized drugs as well as the persons who are required to be present
during the inventory and photograph are safe and secure from extreme danger.

It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted
either in the place of seizure or at the nearest police station or office of the apprehending law enforcers. The proposal
will provide effective measures to ensure the integrity of seized illegal drugs since a safe location makes it more
probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby reducing the
incidents of dismissal of drug cases due to technicalities.

Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid
or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and the
evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend the
phrase "justifiable grounds." There are instances wherein there are no media people or representatives from the DOJ
available and the absence of these witnesses should not automatically invalidate the drug operation conducted. Even
the presence of a public local elected official also is sometimes impossible especially if the elected official is afraid or
scared.[25]
We have held that the immediate physical inventory and photograph of the confiscated items at the place of arrest may
be excused in instances when the safety and security of the apprehending officers and the witnesses required by law or
of the items seized are threatened by immediate or extreme danger such as retaliatory action of those who have the
resources and capability to mount a counter-assault.[26]The present case is not one of those.

Here, IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic sachet of white substance, and a
disposable lighter. IO1 Carin also turned over to him the plastic sachet that she bought from Lim. While in the house, IO1
Orellan marked the two plastic sachets. IO1 Orellan testified that he immediately conducted the marking and physical
inventory of the two sachets of shabu.[27] To ensure that they were not interchanged, he separately marked the item
sold by Lim to IO1 Carin and the one that he recovered from his possession upon body search as BB AEO 10-19-10 and
AEO-RI 10-19-10, respectively, with both bearing his initial/signature.[28]

Evident, however, is the absence of an elected public official and representatives of the DOJ and the media to witness
the physical inventory and photograph of the seized items.[29] In fact, their signatures do not appear in the Inventory
Receipt.

The Court stressed in People v. Vicente Sipin y De Castro:[30]

The prosecution bears the burden of proving a valid cause for non-compliance with the procedure laid down in Section
21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance thereto in such a way that during
the trial proceedings, it must initiate in acknowledging and justifying any perceived deviations from the requirements of
law. Its failure to follow the mandated procedure must be adequately explained, and must be proven as a fact in
accordance with the rules on evidence. It should take note that the rules require that the apprehending officers do not
simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement
on the steps they took to preserve the integrity of the seized items. Strict adherence to Section 21 is required where the
quantity of illegal drugs seized is miniscule, since it is highly susceptible to planting, tampering or alteration of
evidence.[31]
It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the
illegal drug seized was not obtained due to reason/s such as:

(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the
inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or
any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts
sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected
public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of
the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and
urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from
obtaining the presence of the required witnesses even before the offenders could escape.[32]
Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos[33] requires:

It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible.
However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required
witnesses under Section 21 of RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution
must show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer
statement that representatives were unavailable without so much as an explanation on whether serious attempts were
employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse." Verily, mere
statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as
justified grounds for non- compliance. These considerations arise from the fact that police officers are ordinarily given
sufficient time - beginning from the moment they have received the information about the activities of the accused until
the time of his arrest - to prepare for a buy-bust operation and consequently, make the necessary arrangements
beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of
RA 9165. As such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also
convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given
circumstances, their actions were reasonable.[34]
In this case, IO1 Orellan testified that no members of the media and barangay officials arrived at the crime scene
because it was late at night and it was raining, making it unsafe for them to wait at Lim's house.[35] IO2 Orcales similarly
declared that the inventory was made in the PDEA office considering that it was late in the evening and there were no
available media representative and barangay officials despite their effort to contact them.[36] He admitted that there are
times when they do not inform the barangay officials prior to their operation as they. might leak the confidential
information.[37] We are of the view that these justifications are unacceptable as there was no genuine and sufficient
attempt to comply with the law.

The testimony of team-leader IO2 Orcales negates any effort on the part of the buy-bust team to secure the presence of
a barangay official during the operation:

ATTY. DEMECILLO:

xxxx

x x x Before going to the house of the accused, why did you not contact a barangay official to witness the
Q
operation?
A There are reasons why we do not inform a barangay official before our operation, Sir.

Q Why?
A We do not contact them because we do not trust them. They might leak our information.[38]
The prosecution likewise failed to explain why they did not secure the presence of a representative from the
Department the arresting officer, IO1 Orellan, stated in his Affidavit that they only tried to coordinate with the barangay
officials and the media, the testimonies of the prosecution witnesses failed to show that they tried to contact a DOJ
representative.

The testimonies of the prosecution witnesses also failed to establish the details of an earnest effort to coordinate with
and secure presence of the required witnesses. They also failed to explain why the buy-bust team felt "unsafe" in
waiting for the representatives in Lim's house, considering that the team is composed of at least ten (10) members, and
the two accused were the only persons in the house.

It bears emphasis that the rule that strict adherence to the mandatory requirements of Section 21(1) of R.A. No. 9165, as
amended, and its IRR may be excused as long as the integrity and the evidentiary value of the confiscated items are
properly preserved applies not just on arrest and/or seizure by reason of a legitimate buy-bust operation but also on
those lawfully made in air or sea port, detention cell or national penitentiary, checkpoint, moving vehicle, local or
international package/parcel/mail, or those by virtue of a consented search, stop and frisk (Terry search), search incident
to a lawful arrest, or application of plain view doctrine where time is of the essence and the arrest and/or seizure is/are
not planned, arranged or scheduled in advance.

To conclude, judicial notice is taken of the fact that arrests and seizures related to illegal drugs are typically made
without a warrant; hence, subject to inquest proceedings. Relative thereto, Sections 1 (A.1.10) of the Chain of Custody
Implementing Rules and Regulations directs:

A.1.10. Any justification or explanation in cases of noncompliance with the requirements of Section 21 (1) of R.A. No.
9165, as amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as
well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items. Certification or
record of coordination for operating units other than the PDEA pursuant to Section 86 (a) and (b), Article IX of the IRR of
R.A. No. 9165 shall be presented.[39]
While the above-quoted provision has been the rule, it appears that it has not been practiced in most cases elevated
before Us. Thus, in order to weed out early on from the courts' already congested docket any orchestrated or poorly
built up drug-related cases, the following should henceforth be enforced as a mandatory policy:

1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the
requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR.

2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or
explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value
of the seized/confiscated items.

3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the
investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case
for further preliminary investigation in order to determine the (non) existence of probable cause.

4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either
refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause
in accordance with Section 5,[40]
Rule 112, Rules of Court.

WHEREFORE, premises considered, the February 23, 2017 Decision of the Court of Appeals in CA-G.R. CR HC No. 01280-
MIN, which affirmed the September 24, 2013 Decision of Regional Trial Court, Branch 25, Cagayan de Oro City, in
Criminal Cases Nos. 2010-1073 and 2010-1074, finding accused-appellant Romy Lim y Miranda guilty of violating
Sections 11 and 5, respectively, of Article II of Republic Act No. 9165, is REVERSED and SET ASIDE. Accordingly, accused-
appellant Romy Lim y Miranda is ACQUITTED on reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from
detention, unless he is being lawfully held for another cause. Let an entry of final judgment be issued immediately.

Let a copy of this Decision be furnished the Superintendent of the Davao Prison and Penal Farm, B.E. Dujali, Davao del
Norte, for immediate implementation. The said Director is ORDERED to REPORT to this Court within five (5) days from
receipt of this Decision the action he has taken.

Let copies of this Decision be furnished to the Secretary of the Department of Justice, as well as to the Head/Chief of the
National Prosecution Service, the Office of the Solicitor General, the Public Attorney's Office, the Philippine National
Police, the Philippine Drug Enforcement Agency, the National Bureau of Investigation, and the Integrated Bar of the
Philippines for their information and guidance. Likewise, the Office of the Court Administrator
is DIRECTED to DISSEMINATE copies of this Decision to all trial courts, including the Court of Appeals.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

3. G.R. No. 133527-28 December 13, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JEANETTE (GINETTE) YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL. INSP. ADONIS ABETO, POL. OFFICER
MARIO LAMIS Y FERNANDEZ, DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ,
EDWIN DIVINAGRACIA, TEODY DELGADO, CESAR PECHA, CHARLES DUMANCAS (Acquitted), POL. OFFICER JOSE
PAHAYUPAN (Acquitted), VICENTE CANUDAY, JR. (Acquitted), accused, JEANETTE (GINETTE) YANSON-DUMANCAS,
POL. COL. NICOLAS TORRES, POL. INSP. ADONIS ABETO, POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR
GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO,
CESAR PECHA, accused-appellants.

MELO, J.:

Accused-appellants were charged with Kidnapping for Ransom with Murder under two Informations which pertinently
read:

CRIMINAL CASE NO. 94-15562

The undersigned hereby accuses JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS, (BOTH AS

PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL BY INDUCTION AND BY
DIRECT AND/OR INDISPENSABLE COOPERATION), POLICE INSPECTOR ADONIS C. ABETO, POLICE
OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE PAHAYUPAN, VICENTE CANUDAY, JR., DOMINADOR
GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY
DELGADO, ALL AS PRINCIPALS BY PARTICIPATION, CESAR PECHA, and EDGAR HILADO, BOTH AS
ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as follows:

That during the period beginning in the late morning of August 6, 1992 and ending the late evening of
the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating and concurring in a common
criminal intent and execution thereof with one another, save for the accessories, for the purpose of
extracting or extorting the sum of P353,000.00, did, then and there willfully, unlawfully, and feloniously,
to wit:
Acting upon the inducement of spouses Jeanette Yanson-Dumancas and Charles Dumancas, under the
direction cooperation and undue influence, exerted by P/Col. Nicolas M. Torres, taking advantage of his
position as the Station Commander of the Philippine National Police, Bacolod City Station, with the
direct participation and cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente
Canuday, Jr., Jose Pahayupan, Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin
Divinagracia, Teody Delgado, Jaime Gargallano, also taking advantage of their respective positions, and
Dominador Geroche, concurring and affirming in the said criminal design, with the use of motor vehicle
abduct, kidnap and detain one RUFINO GARGAR, JR. and shortly thereafter at around 11 o'clock in the
evening of August 7, 1993 (1992), failing in their aforesaid common purpose to extort money and in
furtherance of said conspiracy, with evident premeditation and treachery nocturnity and the use of
motor vehicle, did then and there shot and kill the said victim, while being handcuffed and blindfolded;
that accused Cesar Pecha and Edgar Hilado, with knowledge that said Gargar was victim of violence, did
then and there secretly bury the corpse in a makeshift shallow grave or the purpose of concealing the
crime of murder in order to prevent its discovery for a fee of P500.00 each; aforesaid act or acts has
caused damage and prejudice to the heirs of said victim, to wit:

P50,000.00 — as indemnity for death;

50,000.00 — actual damages;

300,000.00 — compensatory damages (lost income);

100,000.00 — moral damages;

50,000.00 — exemplary damages.

CONTRARY TO LAW.

CRIMINAL CASE NO. 94-15563

The undersigned hereby accused JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS (BOTH AS

PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL BY INDUCTION AND BY
DIRECTION AND/OR INDISPENSABLE COOPERATION), POLICE INSPECTOR ADONIS C. ABETO, POLICE
OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE PAHAYUPAN, VICENTE CANUDAY, JR., DOMINADOR
GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO B. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY
DELGADO, ALL AS PRINCIPALS BY PARTICIPATION, CESAR PECHA and EDGAR HILADO, BOTH AS
ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as follows:

That during the period beginning in the late morning of August 6, 1992 and ending the late evening of
the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines and within the jurisdiction of
this Honorable Court, above-named accused, conspiring, confederating and concurring in a common
criminal intent and execution thereof with one another, save for the accessories, for the purpose of
extracting or extorting the sum of P353,000.00, did, then and there willfully, unlawfully, and feloniously,
to wit:

Acting upon the inducement of spouse Jeanette Yanson-Dumancas and Charles Dumancas, under the
direction, cooperation and undue influence, exerted by P/Col. Nicolas M. Torres, taking advantage of his
position as the Station Commander of the Philippine National Police, Bacolod City Station, with the
direct participation and cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente
Canuday, Jr., Jose Pahayupan, Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin
Divinagracia, Teody Delgado, Jaime Gargallano, also taking advantage of their respective positions, and
Dominador Geroche, concurring and affirming in the said criminal design, with the use of motor vehicle
abduct, kidnap and detain one DANILO LUMANGYAO and shortly thereafter at around 11 o'clock in the
 evening of August 7, 1993 (1992), failing in their aforesaid common purpose to extort money and in
furtherance of said conspiracy, with evident premeditation and treachery nocturnity and the use of
motor vehicle, did then and there shot and kill the said victim, while being handcuffed and blindfolded,
that accused CESAR PECHA and EDGAR HILADO, with knowledge that said Lumangyao was victim of
violence, did then and there secretly bury the corpse in a makeshift shallow grave for the purpose of
concealing the crime of murder in order to prevent its discovery for a fee of P500.00 each; aforesaid act
or acts has caused damage and prejudice to the heirs of said victim, to wit:

P150,000.00 — as indemnity for death;

50,000.00 — actual damages;

300,000.00 — compensatory damages (lost income);

100,000.00 — moral damages;

P50,000.00 — exemplary damages.

CONTRARY TO LAW.

(pp. 1-3, Record

Vol. I-A)

All thirteen accused (excluding Edgar Hilado, who was then still at large) entered pleas of NOT GUILTY upon arraignment
conducted on February 14, 1994 (per Certificates of Arraignment, Record Vol. I-A, pp. 372-384). After a joint trial
(excluding accused Edgar Hilado, who upon arraignment on April 11, 1994, pleaded NOT GUILTY [Record, Vol. II, p. 866],
was tried separately), judgment was rendered acquitting Charles Dumancas, Police Officers Jose Pahayupan and Vicente
Canuday, Jr., but convicting the rest of the accused for the crime charged, to wit:

Wherefore, finding the first nine (9) Accused herein —

1. JEANNETTE (GINNETTE) YANSON-DUMANCAS

2. POL. COL. NICOLAS TORRES

3. POL. INSP. ADONIS ABETO

4. POL. OFFICER MARIO LAMIS Y FERNANDEZ

5. DOMINADOR GEROCHE Y MAHUSAY

6. JAIME GARGALLANO

7. ROLANDO R. FERNANDEZ

8. EDWIN DIVINAGRACIA

9. TEODY DELGADO and

10. CESAR PECHA

 GUILTY BEYOND REASONABLE DOUBT AS PRINCIPALS and CESAR PECHA as accessory in the two (2)
informations filed in these cases, JUDGMENT is hereby rendered against them, as follows:

1. In CRIMINAL CASE NO. 94-15562, each of the Accused charged as principal is hereby sentenced to
suffer the penalty of RECLUSION PERPETUA, with all the accessories of the law; to indemnify, jointly and
severally, the Heirs of Rufino Gargar Jr. in the amount of P50,000.00 as indemnity for death; P25,000.00
as actual damages; P300,000.00 for compensatory damages (lost income); P100,000.00 in moral
damages and P50,000.00 as exemplary damages; and to pay the cost. Accused CESAR PECHA who is
charged as an accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years four
(4) months and one (1) day of Prision Correccional as minimum to eight years and one day of Prision
Mayor as maximum and to pay one-tenth of the cost;

2. In CRIMINAL CASE NO. 94-15563, each of the Accused charged as principal is hereby sentenced to
suffer the penalty of Reclusion Perpetua, with all the accessories of the law, indemnify jointly and
severally, the Heirs of DANILO LUMANGYAO in the amount of P50,000.00 as indemnity for death;
P25,000.00 as actual damages; P100,000.00 as compensatory damages (lost income); P100,000.00 as
moral damages; P50,000.00 as exemplary damages; and to pay the cost. Accused CESAR PECHA who is
charged as an accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years four
(4) months and one (1) day of prision correccional as minimum to eight (8) years and one (1) day
of Prision Mayor as maximum and to pay one-tenth of the cost.

Accused CHARLES DUMANCAS, Police Officers JOSE PAHAYUPAN and VICENTE CANUDAY JR. are hereby
Acquitted of the crime charged for failure of the prosecution to prove their guilt beyond reasonable
doubt, with cost de officio.

SO ORDERED.

All ten accused filed their respective notices of appeal, and are now before us on review. After going through the
voluminous record of the case, the Court adopts the following summary of facts by the court a quo, to wit:

February 20, 1992

Jeanette Yanson Dumancas was swindled in a fake gold bar transaction losing P352,000 to Danilo
Lumangyao and his cohort.

10:30 A.M. August 5, 1992 present in the house of Rolando Fernandez were:

a) Dominador Geroche

b) Rolando Fernandez

c) Jaime Gargallano

d) Edwin Divinagracia

e) Teody Delgado

f) Mario Lamis and

g) Moises Grandeza
On this occasion Mario Lamis brought out the plan to abduct Danilo Lumangyao and Rufino Gargar, Jr.
because they swindled the Dumancas family.

4:30 P.M. August 5, 1992

The group of:

a) Dominador Geroche

b) Mario Lamis

c) Rolando Fernandez

d) Jaime Gargallano

e) Edwin Divinagracia

f) Teody Delgado

g) Moises Grandeza

went to the office of Col. Nicolas Torres at PNP Headquarters where they met the colonel who told them
that if you find these two people (referring to Lumangyao and Gargar) to bring and hide them at Dragon
Lodge Motel.

8:30 A.M., August 6, 1992

State witness Moises Grandeza went to the house of Helen Tortocion to invite Danilo Lumangyao and
Rufino Gargar Jr. to "Tinolahan Eatery" at Shopping Center Terminal but found only Gargar Jr., as
Lumangyao went to the house of a certain Bardot at BBB Avenue, this City.

Moises Grandeza together with Gargar Jr. proceeded to the house of Bardot where they found
Lumangyao and thereafter the three of them went to "Tinolahan Eatery".

9:00-10:00 A.M. August 6, 1992

The three arrived at "Tinulahan Eatery". Waiting for them were:

a) Dominador Geroche

b) Jaime Gargallano

c) Edwin Divinagracia

d) Rolando Fernandez

e) Teody Delgado; and

f) Mario Lamis

Then a) Fernandez b) Geroche and c) Lamis entered "Tinulahan" and handcuffed Lumangyao and Gargar.
Waiting in the red Toyota Land Cruiser (Plate No. 689) were:

a) Gargallano

b) Divinagracia; and

c) Delgado

10:30 A.M. August 6, 1992

Lumangyao and Gargar were brought to the Office of Jeanette at Ceres Compound on board red toyota
land cruiser by:

a) Moises Grandeza

b) Gargallano

c) Lamis

d) Geroche

e) Divinagracia

f) Delgado, and

g) Fernandez

It was there that a) Divinagracia and, b) Fernandez manhandled Lumangyao and Gargar. Jeanette then
investigated the two victims on the whereabouts of the money that they swindled from her and the two
answered that it was already spent.

It was then that Jeanette ordered Doming (Geroche) to take care of the two (Lumangyao and Gargar).

3:00 P.M. August 6, 1992

From Ceres Compound and while the group, together with the two victims, were already at Dragon
Lodge Motel, thereafter,

a) Abeto

b) Pahayupan, and

c) Canuday

arrived and investigated the two victims regarding the whereabouts of the gold bar and the two replied
that it was with Helen Tortocion.

4·:00 P.M. August 6, 1992

a) Moises Grandeza

b) Fernandez, and
 c) Geroche

went to the office of Col. Torres to inform him that Lumangyao and Gargar were already captured. So
Col. Torres ordered them to keep the two victims so that nobody would see them. After receiving this
instructions they went back to Dragon Lodge. Meanwhile, Geroche again interrogated the victims on
where the money was — if there was still any let and Geroche received the same negative reply.

Past 6:00 p.m. August 6, 1992

The group, with the two captives transferred to D'Hacienda Motel.

9:00 P.M. August 6, 1992

At D'Hacienda Motel, Jeanette and Charles Dumancas, together with Rose Ines arrived. Jeanette and
Rose Ines investigated the victims where they kept the money that they swindled and the two gave the
same reply that it was already gone. Jeanette then reiterated her order to Geroche to take care of the
two.

9:30 P.M. August 6, 1992

The group transferred to Moonlight Inn Motel.

3:00 A.M. August 7, 1992

The group transferred again to Casamel Lodge Motel.

10:00 A.M. August 7, 1992

The group returned to D'Hacienda Motel and it was there that the plan was pursued to liquidate the two
victims at 12:00 midnight.

The persons who conceived of this plan were:

a) Geroche, and

b) Fernandez

4:30 P.M. August 7, 1992

1) Canuday

2) Abeto

3) Dudero

4) Lesaca, and

5) Arollado

searched the residence of Helen Tortocion for the gold dust and simulated gold bar per search warrant
014-92 (Exh. "D") but the search was fruitless.
7:30 P.M. August 7, 1992

The group, including the victims, partook of supper which was charged to Roy Yanson.

Then a) Abeto

b) Canuday, and

c) Pahayupan

entered the room and asked Fernandez what they are going to do with the two victims to which
Fernandez, replied that he will be responsible for the two.

11:00 P.M. August 7, 1992

a) Geroche

b) Lamis

c) Fernandez, and

d) Moises Grandeza

rode on the red Toyota Land Cruiser to conduct Geroche to his house. The victims were left behind.

From his house Geroche took an armalite rifle and the group then went back to D'Hacienda Motel.

12:00 P.M. August 7, 1992

a) Fernandez, and

b) Lamis

blindfolded and handcuffed Lumangyao and Gargar (Exh. "A" and "A-1") and have them board a vehicle,
with

a) Gargallano the driver

b) Geroche sitting in front, and with

c) Moises Grandeza also seated inside.

From D'Hacienda Motel, the group rode on the red toyota land cruiser. They proceeded to Hda. Pedrosa
in Brgy. Alijis. When they arrived there the two victims were ordered to alight and sit by the side of the
road. Geroche then asked Moises Grandeza to hold the hands of Lumangyao and then Gargar behind
their backs. After that —

a) Gargallano was the first to shoot. He shot Gargar at the back of his head (Exh. K) using a baby
armalite. Then

b) Geroche followed suit by shooting Lumangyao with a .45 cal. Pistol at his right lower jaw (Exh. L).
Thereafter, the two dead bodies were loaded on board the land cruiser and brought to Hda. Siason
where Pecha and Hilado buried them in the shallow grave they dug.

August 8, 1992

In Sitio Cabalagnan were recovered

a) Three (3) empty shells of armalite rifle and one .45 cal. Empty shell (Exh. "G", "G-2")

In Hda. Siason were recovered

a) the dead bodies of Rufino Gargar, Jr. and Danilo Lumangyao

b) Both of the two victims hands were handcuffed (Exh. "A" and "A-1").

August 9, 1992

The same group again went to see Col. Torres in his office and reported the extermination of the two
and Col. Torres promptly gave the instruction that "you who are here inside, nobody knows what you
have done but you have to hide because the NBI are after you.

August 10, 1992

a) Lamis

b) Geroche

c) Fernandez

d) Divinagracia

e) Gargallano

f) Delgado, and

g) Moises Grandeza

went back to the office of Col. Torres and this time he told the group "to hide because the NBI are now
investigating".

4:00 P.M. August 12, 1992

The same group that liquidated Lumangyao and Gargar again went back to the office of Col. Torres
where they were asked by Col. Torres to escort him to Ceres Compound because he would like to
borrow money from Ricardo Yanson as Col. Torres said that he has huge debts to pay. Col. Torres was
able on this occasion, to meet Ricardo Yanson.

On this same day,

a) Moises Grandeza

b) Lamis, and
 c) Geroche

were picked up in a land cruiser by the driver of the Yansons' to go to the house of Fernandez where
Geroche will give the money to the group. Each member of the group, after the check, which was drawn
by Yanson, was encashed were given the amount of P1,700.00 each.

August 13, 1992

Nenita Bello went to the office of Col. Torres to plead for his help in regard to the death of her relatives
Lumangyao and Gargar but was promptly turned down by Colonel Torres with the curt remark that her
case was very difficult because it involves the "military" and some "big times".

The Sangguniang Panlungsod of Bacolod City also passed, on this day, Resolution No. 328, series of 1992
urging the National Bureau of Investigation (NBI) to conduct an investigation on the death of "salvage
victims" Danilo Lumangyao and Rufino Gargar, Jr. as soon as possible (Exh. "I").

September 24, 1992

The bodies of Rufino Gargar Jr. and Danilo Lumangyao were exhumed at Brgy. Buenavista Cemetery,
Balintawak, Escalante, Negros Occidental and autopsies were conducted (Exhs. "M" and "N") by Dr.
Ricardo Jaboneta, Medico Legal Officer of the NBI.

a) Found on the body of Rufino Gargar, Jr. (per examination report, Exh. "M") among others, were
ligature marks, wrist joint, right side (Exh. "M-2"), and

b) Gunshot wound (Exh. "M-1")

As to Danilo Lumangyao, the exhumation report (Exh. "N" disclose

a) Ligature marks, right wrist (Exh. "N-2") and among others, and

b) Gunshot wound (Exh. "N-1")

After the National Bureau of Investigation, Bacolod Office, conducted its investigation, the State
Prosecutors of the Department of Justice took over and the result were the filing of these two criminal
cases of Kidnapping with Murder against the above-named accused.

(pp. 73-85, Decision; pp. 202-

214, Rollo.)

After a thorough review of the factual findings of the trial court vis-à-vis the evidence on record, we find ourselves
unable to agree with the conclusions arrived at by the trial court convicting all 10 accused-appellants; rather, we concur
in the suggestion of the Solicitor General, that accused-appellants Jeanette Yanson-Dumancas and Police Inspector
Adonis Abeto should be acquitted. Too, by reason of his supervening death, accused-appellant Police Col. Nicolas Torres
is acquitted. The judgment of conviction of the rest of the accused-appellants is to be affirmed.

A. Jeanette (Ginette) Yanson-Dumancas

On the case of accused-appellant Jeanette Yanson-Dumancas (Jeanette, for short), the information charged her of the
crime of kidnapping for ransom with murder as principal by induction together with her husband, Charles, who was
found by the trial court not guilty of the crime.
Art. 17, Revised Penal Code, provides:

Art. 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it.

3. Those who cooperate in the commission of the offense by another act without which it would not
have been accomplished.

What the Court now has to examine is whether or not sufficient evidence was adduced by the prosecution to prove
beyond reasonable doubt that Jeanette indeed performed any of the following acts: (a) directly forcing the killers to
commit the crime, or (b) directly inducing them to commit the crime.

There are 2 ways of directly forcing another to commit a crime, namely: (i) by using irresistible force, or (ii) by causing
uncontrollable fear. Upon review of the testimony of all the witnesses of the prosecution, we find nothing to conclude
that Jeanette used irresistible force or caused uncontrollable fear upon the other accused-appellants. From the factual
findings of the trial court, it is patent that the plan to abduct and liquidate the victims was hatched on August 5, 1992
(10:30 A.M.) without Jeanette's involvement or participation whatsoever (p. 202, Rollo). The record is entirely bereft of
any evidence to show that Jeanette directly forced the participants of the said meeting to come up with such plan, by
either using irresistible force or causing uncontrollable fear. The only basis relied upon by the trial court in arriving at its
conclusion that Jeanette is guilty of the crime as principal by inducement, is the supposed "commands" or order given by
her to accused-appellant Dominador Geroche on two occasions (one inside the Ceres Compound: p. 205, Rollo, and the
other in D'Hacienda Motel: p. 207, Rollo). By no stretch of the imagination may these so-called "commands", standing
alone, be considered as constituting irresistible force or causing uncontrollable fear.

Likewise, there are 2 ways of directly inducing another to commit a crime, namely: (i) by giving a price, or offering
reward or promise, and (ii) by using words of command. The Court finds no evidence, as did the trial court, to show that
Jeanette offered any price, reward, or promise to the rest of accused-appellants should they abduct and later kill the
victims in this case. If at all, the prosecution witness mentioned the name of Ricardo Yanson as having lent money to
accused-appellant Col. Torres to be used for paying the latter's debts or obligations. But definitely, no money ever came
from Jeanette herself. The trial court's surmise that the money delivered by Ricardo Yanson to the group was with the
knowledge and approval of Jeanette in completely baseless.

The only matter left for consideration is whether the order supposedly given by Jeanette to accused-appellant Geroche
"to take care of the two" constitutes words of command which may be considered sufficient basis to convict Jeanette as
principal by inducement.

In order that a person may be convicted as principal by inducement, the following must be present: (1) the inducement
be made with the intention of procuring the commission of the crime, and (2) such inducement be the determining
cause of the commission by the material executor (U.S. vs. Indanan, 24 Phil. 203 [1913]). To constitute inducement,
there must exist on the part of the inducer the most positive resolution and the most persistent effort to secure the
commission of the crime, together with the presentation to the person induced of the very strongest kind of temptation
to commit the crime.

By the foregoing standards, the remark of Jeanette to "take care of the two" does not constitute the commandrequired
by law to justify a finding that she is guilty as a principal by inducement. As we held in U.S. vs. Indanan, supra, "a chance
word spoken without reflection, a wrong appreciation of a situation, an ironical phrase, a thoughtless act, may give birth
to a thought of, or even a resolution to crime in the mind of one for some independent reason predisposed thereto
without the one who spoke the word or performed the act having any expectation that his suggestion would be
followed or any real intention that it produce the result. In such case, while the expression was imprudent and the
results of it grave in the extreme, he (the one who spoke the word or performed the act) would not be guilty of the
crime committed" (p. 219).

Furthermore, the utterance which was supposedly the act of inducement, should precede the commission of the crime
itself (People vs. Castillo, July 26, [1966]). In the case at bar, the abduction, which is an essential element of the crime
charged (kidnapping for ransom with murder) has already taken place when Jeanette allegedly told accused-appellant
Geroche to "take care of the two." Said utterance could, therefore, not have been the inducement to commit the crime
charged in this case.

Most importantly, it was duly proven by no less than the prosecution witness himself, Moises Grandeza, that the
intention of Jeanette was but to allow the law to its course, when in his cross-examination, the following transpired:

ATTY. PARREÑO:

Q. And according to your testimony this morning, Jeanette Dumancas said, what more
can we do that swindling transpired four months ago, definitely that money could
nowhere be around. Would you confirm that you testified that this morning before this
Court? Is that correct?

A. Yes, sir.

Q. Mr. Witness, this is very important. Please make a vivid recall. When Danilo
Lumangyao made that answer that the money was not around and Jeanette Dumancas
said what's the use, the money is now nowhere to be found as four months have
already transpired, did not Jeanette Dumancas tell Doming: "Doming, bring these two to
the PC or police and I will call Atty. Geocadin so that proper cases could be filed against
them?" Kindly make a recall on that.

A. Yes, sir.

(pp. 54-55, tsn Feb. 14,

1994)

Thus, even the veracity of the allegation that Jeanette uttered the words: "take care of the two" is put to some
reasonable doubt by the prosecution witness himself. The remark, if made at all, cannot by any stretch of the
imagination, be basis for the conviction of Jeanette.

People vs. Manambit (271 SCRA 344 [1997]) finds apt application, to wit:

In criminal law, the quantum of evidence for conviction is that which produces moral certainty in an
unprejudiced mind that the accused is guilty beyond reasonable doubt, But, if the evidence is susceptible
of two interpretations, one consistent with the innocence of the accused and the other consistent with
his guilt, the accused must be acquitted.

B. Police Inspector Adonis Abeto

With respect to accused-appellant Abeto, we quote with approval the observations of the Solicitor General as follows:

Police Inspector Adonis C. Abeto's appeal is meritorious. Be it remembered that Abeto's only
participation was to serve the search warrant on Helen Tortocion's residence and the subsequent
interrogation of the two victims at the Hacienda Motel. He was never part of the conspiracy to abduct
and liquidate the two victims. He is similarly situated as that of Canuday and Pahayupan.

The trial court, in acquitting Canuday and Pahayupan had this to say:

The evidence against Officer CANUDAY, JR. shows that in the afternoon of August 6,
1992, together with Officers ABETO and PAHAYUPAN, they went to Dragon Lodge Motel
to investigate LUMANGYAO and GARGAR, JR. as to the whereabouts of the gold (fake)
bar used in swindling JEANE'TTE. The two captives answered that it is with HELEN
TORTOCION. A subsequent search of Tortocion's house led by Officer ABETO yielded no
fake gold bar. Meanwhile, in the evening of August 7, 1992, Officers ABETO, CANUDAY,
JR., and PAHAYUPAN showed up at D'Hacienda Motel to inquire from FERNANDEZ what
he is going to do with the two.

Like Officer Pahayupan, his being in the company of Officers Abeto, on the two
occasions can not give rise, to without proof of previous agreement, a conspiracy. Thus,
being present at the scene of the crime is not by itself sufficient to establish conspiracy,
as already averted to previously. So does mere companionship.

After due consideration of accused-appellant Abeto's constitutional right to the presumption of innocence, coupled with
the presumption of regularity in the performance of his official functions having simply followed the order of his
superior officers, much is left to be desired before the Court can sustain the trial court's conviction of accused-appellant
Abeto. The two presumptions negate the inadequate proof adduced against accused-appellant Abeto, who must
perforce be acquitted, in much the same manner that accused Canuday, Jr. and Pahayupan, who being similarly situated,
were cleared and absolved.

C. Police Col. Nicolas M. Torres

As for accused-appellant Col. Torres, who passed away during the pendency of this appeal, the following rule laid down
by this Court in People vs. Bayotas (236 SCRA 239 [1994]) applies:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the
civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the
accused prior to final judgment terminates his criminal liability and only the civil liability directly arising
from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may
also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates
these other sources of obligation from which the civil liability may arise as a result of the same act or
omission:

a) Law

b) Contracts

c) Quasi-contracts

d) xxx xxx xxx

 e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may
be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985
Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the
executor/administrator of the estate of the accused, depending on the source of obligation upon which
the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file a separate civil action
by prescription, in cases where during the prosecution of the criminal action and prior to its extinction,
the private-offended party instituted together therewith the civil action. In such case, the statute of
limitations on the civil liability is deemed interrupted during the pendency of the criminal case,
conformably with provisions of Article 1155 of the Civil Code, that should thereby avoid any
apprehension on possible privation of right by prescription.

With the application of the above set of rules to accused-appellant Torres, we hold that his death extinguished his
criminal liability and the civil liability solely based thereon. Accordingly, the appeal of accused-appellant Torres is
forthwith dismissed, such dismissal having the force and effect of an acquittal.

D. Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime Gargallano, Rolando R.
Fernandez, Edwin Divinagracia, Teody Delgado, and Cesar Pecha

Now, in regard to the other accused-appellants, after a careful review of the evidence, we find the same sufficient to
affirm their conviction.

These accused-appellants assail the credence given by the trial court to the eyewitness account of Moises Grandeza.
Even after a thorough perusal of their main appellants' brief (pp. 327-498, Rollo), plus the separate briefs of accused-
appellants Geroche (pp. 1453-1627) and Pecha (pp. 828-1009, Rollo), we find no cogent reason to depart from the well
settled rule that when it comes to the issue of credibility of witnesses, the factual findings of the trial court is generally
accorded great weight. In People vs. Tañedo (266 SCRA 34 [1997]) the Court had occasion to reiterate the ruling that
findings of fact of the trial court pertaining to the credibility of witnesses command great respect since it had the
opportunity to observe their demeanor while they testified in court. The briefs of accused-appellants Lamis, et al. are
replete with generalities and legal principles relating to the issue, but are utterly wanting in relevant particulars which
may be the basis to rule that indeed, the trial court erred in lending full credence to the testimony of witness Grandeza
on the matter. As held in People vs. Ramirez 266 SCRA 335 [1997]), 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.

In an attempt to buttress the contention that witness Grandeza's testimony should not have been given credence by the
court a quo, accused-appellants referred to supposed inconsistencies between Grandeza's sworn statements before
investigators vis-à-vis his testimony in court (pp. 349-359, Rollo; and 1465-1468, Rollo). The Court, however, is not
impressed. This will not be the first occasion for us to hold that discrepancies between the statements of the affiant in
his affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parteaffidavits are
generally incomplete — affidavits are generally subordinated in importance to open court declarations (People vs.
Padao, 267 SCRA 64 [1997]). A contradiction between a witness' affidavit and his testimony in open court may almost be
explained by the fact that, being taken ex parte, an affidavit is often incomplete and inaccurate, sometimes from partial
suggestions, and sometimes from the want of suggestions and inquiries (Sumalpong vs. Court of Appeals, 268 SCRA 764
[1997]). Grandeza's perceived failure to mention anything in his 3 affidavits pertaining to the supposed meetings where
the criminal plot was hatched, does not necessarily render his testimony in court unworthy of credit.

In his brief, accused-appellant Geroche cites Grandeza's failure to identify one of their co-accused, Charles Dumancas, in
open court, and the variance on the alleged instructions given by Jeanette, and the failure by Grandeza to mention the
supposed meetings in his previous affidavits, as grounds to totally disregard Grandeza's entire testimony for being
unworthy of credence (pp. 1461-1469, Rollo). Indirectly, accused-appellant Geroche wants this Court to apply the
maxim falsus in uno, falsus in omnibus. In this regard, we held in People vs. Pacis (130 SCRA 540 [1984]):

The maxim of "falsus in uno falsus in omnibus," however, is not a positive rule of law. Neither is it an
inflexible one of universal application. If a part of a witness' testimony is found true, it cannot be
disregarded entirely. The testimony of a witness may be believed in part and disbelieved in part.

Also in People vs. Li Bun Juan (17 SCRA 934 [1966]) we ruled:

. . . In this connection it must be borne in mind that the principle falsus in uno falsus in
omnibus is not an absolute one, and that it is perfectly reasonable to believe the
testimony of a witness with respect to some facts and disbelieve it with respect to other
facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with
approval by the Court of Appeals from 1 Moore on Facts, p. 23:

18. Testimony may be partly credited and partly rejected. — Trier of facts are not bound
to believe all that any witness has said; they may accept some portions of his testimony
and reject other portions, according to what seems to them, upon other facts and
circumstances to be the truth . . . Even when witnesses are found to have deliberately
falsified in some material particulars, the jury are not required to reject the whole of
their uncorroborated testimony, but may credit such portions as they deem worthy of
belief.
The grounds relied upon by accused-appellant Geroche do not, therefore, constitute cogent reasons to discredit the
testimony of eyewitness Grandeza in its entirety.

As regards accused-appellant Geroche's defense of alibi, it is settled that alibi cannot prevail over positive identification
(People vs. Garma, 271 SCRA 517 [1997]). Being easy to fabricate and difficult to disprove, alibi cannot prevail over and
is worthless in the face of the positive identification of the accused-appellant (People vs. Datun, 272 SCRA 380 [1997]).
Besides, the record is bereft of strong and convincing evidence that accused-appellant could not have been at the scene
of the crime because the certification proffered in support thereof stated that he was in Mt. Calandog only after the
commission of the crime. And, as aptly stated by the Solicitor General in the People's brief, "the trial court expressed
puzzlement why this supposed fact was not mentioned in his July 3, 1993 affidavit . . . The first impulse of an innocent
man when accused of a wrongdoing is to express his innocence at the first opportune time. The People can only
conclude that Geroche's defense of alibi is but an afterthought" (p. 1723, Rollo).

As to accused-appellant Cesar Pecha's case, the Court finds it difficult to believe that he had no knowledge that the 2
victims he was burying were victims of violence. The deceased were surely bloodied from their gunshot wounds and
were in fact still handcuffed when exhumed from their shallow grave. It becomes almost impossible for accused-
appellant Pecha not to at least, entertain doubts as to the absence of foul play in this case. He is thus guilty as an
accessory to the crime committed under Paragraph 2, Article 19, of the Revised Penal Code, to wit:

Art. 19. Accessories. — Accessories are those who, having knowledge of the commission of the crime,
and without having participated therein, either as principals or accomplices, take part subsequent to its
commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the crime;

2. By concealing or destroying the body of the crime or the effects or instruments thereof, in order to
prevent its discovery;

3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the
accessory acts with abuse of his public functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to habitually
guilty of some other crime.

All told, there are only reasons to affirm, and none to reverse, the trial court's conviction of accused-appellants Pol.
Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime Gargallano, Rolando R. Fernandez, Edwin
Divinagracia, and Teody Delgado as principals by direct participation of the crime of kidnapping for ransom with murder,
and that of Cesar Pecha as accessory thereto.

Under Article 267 of the Revised Penal Code, when the crime of kidnapping is committed for the purpose of extorting
ransom from the victims, the penalty is death. However, since the crime was committed before the re-imposition of the
death penalty, only reclusion perpetua is imposable upon all the accused-appellant found guilty of the crime as
principals. Accused-appellant Pecha's penalty, as accessory is 2 degrees lower, which is prision mayor. Applying the
indeterminate sentence law, the penalty to be imposed is 6 months and 1 day (the minimum of prision correccional), as
minimum, up to 8 years (within the minimum period of prision mayor), as the maximum.

On the civil liabilities, accused-appellants who are herein convicted of the crime as principals are held solidarily liable for
the amount of P50,000.00 to the heirs of each of the victims, as indemnity for their death. The amount of P50,000.00,
each, by way moral damages and P25,000.00, each, as exemplary damages are already deemed sufficient. Accused-
appellant Cesar Pecha is held liable for one-tenth of the above amounts. The appealed judgment is silent as to any
justification for the other damages awarded and can therefore not be sustained on appeal.

WHEREFORE, accused-appellants JEANETTE YANSON-DUMANCAS and ADONIS ABETO are hereby ACQUITTED and
forthwith ordered released from detention unless there may be reason for their further detention on other criminal
cases. The case and appeal of NICOLAS TORRES is DISMISSED by reason of his death. The convictions of all the other
accused-appellants for each case filed are AFFIRMED except for the modification that accused-appellant CESAR PECHA is
sentenced for each case to an indeterminate prison term of six (6) months and one (1) day of prision correccional, as
minimum up to eight (8) years of prision mayor, as maximum. Joint and several civil liability for the accused-appellants
found guilty as principals, is reduced to P50,000.00 for each case, as indemnity for the death of each victim, P50,000.00
for each case, by way moral damages, and P25,000.00 for each case, by way of exemplary damages. The civil liability of
accused-appellant Cesar Pecha is maintained at one-tenth of the above amount.

No special pronouncement is made as to costs.

SO ORDERED.
 THIRD DIVISION

4. [G.R. No. 153911. December 10, 2004]

MELANIO MALLARI y LIBERATO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
PANGANIBAN, J.:

To warrant conviction based on circumstantial evidence, the totality of the circumstances must eliminate beyond
reasonable doubt the possibility of innocence; otherwise, the accused must be acquitted.

The Case

Before us is a Petition for Review[1] on Certiorari under Rule 45 in relation to Rule 125 of the Rules of Court, seeking
to reverse, set aside, nullify and/or modify the December 18, 2001 Decision[2] of the Court of Appeals (CA) in CA-GR CR
No. 18051. The dispositive portion of that Decision states:

WHEREFORE, foregoing premises considered, the decision appealed from is MODIFIED. Accused-appellants Melanio
Mallari and Zaldy Bontia, as well as Leonardo Bontia are found guilty of Attempted Murder punishable under Article 248
in relation to Article 6 of the Revised Penal Code for which they are SENTENCED to four (4) years and two (2) months
of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum. The award with respect to damages
and costs stand.[3]

In its May 14, 2002 Resolution,[4] the CA denied petitioners Motion for Reconsideration of the assailed Decision.

The Facts

Version of the Prosecution

The factual background of the case, as related by the Court of Appeals[5] based on prosecution evidence, is as follows:

The records show that private complainant Erlinda Boyose was a teacher at the Bustamante High School, Davao City
from 1977 up to 1989. At the start, she had a good working relationship with the school principal, appellant Melanio
Mallari. However, their relationship turned sour when she began to question appellant Mallari on alleged unaccounted
school funds.

On June 29, 1989 at about 9:00 oclock in the morning, while Boyose was at the Guidance Office, a man approached her
and asked if he can still enroll his nephew. As enrollment was already closed, she advised the man to see Mallari, who is
the school principal.

Thereafter, Boyose went to her classroom. About twenty minutes later, the man approached her again. Meeting him by
the door, she asked the man if he was able to talk to Mallari. The man answered that the principal was not in his office.
So, she advised the man to just return the following day.

In the afternoon, Boyose rode on a jeepney bound for Sasa, Davao. She observed that the man who talked to her in the
morning was also in the same jeepney. She then inquired from him if he was able to talk to the principal regarding the
enrollment of his nephew but the man just ignored her.

While they were near Km. 13, Panacan, Davao City, the said man drew and pointed a gun at Boyoses temple. Boyose
heard two successive clicking sounds of the gun but it did not fire. She heard the man utter in the Cebuano dialect, Unsa
man ni, dili man ni moboto, meaning Whats this, this will not fire. She then grabbed the gun and grappled for its
possession. But she failed. Eventually, she was able to get out of the jeepney and ran away but the man followed her
and shot her repeatedly.

Boyose was hit in the lower mouth and at her back. She shouted for help. A man helped her and brought her to the San
Pedro Hospital where she was treated and confined.

Policeman Remo Pagal of the Sasa Police Station was one of those who went to the crime scene on June 29, 1989 to
investigate. But nothing came out of it. He was only able to get the description of the gunman the following day when he
interviewed the victim at the hospital.

The police investigators were able to get the lead when a certain Andy Magdadaro went to the Sasa Police Station and
told Policeman Pagal that he knew something about the shooting of Erlinda Boyose. He told the said police investigator
that he was asked by one Edwin Amparado to kill Boyose but the plan was not carried out. He pointed to accused-
appellant Zaldy Bontia as the man who hired Amparado to look for a triggerman.

Thus, Edwin Amparado was picked up by the police. While in the police station where he was brought, he told the police
investigators that in one occasion, he went to the house of appellant Mallari and the latter asked him to kill Boyose who
used to be his neighbor at Doa Pilar Village but the same did not push thru. He later offered this job to Andy Magdadaro
who was his neighbor in Agdao. They talked about the plan to kill Boyose and Magdadaro was only waiting for his go-
signal. At the police station, he executed an affidavit regarding the offer of Mallari to kill Boyose.

On August 1, 1989, at around 3:00 p.m., Pagal together with other policemen from the Sasa Police Station arrested
appellant Zaldy Bontia near the house of accused-appellant Mallari. Zaldy allegedly admitted participation in the
incident and implicated his brother Leonardo Bontia as the gunman. The police lost no time in going to Asuncion, Davao
del Norte to arrest Leonardo Bontia.

Leonardo Bontia was brought to the Sasa Police Station at about 2:00 p.m. of August 2, 1989. Later that day, a police
line-up was conducted and Boyose identified accused Leonardo Bontia as the gunman. She likewise identified accused-
appellant Zaldy Bontia to be the constant companion and protg of accused-appellant Mallari.

When the custodial investigation was about to start, the Bontia brothers were apprised by police investigators Anastacio
Naive of their rights under the Constitution. When asked by Naive if they had a lawyer to assist them, they told him that
they had none. Naive then stopped the investigation and called the PAO office for assistance. At around 5:00 p.m. on
that day, Atty. Jonathan Jocum,**** a PAO lawyer arrived. Pfc. Naive then asked the Bontia brothers if they wanted to be
represented by Atty. Jocum and they said they are agreeable.
During the custodial investigation, Leonardo Bontia admitted to be the gunman. He pointed to appellant Mallari as the
one who hired him to kill Boyose. On the [other] hand, Zaldy Bontia admitted to have been hired by Mallari to look for a
gunman to kill Erlinda Boyose and that he was the one who recommended to Mallari his brother Leonardo Bontia to do
the job for a fee.

Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged by Asst. City Prosecutor Jose Emmanuel
M. Castillo of the crime of Frustrated Murder, in an Information alleging

That on or about June 29, 1989, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the
above-mentioned accused Melanio Mallari, directly interested in the death of Erlinda P. Boyose, conspiring,
confederating and helping one another, accused Melanio Mallari induced his co-accused Leonardo Bontia and Zaldy
Bontia, the latter convincing his brother Leonardo Bontia of the plan to kill said Erlinda P. Boyose by giving price and/or
offering a reward to kill said Erlinda P. Boyose and which price and/or offer was accepted by said Leonardo Bontia and
Zaldy Bontia; that in pursuance of said conspiracy said accused Leonardo Bontia, with treachery and evident
premeditation, willfully, unlawfully and feloniously assaulted, and shot with a caliber 22 Magnum homemade revolver
and hit said Erlinda Boyose, thereby inflicting upon her the following, to wit:

AVULSION. LOWER LIP AND NAPE SECONDARY TO GUNSHOT WOUND WITH DISPLACEMENT OF TEETH ON MANDIBLE;
FOREIGN BODY, G-4-5 LEVEL which injuries would ordinarily cause the death of the said Erlinda Boyose, thus performing
all the acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not
produce it by reason of causes independent of their will, that is the timely shout and cry for help of Erlinda Boyose that
as a result of which immediate assistance was had from a member of a coast guard and by the timely and able medical
assistance rendered to the said Erlinda Boyose which prevented her death.[6]

During their arraignment,[7] all the accused pleaded not guilty. Thereafter, herein Petitioner Mallari moved for a
separate trial, which was granted by the trial court in its Order dated September 18, 1990.
In his separate trial, Mallari did not present evidence to establish his innocence or to refute the prosecutions evidence
against him. Instead, he moved for dismissal by way of demurrer to evidence which, however, the trial court denied in its
Order dated July 2, 1992. Thereafter, although given ample time and granted numerous postponements over about a
year, petitioner failed to present any witness in his favor.
Even in its Memorandum, the defense did not present its version of facts.

Ruling of the Trial Court

After evaluating the evidence on record, the RTC concluded that there was conspiracy among the three accused,
although Leonardo Bontia was alone when he shot Erlinda Boyose. It held herein Petitioner Mallari liable as principal by
inducement, Leonardo Bontia as principal by direct participation, and Zaldy Bontia as principal by indispensable
cooperation, based on the following circumstances supposedly establishing their complicity:

1. Accused Mallari has an axe to grind against victim Boyose therefore, has an interest of silencing her because of her
persistent inquiries regarding the use or misuse of school funds under the custody of Mallari as principal of Bustamante
Barangay High School. This is the motive for the shooting of Erlinda Boyose.

2. The contact man Zaldy Bontia is beholden to Melanio Mallari being a protg and a man Friday of the latter who
exercised moral ascendancy considering that he promised Zaldy a steady government job and have been extending cash
advances in the form of allowances to tide him over till such time that he can receive a regular salary from the
government.

3. Leonardo Bontia is the older brother of Zaldy who at that time the job was offered to him by Mallari to kill Boyose was
in dire need of money having eight (8) children and wife to support.
4. Leonardo Bontia when confronted by the victim at the police station readily admitted he shot Erlinda Boyose because
of the money he hopes to receive from Mallari afterwards.

5. Zaldy Bontia gave P900.00 to Leonardo Bontia which came from Mallari so Leonardo can hide.

6. That Zaldy Bontia likewise confessed of his participation of the crime after being confronted by the victim at the police
station.

7. Both Leonardo and Zaldy Bontia voluntarily executed an extra-judicial statement regarding their complicity to the
crime.

8. A letter marked exh. I addressed to the victim Erlinda Boyose which clearly came from Leonardo Bontia because it
contained narration of events anent the crime and full of explicit details which only the author of the shooting has
personal knowledge of and asking for forgiveness.[8]

Thus, the RTC disposed as follows:

WHEREFORE, the prosecution having established the guilt of accused Melanio Mallari as principal by inducement,
Leonardo Bontia as principal by direct participation and Zaldy Bontia as principal by indispensable cooperation beyond
reasonable doubt, the court finds the aforesaid three accused guilty of the crime of frustrated murder as charged in the
information. They are hereby sentenced to suffer the indeterminate penalty of 4 years 2 months and 20 days of prision
correccional as the minimum to 11 years 6 months and 21 days of prision mayor as the maximum and to solidarily
indemnify the victim Erlinda Boyose in the amount of P15,000.00 representing loss of income, P8,000.00 representing
hospital and medical expenses, P20,000.00 as attorneys fees and P50,000.00 as moral damages and to pay the cost.[9]

Ruling of the Court of Appeals

On appeal, the CA essentially upheld the findings and conclusions of the trial court, except as to the stage of the crime
committed.
The appellate court was convinced that petitioner was the one who had induced the Bontia brothers to kill Boyose,
despite the absence of direct evidence showing his participation in the crime charged. It ratiocinated that the accused
could be convicted on the basis of circumstantial evidence. There was more than one circumstance, the facts from which
the inferences were derived had been proven, and the combination of all the circumstances was such as to produce a
conviction beyond reasonable doubt.
It further held that, in the separately held trial of petitioner, there was no need for the prosecution to offer the
evidence adduced during the trial of the Bontia brother[s,] considering that only one criminal Complaint had been filed
against all the accused. Moreover, the issue could not be raised for the first time on appeal.
Hence, as stated earlier, the CA modified the trial courts disposition and convicted the accused-appellants of
attempted murder.
This Petition[10] was filed only by the alleged mastermind, Melanio Mallari.

Issues

In his Memorandum, petitioner submits the following issues for the Courts consideration:
I. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA
Resolution [are in] accord with the circumstantial evidence rule and the controlling jurisprudence thereon;
 II. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA
Resolution, upholding the trial courts admission of an irrelevant, immaterial and improper evidence (coming
from Edwin Amparado) which was among the basis for conviction was in accordance with law and
jurisprudence;
III. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA
Resolution, correctly sustained the trial courts consideration of an evidence given in a separately conducted
trial (not as against the petitioner) which was among the basis for conviction; and
IV. Whether the questioned CA Decision and the refusal by the Court of Appeals to reconsider it in its CA
Resolution, which failed to tackle all the issues raised on appeal was consistent with due process.[11]
In brief, the issues raised before this Court will be discussed seriatim as follows: (1) whether the trial and the appellate
courts erred in taking cognizance of evidence given in the separate trial of petitioners co-accused; (2) whether there was
sufficient circumstantial evidence to establish petitioners guilt beyond reasonable doubt; and (3) whether the Court of
Appeals failed to accord due process to petitioner.

This Courts Ruling

The Petition is meritorious. The prosecution failed to adduce the quantum of evidence needed for a criminal
conviction.

First Issue: Evidence Proffered in Separate Trial

Petitioner alleges that the trial and the appellate courts convicted him on the basis mainly of evidence adduced at
the separately held trial of his co-accused. He submits that absent such evidence, there would have been no sufficient
proof to establish his guilt beyond reasonable doubt.
In its Memorandum, the Office of the Solicitor General (OSG) simplistically contends that in the trial against
petitioner, there was no need to offer anew the evidence separately proffered against the Bontias, because the case [filed
against them] involved only one case number.[12] Respondent fails to cite jurisprudence in support of such logic or to give
even a semblance of a sound rationale therefor.
As a rule, a court should not take judicial notice of evidence presented in other proceedings, even if these have been
brought before it or have been heard by and are actually pending before it. This rule is especially true in criminal cases, in
which the accused have the constitutional right to confront and cross-examine the witnesses presented against
them.[13] Moreover, when a separate trial is granted, the testimony of the accused imputing the crime to the co-accused
is not admissible against the latter, who has had no opportunity to cross-examine the witnesses.[14]
Parenthetically, the object of conducting a separate trial would be rendered naught if evidence proffered at the trial
of one of the accused would be considered likewise adduced in the distinct trial of the other accused. What then would
be the rationale for requesting and being granted separate trial? While the grant of separate trials for persons jointly
accused of an offense is discretionary upon the court, the motions therefor are usually found meritorious when
antagonism is apparent in the respective defenses of the accused.[15]
In the case before us, petitioners co-accused -- Zaldy and Leonardo Bontia -- executed, prior to trial, their respective
extrajudicial confessions admitting their complicity in the crime charged and implicating petitioner as the mastermind. On
the other hand, in denying their accusations, petitioner stood his ground and refused to execute a statement. Precisely,
their antagonistic defenses must have impelled him to seek, and the trial court to grant him, a separate trial.
Records show, however, that most of the prosecution witnesses presented during the trial of the Bontias were
likewise presented during the separate trial of petitioner. Testifying against him on December 20, 1990, was Pfc. Danilo
Carvajal. The latter said that, as police investigator of the Sasa Patrol Station, he had conducted an investigation of the
shooting incident involving Erlinda Boyose, leading to the arrest of Zaldy and Leonardo Bontia and Melanio Mallari. He
had allegedly taken the supposed extrajudicial confession of Leonardo Bontia who, after being apprised of his
constitutional rights, voluntarily executed his Sworn Statement in the presence of an inquest lawyer of the Public
Attorneys Office (PAO).[16]
On the same day, Atty. Jonathan Jocom testified that he was the PAO lawyer who had assisted the Bontias while each
of them was under custodial investigation on August 2, 1989; that prior to their investigation, he had apprised them of
their constitutional rights to counsel and not to be compelled to make any statement against their interests; and that
despite his repeated warnings about the negative consequences of their statements, they nevertheless voluntarily
executed and signed their statements confessing to the crime.[17]
On April 19, 1991, Pfc. Anastacio Naive testified that he had also investigated the shooting incident; interviewed the
victim (Erlinda Boyose) and the witness (Edwin Amparado) who was an alleged friend of petitioner; and that he had
reduced the statement of Zaldy Bontia into writing after informing the latter of his constitutional rights in the presence of
Atty. Jocom. Zaldy named Melanio Mallari as the mastermind who had asked him to look for a triggerman who would
eliminate Boyose.[18]
The testimonies of Policemen Antonio Ysulat and Victoriano Padilla were admitted by herein petitioner, according to
the stipulation of his counsel.[19] Ysulat was the Sasa Patrol Stations exhibit custodian, to whom the gun that had allegedly
been used in the shooting incident was turned over. Padilla was the desk officer who had recorded the Complaint
regarding the incident on June 29, 1989, the appearance of Erlinda Boyose, her identification of Zaldy and Leonardo Bontia
from a police lineup, and the appearance of Petitioner Mallari at the patrol station on August 2, 1989.
Erlinda stated[20] that she was a classroom teacher and guidance counselor of Bustamante High School, where
petitioner was the principal from 1983 to 1989; and that initially, they had a good working relationship, which turned sour
when she began inquiring about school funds that had remained unaccounted for. On March 22, 1989, she personally
handed over to him a letter[21] she had written, reminding him of, among other things, some basic needs of the school that
had remained unmet, such as blackboards, chairs and comfort rooms for the students; and his failure, as the school
administrator in the past five years, to account for fees collected from students.
She then admonished him in that letter for his moral indiscretions in office; [22] recommended that he conduct
dialogues/discussions with teachers, students and their parents, to disclose financial reports so as to avoid suspicions of
fund misuse; and, finally, apologized for having to bring up all these matters, but expressed hope that it would all be for
the improvement of the school administration. Boyose further testified that after reading the letter, Mallari told her
sarcastically that he had been to so many schools, but that it was only she who had written to him in such a manner; he
warned her that she made a mistake in writing this [letter].
Boyose also attested to the incidents of that fateful day, June 29, 1989, which culminated in the attempt on her life
by Leonardo Bontia. He had asked her earlier that day in school about how to enroll his nephew at the Bustamante High
School. Because of the gunshot injuries that she sustained, she had to undergo hospitalization for which she incurred
expenses.
While the instant case was pending trial, Leonardo Bontia supposedly wrote her a letter[23] asking for forgiveness for
the crime [he] had done against [her,] saying that he was in dire need of money at the time. Allegedly, he had to go to
Mallari, hoping to be able to ask for some, but the latter instead dared [him] to discipline Mrs. Boyose, gave [him] food
and drinks until [he] got drunk, and also promised to give him money and a job. Because the accused was drunk and, thus,
out of his mind, he supposedly gave in to the prodding of Mallari.
Only two other witnesses against the Bontias were not presented against Petitioner Mallari. They were (1) Pfc. Remo
Pagal, who had also participated in the investigation and allegedly received an informers tip that led to their arrest; and
(2) Dr. Roberto Alabado, who had treated the injuries of the victim.[24]
The remaining witnesses at the separate trial of the Bontias were petitioners co-accused, Zaldy and Leonardo Bontia.
It is worth noting that despite their earlier confessions -- as attested to by Witnesses Carvajal, Jocom and Naive -- the
Bontia brothers, assisted by counsel, entered a plea of not guilty. Moreover, during their trial, the brothers denied
committing the crime; admitted to having signed their respective statements; but alleged that these had been procured
without the assistance of counsel and with the police officers use of force, intimidation and violence.[25]
 After reading the testimonies of Pagal, Alabado and the two Bontias and reviewing the rulings, we find that the trial
and the appellate courts could not have taken those testimonies into substantial consideration, if at all, in convicting the
petitioner. In fact, the testimonies of Pagal and Alabado were merely corroborative of those of the other witnesses who
were presented during petitioners trial. On the other hand, the declarations of Zaldy and Leonardo Bontia in open court
were, on their face, favorable to him. And the lower courts cognizance of those declarations would not have prejudiced
him, as petitioner asserts. However, despite the denials by the Bontias, the lower courts still found them, including
petitioner, guilty.
We therefore find no basis at all for the allegation of petitioner that the trial and the appellate courts convicted him
on the ground of evidence adduced at his co-accuseds separate trial, but supposedly not during his own trial.

Second Issue: Sufficiency of Circumstantial Evidence

A close perusal of the testimonies of the witnesses presented against petitioner reveals the absence of direct
evidence establishing his criminal participation. Nonetheless, in the absence of direct proof, a conviction may still be based
on circumstantial evidence. But to warrant such conviction, the following requisites must concur: (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.[26]
Corollary to the constitutional precept that the accused is presumed innocent until the contrary is proved, a
conviction based on circumstantial evidence must exclude each and every hypothesis consistent with innocence.[27] Hence,
if the totality of the circumstances eliminates beyond reasonable doubt the possibility of innocence, conviction is proper;
otherwise, the accused must be acquitted.[28]
With the above jurisprudential premises in mind, we examined the circumstances on the basis of which petitioner
had been found guilty beyond reasonable doubt and, consequently, convicted.
According to the CA, the following circumstances were sufficient to establish the criminal culpability of the three
accused (Zaldy and Leonardo Bontia, as well as Petitioner Mallari):

x x x. First, appellant Mallari had an axe to grind against the victim because of her persistent inquiries regarding the use
or misuse of school funds under the custody of Mallari as principal of Bustamante Barangay High School. This fact shows
the motive of Mallari in silencing her. Second, Zaldy Bontia, the person who looked for a killer, is beholden to Melanio
Mallari, considering that the latter had promised him a steady government job and had been giving cash advances in the
form of allowance to tide him over till such time that he could receive a regular salary from the government. Third,
Leonardo Bontia is the older brother of Zaldy. When the job to kill Boyose was offered by Mallari to Leonardo Bontia,
the latter immediately acceded considering that he was in dire need of money having eight (8) children and a wife to
support. Thus, when confronted by the victim at the police station, he readily admitted that he shot Erlinda Boyose
because of the consideration he hoped to receive from Mallari afterwards. Fourth, the money in the amount of P900.00
which Zaldy Bontia gave to his brother Leonardo so that he can hide came from Mallari. Fifth, the confession made by
Zaldy Bontia concerning his participation to the crime after he was confronted by the victim at the police station. Sixth,
both Leonardo and Zaldy Bontia voluntarily executed extra-judicial statements regarding their involvement in the crime.
In their respective extra-judicial confession, they pointed to Mallari as the person who induced them to kill Boyose.
Finally, the letter of Leonardo Bontia marked as Exhibit I, addressed to the victim asking for forgiveness, contained
narration of events with full of explicit details regarding the commission of the crime.[29]

In its Memorandum,[30] the OSG substantially repeats the above circumstances in support of the conviction of
petitioner.
The first circumstance -- that Mallari had an axe to grind against the victim because of her persistent inquiries
regarding the use or misuse of school funds -- appears to be a conclusion based merely on the impression of the victim
herself. Other than the one letter[31] she wrote to petitioner, only her self-serving statement supported her allegation that
she had questioned persistently (several times) his supposed administrative malpractices as school principal.
 Be that as it may, a reading of that letter, which was indeed replete with denigrating statements against him, probably
served as a motive for a reprisal from him, if its contents were not treated as constructive criticism. To the extent that it
tends to establish motive, this circumstance may be taken into consideration in the overall assessment of the evidence
against him.
The second to the fourth circumstances[32] are not directly established by the evidence against petitioner. None of
the prosecution witnesses testified thereon. A scrutiny of the records of the case reveals that those circumstances were
derived from the Written Statements[33] that had been made by petitioners co-accused and presented when Prosecution
Witnesses Carvajal and Naive testified. These witnesses were the police investigators who had reduced into writing the
statements of Leonardo and Zaldy Bontia at the time of the arrest of the latter two.
Section 36 of Rule 130 of the Rules of Court provides that witnesses can testify only with regard to facts of which they
have personal knowledge; otherwise, their testimonies would be inadmissible for being hearsay.[34] In the present case,
neither of the said witnesses had personal knowledge of the second to the fourth circumstances considered by the
appellate court, or of the rest of the statements made by the declarants in their respective Written Statements. The
witnesses merely attested to the voluntariness and due execution of the Bontias respective extrajudicial confessions. Thus,
insofar as the substance of those confessions is concerned, the testimonies of the police witnesses are mere hearsay.[35]
The fifth and the sixth circumstances refer to the aforementioned Written Statements of petitioners co-accused who
did not, however, testify against him. Well-settled is the rule that extrajudicial declarations are inadmissible in evidence
against the declarants co-accused.[36] The admission by the court of such declarations violates the incriminated persons
right to due process. This principle holds if, as in the case before us, the declarants fail to take the witness stand and
thereby deny the accused-petitioner the fundamental right to confront and cross-examine them face-to-face, in order to
test their truthfulness and credibility.
True, there are exceptions to this rule, such as when the confession is used as circumstantial evidence to show the
probability of the participation of the co-accused in the crime, or when the confession is corroborated by other pieces of
evidence.[37] In such instances, the significance of the confession comes to the fore, but only in relation to the other
circumstantial evidence establishing the guilt of the person incriminated. In the instant case, the merits of the fifth and
the sixth circumstances mentioned by the appellate court depend, therefore, on the strength of the other circumstantial
evidence against petitioner.
But, as discussed so far, just the first circumstance, establishing petitioners motive, may be given due weight. Only
one more remains to be considered, as the three other circumstances have been discounted as hearsay.
This last circumstance cited by the appellate court pertains to a supposed letter of Leonardo Bontia addressed to the
victim, containing explicit details regarding the commission of the crime and asking for forgiveness. The latter was
presented as part of the testimony of the victim, Erlinda Boyose. However, Leonardo was not presented in court to identify
it. No other witness testified as to its genuineness or as to the fact that it had personally and voluntarily been written by
him. Incidentally, Boyose received it through the mail, and no one ever attested that it had in fact been written and sent
by the same Leonardo Bontia, petitioners co-accused.[38]
As we have said earlier, witnesses can testify only with regard to facts of which they have personal knowledge.
Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of the witness, but on the
knowledge of some other person not on the witness stand. Consequently, hearsay evidence -- whether objected to or not
-- has no probative value unless the proponent can show that the evidence falls within any of the exceptions to the hearsay
rule, as provided in the Rules of Court.[39] Clearly, none of the exceptions apply to the present case.
Thus, an unverified and unidentified private document cannot be accorded probative value. It is precluded because
the party against whom it is presented is deprived of the right and opportunity to cross-examine the person to whom the
statements or writings are attributed. Its executor or author should be presented as a witness to provide the other party
to the litigation the opportunity to question its contents. Being mere hearsay evidence, failure to present the author of
the letter renders its contents suspect and of no probative value.[40]
There is another circumstance, not mentioned by the appellate court but advanced by the Office of the Solicitor
General: that Prosecution Witness Edwin Amparado declared that he had been contacted by petitioner to kill Boyose. Let
us first recall the testimony of that witness, as related by the trial court:
On December 11, 1990, Edwin Amparado testified that he personally knows accused Mallari because he studied at F.
Bangoy Barangay High School where Melanio Mallari was the principal from 1983 to 1984, that he also knows Zaldy
Bontia, that the last time he saw Zaldy Bontia was in February 1989 in the house of Melanio Mallari located at Juan Luna,
corner Chavez Streets, that he went to the house of Melanio Mallari to pledge his electric fan, that Melanio Mallari
asked him to kill Mrs. Boyose who used to be his neighbor at Doa Pilar Village but nothing came out of it, that later he
heard over the radio that Mrs. Boyose was shot, that he knows Andy Magdadaro who was his neighbor in Agdao, that
they talked about the plan to kill Mrs. Boyose, that Andy Magdadaro was only waiting for his go-signal, that he executed
an affidavit regarding the offer of Melanio Mallari to kill Mrs. Boyose. He said on cross-examination that he did not feel
disgusted when Mallari asked him to kill Mrs. Boyose, that he thought of killing Mrs. Boyose and relayed the offer to
Andy Magdadaro the same job, that he is close to Mr. Mallari, that the job of killing Mrs. Boyose was the only illegal job
offered to him by Melanio Mallari, that during that time he needed money because his wife was pregnant, that he
relayed the offer to Andy Magdadaro because he is a rebel returnee.[41]

It appears that the prosecution presented Amparado merely to show that petitioner had criminal intent against the
victim. The testimony of the witness, however, concerned petitioners alleged proposal to him (not to the Bontias) to kill
Boyose -- an act that, by his own admission, did not materialize. Even if indeed petitioner made such a proposal, it did not
necessarily mean that it was also made to the Bontias, absent any strong supporting evidence. The witness does not in
fact appear privy to any conspiracy between petitioner and the Bontias.
Thus, insofar as the actual attempt on the life of Boyose is concerned, Amparados testimony is clearly irrelevant or
of no probative weight. It does not tend to establish, to any reasonable degree, the probability of a fact in issue[42] --
whether petitioner had induced or conspired with the Bontias to kill Boyose. Hence, the testimony is worthless in
establishing the guilt of petitioner of the crime charged against him.
In the final analysis, other than the victims letter to petitioner tending to establish his ill motive, there is hardly any
evidence to corroborate his co-accuseds extrajudicial confessions (later recanted) or to establish the probability of his
actual participation (by inducement) in the commission of the crime. Considering that the strength of the prosecution
evidence against him falls short of the required quantum of proof beyond reasonable doubt, his constitutional right to be
presumed innocent must prevail.
The Court has repeatedly held that when the circumstances shown to exist yield at least two inferences -- one of
which is consistent with the presumption of innocence and the other with the finding of guilt -- the Court must acquit the
accused, because the evidence does not then fulfill the test of moral certainty or suffice to support a judgment of
conviction.[43]
Consistent with the above principles, and in view of the dearth of evidence to prove his guilt beyond reasonable
doubt, petitioner must be acquitted.

Third Issue: Due Process

Petitioner also claims that he was denied due process by the Court of Appeals, because it allegedly failed to tackle all
the issues raised in his appeal brief.
While it is no longer necessary to resolve this issue in view of our disposition of the second one, it is enough to say
that petitioner has neglected to substantiate this allegation in his Petition. He did not, in fact, even care to point out --
much less discuss -- what issues the appellate court had failed to resolve. In any event, a wrong disposition by the court is
not tantamount to denial of due process.
WHEREFORE, the assailed Decision insofar as it pertains to Petitioner is REVERSED and SET ASIDE. On reasonable
doubt, Petitioner Melanio Mallari y Liberato is ACQUITTED. The director of the Bureau of Corrections is directed to cause
the immediate release of petitioner, unless the latter is being lawfully held for another cause; and to inform the Court of
the date of his release, or the reasons for his continued confinement, within ten days from notice. No costs.
SO ORDERED.
 FIRST DIVISION

5. G.R. No. 181084 June 16, 2009

PEOPLE OF THE PHILIPPINES, vs. BARTOLOME TAMPUS and IDA MONTESCLAROS, Defendants. IDA MONTESCLAROS,
Appellant.

DECISION

PUNO, C.J.:

On appeal is the decision[2] of the Court of Appeals, Visayas Station, dated September 29, 2006 in CA-G.R. CR-HC No. 00215.
The Court of Appeals affirmed, with modification, the decision[3] of the Regional Trial Court of Lapu-lapu City in Criminal
Case No. 013324-L, finding appellant Ida Montesclaros (Ida) guilty as an accomplice in the commission of rape.
The present appeal stems from two criminal cases: (1) Criminal Case No. 013324-L charging Bartolome Tampus (Tampus)
and Ida as conspirators in the rape of ABC[4] on April 1, 1995 at 4:30 p.m.; and (2) Criminal Case No. 013325-L charging
Tampus of raping ABC on April 4, 1995 at 1:00 a.m.

The Information[5] in each case reads as follows:

CRIM. CASE NO. 013324-L[6]

That on the 1st day of April 1995, at about 4:30 oclock [sic] in the afternoon, in Looc, Lapulapu City,
Philippines, within the jurisdiction of this Honorable Court, accused Bartolome Tampus, taking advantage
that [ABC] was in deep slumber due to drunkenness, did then and there willfully, unlawfully and
feloniously have carnal knowledge with [sic] the latter, who was at that time thirteen (13) years old,
against her will, in conspiracy with the accused Ida Montesclaros who gave permission to Bartolome
Tampus to rape [ABC].

CONTRARY TO LAW.

CRIM. CASE NO. 013325-L[7]

That on the 3rd day of April, 1995,[8] at about 1:00 oclock [sic] dawn, in Looc, Lapulapu City, Philippines,
within the jurisdiction of this Honorable Court, the above-named accused, armed with a wooden club
(poras), by means of threat and intimidation, did then and there willfully, unlawfully and feloniously have
carnal knowledge with [sic] [ABC], who was at that time thirteen (13) years old, against her will.
 CONTRARY TO LAW.
The offended party, ABC, is the daughter of appellant Ida, and was 13 years old at the time of the incident. Ida worked as
a waitress in Bayanihan Beer House in Mabini, CebuCity. On February 19, 1995, Ida and ABC started to rent a room in a
house owned by Tampus, a barangay tanod. On April 1, 1995, about 4:30 p.m., ABC testified that she was in the house
with Ida and Tampus[9] who were both drinking beer at that time. They forced her to drink beer[10] and after consuming
three and one-half (3 ) glasses of beer, she became intoxicated and very sleepy.[11] While ABC was lying on the floor of
their room, she overheard Tampus requesting her mother, Ida, that he be allowed to remedyo[12] or have sexual
intercourse with her.[13] Appellant Ida agreed and instructed Tampus to leave as soon as he finished having sexual
intercourse with ABC. Ida then went to work, leaving Tampus alone with ABC. ABC fell asleep and when she woke up, she
noticed that the garter of her panties was loose and rolled down to her knees. She suffered pain in her head, thighs,
buttocks, groin and vagina, and noticed that her panties and short pants were stained with blood which was coming from
her vagina.[14] When her mother arrived home from work the following morning, she kept on crying but appellant Ida
ignored her.[15]

ABC testified that on April 4, 1995 around 1:00 a.m., she was left alone in the room since her mother was at work at the
beer house.[16] Tampus went inside their room and threatened to kill her if she would report the previous sexual assault
to anyone.[17] He then forcibly removed her panties. ABC shouted but Tampus covered her mouth and again threatened
to kill her if she shouted.[18] He undressed himself, spread ABCs legs, put saliva on his right hand and he applied this to her
vagina; he then inserted his penis into ABCs vagina and made a push and pull movement.[19] After consummating the
sexual act, he left the house. When ABC told appellant Ida about the incident, the latter again ignored her.[20]
On May 4, 1995, after being maltreated by her mother, ABC sought the help of her aunt, Nellie Montesclaros (Nellie). She
told Nellie about the rape and that her mother sold her.[21] ABC, together with Nellie and Norma Andales, a traffic enforcer,
reported the incident of rape to the police. On May 9, 1995, Nestor A. Sator , M.D. (Dr. Sator), head of the Medico-Legal
Branch of the Philippine National Crime Laboratory Services, Regional Unit 7, conducted a physical examination of ABC
and issued a Medico-Legal Report.[22]Dr. Sator testified that the result of his examination of ABC revealed a deep healed
laceration at the seven (7) oclock position and a shallow healed laceration at the one (1) oclock position on ABCs hymen.

On September 22, 1995, ABC filed two Complaints. She accused Tampus of taking advantage of her by having carnal
knowledge of her, against her will, while she was intoxicated and sleeping on April 1, 1995 at 4:30 p.m. She declared in
her Complaint that this was done in conspiracy with accused Ida who gave permission to Tampus to rape her. And again,
she stated that on April 3, 1995, she was threatened with a wooden club by Tampus, who then succeeded in having sexual
intercourse with her, against her will.

Tampus denied raping ABC on April 1, 1995. He claimed that at 4:00 p.m. of April 1, 1995, he left the house to go to the
public market of Lapu-lapu City. When he arrived home at 6:00 p.m., ABC and Ida were not there as they usually go to the
beer house at 4:00 p.m. or 5:00 p.m.[23] He denied forcing ABC to drink beer. He also denied asking Ida to allow him to
have sexual intercourse with ABC.[24] Appellant Ida also testified that she and ABC left for the beer house at 4:00 p.m. of
April 1, 1995 and they came back at 6:00 a.m. the following day.[25] She said that she always brought her daughter to the
beer house with her and there was never an instance when she left her daughter alone in the house.[26] She denied forcing
ABC to drink beer at 4:30 p.m. of April 1, 1995, and she denied giving permission to Tampus to have sexual intercourse
with ABC.[27]

Tampus also denied raping ABC on April 4, 1995. He testified that he arrived at the Barangay Tanod Headquarters between
7:00 p.m. and 8:00 p.m. of April 3, 1995[28] and that his actual duty time shift was from midnight to 5:00 a.m. of April 4,
1995. Guillermo Berdin (Berdin), a defense witness, testified that on April 3, 1995, Tampus reported for duty at the police
outpost at 8:00 p.m. and left at 5:00 a.m. of April 4, 1995, as reflected in the attendance logbook. However, on cross-
examination, Berdin could not tell whether the signature appearing on the logbook really belonged to Tampus. It was
noted by the trial court that the handwriting used by Tampus in the logbook entry on April 2, 1995 is different from his
handwriting appearing on April 3, 1995.[29] It was also revealed that the house of Tampus is just 500 meters away or just
a three-minute walk from thebarangay tanod outpost and that the barangay tanod on duty could leave the outpost
unnoticed or without permission.[30]

Agustos B. Costas, M.D.[31] (Dr. Costas), the Head of the Department of Psychiatry of the Vicente Sotto Memorial Medical
Center, issued a Medical Certification,[32] which showed that appellant Ida was treated as an outpatient at the Vicente
Sotto Memorial Medical Center Psychiatry Department from November 11, 1994 to January 12, 1995 and was provisionally
diagnosed with Schizophrenia, paranoid type.
The trial court convicted Tampus of two counts of rape, as principal in Criminal Case No. 013324-L and Criminal Case No.
013325-L. Appellant Ida was found guilty as an accomplice in Criminal Case No. 013324-L. The trial court appreciated in
Idas favor the mitigating circumstance of illness which would diminish the exercise of will-power without depriving her of
the consciousness of her acts, pursuant to Article 13(9) of the Revised Penal Code.[33] The dispositive portion of the trial
courts decision states, viz.:

WHEREFORE, in the light of the foregoing considerations, the Court finds accused Bartolome
Tampus GUILTY BEYOND REASONABLE DOUBT of two counts of rape, as principals [sic], in Criminal Case
No. 013324-L and Criminal Case No. 013325-L and he is hereby sentenced to suffer the penalty
of Reclusion Perpetua in each of the aforementioned cases.

The Court also finds accused Ida Montesclaros GUILTY BEYOND REASONABLE DOUBT as an accomplice in
Criminal Case No. 013324-L, and she is hereby sentenced to suffer the penalty of twelve (12) years and
one (1) day to fourteen (14) years, and eight (8) months of Reclusion Temporal.

Both accused are hereby ordered, jointly and severally, to indemnify the offended party, [ABC], the sum
of P50,000.00 in Criminal Case No. 013324-L.

With costs against the accused.

SO ORDERED. [34]

Pending resolution of the appeal before the Court of Appeals, accused Tampus died on November 16, 2000 [35] and his
appeal was dismissed by the Third Division of this Court.[36] Thus, the appeal before the Court of Appeals dealt only with
that of appellant Ida. The appellate court gave credence to the testimony of ABC and affirmed the trial courts decision
with modification. It appreciated the mitigating circumstance of illness in favor of Ida, but found that Ida failed to prove
that she was completely deprived of intelligence on April 1, 1995. On the basis of the medical report and the testimony of
the attending physician, Idas schizophrenia was determined by both the trial court and the Court of Appeals to have
diminished the exercise of her will-power though it did not deprive her of the consciousness of her acts. The dispositive
portion of the decision of the Court of Appeals states:

WHEREFORE, the instant appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with
MODIFICATION. Appellant Ida Montesclaros is guilty beyond reasonable doubt as accomplice in the
commission of rape and hereby sentenced to suffer the indeterminate penalty of ten (10) years and one
(1) day of prision mayor as minimum, to twelve (12) years and one (1) day of reclusion temporal as
maximum. Further, she is ORDERED to pay moral damages in the amount of fifty thousand pesos (Php
50,000.00) and exemplary damages in the amount of twenty-five thousand pesos (Php 25,000.00).[37]

We find the findings of the lower courts to be well-taken.

 The finding of guilt of Ida as an accomplice in the rape of ABC is dependent on proving the guilt of the principal
accused. Upon examination of the records of the case, we agree with the ruling of the trial and appellate courts that the
testimony of ABC is clear and straightforward, and is sufficient to conclude that Tampus is guilty beyond reasonable doubt
as principal in the rape of ABC, in Criminal Case No. 013324-L, as well as to convict appellant Ida as an accomplice in the
same criminal case.

The findings of the trial courts carry great weight and respect and, generally, appellate courts will not overturn
said findings unless the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and
substance which will alter the assailed decision or affect the result of the case.[38] The rule finds an even more stringent
application where the said findings are sustained by the Court of Appeals.[39]

The trial court has carefully scrutinized the testimony of complainant ABC and has given full faith and credence to
her testimony. Both the trial and appellate courts found that the rape of ABC by Tampus on April 1, 1995 has been
established beyond reasonable doubt. Indeed, it is highly inconceivable for a young girl to impute the crime of rape,
implicate her own mother in such a vile act, allow an examination of her private parts and subject herself to public trial if
she has not been a victim of rape and was impelled to seek justice for the defilement of her person. Testimonies of child-
victims are normally given full credit.[40]

Tampus was positively identified by ABC as the person who had carnal knowledge of her against her will on April
1, 1995. The denial of Tampus cannot prevail over the positive and direct identification by the victim, ABC. Although ABC
was asleep and unconscious at the time the sexual debasement was committed by Tampus, circumstantial evidence
established beyond doubt that it is Tampus who raped ABC. Circumstantial evidence is sufficient for conviction if: (a) there
is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination
of all the circumstances is such as to produce a conviction beyond reasonable doubt.[41] In cases like the one at bar, the
Court takes into consideration the events that transpired before and after the victim lost consciousness in order to
establish the commission of the act of coitus.[42]

The trial court correctly determined, thus:

The prosecution has clearly established by its evidence that accused Bartolome Tampus had
carnal knowledge of [ABC] on April 1, 1995 under the circumstance set forth in Article 335 (2) of the
Revised Penal Code, as amended; that is, when the woman is deprived of reason or otherwise
unconscious.

xxxx

The Court cannot accept accused Bartolome Tampus defense of denial and alibi. His denial pales
in effect against the positive evidence given by [ABC] that he ravished her [on] two occasions.

xxxx

It is true that in the first incident on April 1, 1995, [ABC] did not see Tampus lie down with her.
What she saw was the aftermath of her deflowering upon waking up. Nevertheless, the Court has taken
note of the following circumstances: (1) The drinking session where the complainant was forced to drink
beer by both accused; (2) The conversation between the two accused when accused Tampus requested
accused Ida Montesclaros, and was granted by the latter, permission to have sexual intercourse with the
complainant; (3) Accused Tampus and the complainant were the only persons left in the house when Ida
Montesclaros went to work after acceding to the request of Tampus; (4) The bloodstained pants, the pain
and blood in complainants vagina and the pain in her head, groin and buttocks; (5) The threat made by
accused Tampus on the complainant in the dawn of April 4, 1995 that he would kill her if she would tell
 about the previous incident on April 1, 1995; and (6) The second incident of rape that immediately ensued.
These circumstances form a chain that points to accused Bartolome Tampus as the person who had carnal
knowledge of [ABC] when she was asleep in an inebriated condition. [43]

After establishing the guilt of Tampus as principal, the trial court then determined the guilt of Ida. Although Ida
was charged as a conspirator, the trial court found her liable as an accomplice. The trial court ruled that her act of forcing
or intimidating ABC to drink beer and then acceding to the request of co-accused Tampus to be allowed to have sexual
intercourse with ABC did not prove their conspiracy.[44] Hence, it held that, [u]ndoubtedly, Ida Montesclaros participated
in the commission of the crime by previous acts but her participation, not being indispensable, was not that of a principal.
She is liable as an accomplice.[45]

In her appeal, appellant Ida argued that it is against human nature for a mother to allow her daughter to be raped.
She maintained that there was no instance when she left ABC alone in the house. The Court of Appeals dismissed appellant
Idas appeal as it also gave credence to the testimony of ABC.

In her appeal brief filed before this Court, Ida raises the following assignment of errors:
I

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BARTOLOME TAMPUS OF THE CRIMES OF RAPE
DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN CONVICTING IDA MONTESCLAROS AS ACCOMPLICE TO THE CRIME OF RAPE
DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT.[46]

We affirm the trial and appellate courts in ruling that Ida is liable as an accomplice in the rape of her daughter,
ABC.

Accomplices are persons who, not being included in Article 17 of the Revised Penal Code, cooperate in the
execution of the offense by previous or simultaneous acts.[47]The following requisites must be proved in order that a
person can be considered an accomplice:

(a) community of design, i.e., knowing that criminal design of the principal by direct participation, he
concurs with the latter in his purpose;
(b) he cooperates in the execution of the offense by previous or simultaneous acts; and,
(c) there must be a relation between the acts done by the principal and those attributed to the person
charged as accomplice.[48]

The testimony of ABC establishes that Ida cooperated in the execution of the rape by Tampus when prior to the
act of rape by Tampus, she forced ABC to drink beer and she agreed to Tampus request for him to have sexual intercourse
with ABC. Idas acts show that she had knowledge of and even gave her permission to the plan of Tampus to have sexual
intercourse with her daughter.

During the cross-examination by the defense counsel, Atty. Paulito Cabrera, of witness ABC, she testified that:
Q Before this date, April 1, 1995, did you already usually drink beer?

A No, sir.

Q So, you are telling the Honorable Court that it was only on April 1, 1995 that you first drank beer?

A Yes, sir.

Q What did you say, you were forced to drink beer?

A Yes, sir.

Q Who forced you to drink beer in that afternoon of April 1, 1995?

A Bartolome Tampus and Nanay, my mother.[49]

xxxx

Q By the way, your mother proposed to you to drink beer?

A Yes, sir.

Q Before you concede to her proposition, did you not complain that you had not been used to drinking
beer and then, why suddenly, she would let you drink beer at that time?

A No, sir.

Q Did you not tell her that, I am not used to drinking beer, so, I would not drink beer?

A Because the beer was mixed with Coke.

Q So, you mean that you also agreed to drink beer at that time?

A I just agreed to the proposal of my mother.

Q But you never voiced any complaint or any refusal to her at that time?

A No, sir because I was afraid that she might maltreat me.

Q At that time when she proposed to you to drink beer, was she already threatening to maltreat you if you
would not drink that beer?

A Not yet.

Q And how were you able to conclude that she might maltreat you if you would not drink that beer that
she proposed for you to drink?

A Because Nanay stared at me sharply and she had a wooden stick prepared.

Q Are you sure that she was doing that while she was offering the glass of beer to you?

A Yes, sir.[50]
 xxxx

Q While you were drinking beer, your mother and Bartolome went out of the house and you overheard
Bartolome asking or proposing to your mother that he would have sexual intercourse with you
which you term in the Visayan dialect remedyo, Bartolome would want to have a remedyo with
you. When [sic], particular moment did you allegedly hear this statement, while you were drinking
beer or after you had finished drinking beer?

A When I was already lying on the floor of the room we were renting.[51]

xxxx

Q And, of course, as you have stated now, it was you, you were quite sure that it was you who was being
referred by Bartolome Tampus when he said to your mother in the Visayan dialect that gusto siya
moremedyo nimo, he wants to have sexual intercourse with you?

A Yes, sir, but I dont know the meaning of remedyo.

Q At that time, you did not know the meaning of remedyo"?

A Not yet, sir.[52]

xxxx

Q Was that the very first time that you ever heard of the word remedyo"?

A Yes, sir[53]

xxxx

Q And when your mother came back from work at about 7:00 oclock [sic] in the morning of April 2, 1995,
did you not also bother to tell her of what you suspected that something serious or bad had
happened to you in the previous day?

A Because she already knew, sir.

Q How did you know that she already knew?

A Because I heard her telling Omeng,[54] After you have sexual intercourse with her, leave her
immediately![55]

xxxx

Q Considering that you never knew what is the meaning of the word, remedyo, when your mother arrived
in the morning of April 2, 1995, did you not confront your mother, did you not tell her that, Is this
what you mean by remedyo, as what you had agreed with Bartolome Tampus that he would do
something to my genitals?

A No sir, because when she arrived, she kept on laughing.[56]

All the requisites concur in order to find Ida guilty as an accomplice to Tampus in the rape of ABC. The testimony
of ABC shows that there was community of design between Ida and Tampus to commit the rape of ABC. Ida had knowledge
of and assented to Tampus intention to have sexual intercourse with her daughter. She forced ABC to drink beer, and
when ABC was already drunk, she left ABC alone with Tampus, with the knowledge and even with her express consent to
Tampus plan to have sexual intercourse with her daughter.

It is settled jurisprudence that the previous acts of cooperation by the accomplice should not be indispensable to
the commission of the crime; otherwise, she would be liable as a principal by indispensable cooperation. The evidence
shows that the acts of cooperation by Ida are not indispensable to the commission of rape by Tampus. First, because it
was both Ida and Tampus who forced ABC to drink beer, and second because Tampus already had the intention to have
sexual intercourse with ABC and he could have consummated the act even without Idas consent.
The acts of Ida are closely related to the eventual commission of rape by Tampus. They both forced ABC to drink
beer; when ABC was already drunk, Tampus asked Ida if he could have sexual intercourse with ABC and Ida gave her
consent; and lastly, Ida left ABC alone with Tampus so that he proceed with his plan to rape ABC.

Circumstances affecting the liability of the Appellant as an Accomplice

We agree with both the trial and appellate courts in their appreciation of the mitigating circumstance of illness as would
diminish the exercise of willpower of Ida without depriving her of the consciousness of her acts, pursuant to Article 13(9)
of the Revised Penal Code.

Dr. Costas testified that Ida was provisionally treated for schizophrenia a few months before the incident, from November
11, 1994 to January 12, 1995. Based on his expert opinion, Ida was not totally deprived of intelligence at the time of the
incident; but, she may have poor judgment. On Direct Examination of Dr. Costas by City Prosecutor Celso V.
Espinosa, he testified as follows:

Q Doctor, taking into consideration your diagnosis, as you said, is provisional, would you say that the
patient [sic] totally deprived of intelligence or reason?

A Not totally.

Q She will be conscious of her acts?

A She may be, that is possible, for certain cause.

Q And there will be loss of intelligence?

A There could be.

Q Now, Doctor, she is charged her [sic] as one of the principals in the commission of the crime of rape for
having given her daughter to be sexually abused by her co-accused, allegedly convinced by her
co-accused on the first day of April, 1995. Now, if she was then under treatment, Doctor, from
November 11, 1994 to January 12, 1995, would you say, Doctor, that having taken this diagnosis
for [sic] schizophrenic patient, at the time, after January 12, 1995, she must have acted with
discernment?

A It is possible because you are this kind of mental illness even with the treatment, and even without any
medication, it may be what we called spontaneous, really it will get back.

Q At that time it will loss the intelligence? [sic]

A I think because it might be back, the treatment should be yearly.
 Q Doctor, in your opinion, since our office is very much concern [sic] on this, if a person is totally deprived
of intelligence, he has still discernment, she is unconscious of her act, she or he may be exempted
from any criminal liability, please tell, Doctor, in your personal opinion for the purpose of this
proceedings she may be acting with discernment and with certain degree of intelligence?

A It is possible but I think of a mother feeding her own daughter to somebody, I think there is a motive,
she wants to gain financial or material things from the daughter if no material gain, then perhaps
it was borne out of her illness. This is my opinion.[57]

xxxx

Q Doctor, is this schizophrenic person can distinguish the right or wrong? [sic]

A If they are in the [sic] state of illness, judgment is impaired to discern between right or wrong.

Q In the case of this particular accused, what would you say at the state of her ailment?

A When she was brought to the hospital, Your Honor, I think, although the mother alleged that the
sickness could be more than one year duration, it is in acute stage because she was allegedly
destroying everything in the house according to the mother, so she was in acute stage.[58]

On cross-examination by Atty. Paulito Cabrera, Dr. Costas testified thus:

Q Would you say, Doctor, that that particular ailment of Ida Montesclaros affected her sense of judgment?

A I think, so.

Q And that being scizophronic [sic] somehow, it has, while in that stage, the patient lost contact with
reality?

A Yes, that is possible.

Q In your opinion, Doctor, granting, for the sake of argument, the alleged accusation against her is true,
being an expert on scizophrania, could you tell the Honorable Court as a mother, who would
allegedly do such an offense to her daughter, is it still in her sound mind or proper mental sane
[sic]?

A I think, as I said, one thing to be considered is the motivation if she want [sic] to gain some material
things, if not, it is because of her judgment.

Q If she would not gain anything from allowing her daughter allegedly to be rubbished by another person,
then there must be something wrong?

A There must be something wrong and it came up from scizpphrania.

A It is the judgment, in the case of the schizophrenic.[59]

We have previously held that Schizophrenia may be considered mitigating under Art. 13(9) if it diminishes the exercise of
the willpower of the accused.[60] In this case, the testimony of Dr. Costas shows that even though Ida was diagnosed with
schizophrenia, she was not totally deprived of intelligence but her judgment was affected. Thus, on the basis of the
Medical Certification that Ida suffered from and was treated for schizophrenia a few months prior to the incident, and on
the testimony of Dr. Costas, Idas schizophrenia could be considered to have diminished the exercise of her willpower
although it did not deprive her of the consciousness of her acts.

We note that in the case at bar, the undisputed fact that Ida is the mother of ABCwho was 13 years old at the time of the
incidentcould have been considered as a special qualifying circumstance which would have increased the imposable
penalty to death, under Article 266-B of the Revised Penal Code, viz.:

ARTICLE 266-B. Penalties.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim;

xxxx

Both the circumstances of the minority and the relationship of the offender to the victim, either as the victims parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim, must be alleged in the information and proved during the trial in order for them to
serve as qualifying circumstances under Article 266-B of the Revised Penal Code.[61]

In the case at bar, although the victim's minority was alleged and established, her relationship with the accused
as the latter's daughter was not properly alleged in the Information, and even though this was proven during trial and not
refuted by the accused, it cannot be considered as a special qualifying circumstance that would serve to increase the
penalty of the offender. Under the 2000 Rules of Criminal Procedure, which should be given retroactive effect following
the rule that statutes governing court proceedings will be construed as applicable to actions pending and undetermined
at the time of their passage,[62] every Information must state the qualifying and the aggravating circumstances attending
the commission of the crime for them to be considered in the imposition of the penalty. [63] Since in the case at bar, the
Information in Criminal Case No. 013324-L did not state that Ida is the mother of ABC, this circumstance could not be
appreciated as a special qualifying circumstance. Ida may only be convicted as an accomplice in the crime of simple rape,
which is punishable by reclusion perpetua. In any event, Republic Act No. 9346, entitled an "An Act Prohibiting the
Imposition of Death Penalty in the Philippines, which was signed into law on June 24, 2006 prohibits the imposition of the
death penalty.

Civil indemnity imposed against the appellant

The dispositive portion of the trial court's decision ordered Tampus and Ida "jointly and severally, to indemnify the
offended party, [ABC], the sum of P50,000.00 in Criminal Case No. 013324-L."[64] The Court of Appeals, however, did not
award any civil indemnity to ABC, and only awarded moral and exemplary damages. We deem it necessary and proper to
award ABC civil indemnity of P50,000.00. Civil indemnity ex delicto is mandatory upon finding of the fact of rape. This is
distinct from moral damages awarded upon such finding without need of further proof, because it is assumed that a rape
victim has actually suffered moral injuries entitling the victim to such award.[65]
Consistent with prevailing jurisprudence, the victim in simple rape cases is entitled to an award of P50,000.00 as civil
indemnity ex delicto and another P50,000.00 as moral damages. [66] However, Tampus civil indemnity ex delicto has been
extinguished by reason of his death before the final judgment, in accordance with Article 89 of the Revised Penal
Code.[67] Thus, the amount of civil indemnity which remains for accomplice Ida to pay is put at issue.

It becomes relevant to determine the particular amount for which each accused is liable when they have different degrees
of responsibility in the commission of the crime and, consequently, differing degrees of liability. When a crime is
committed by many, each one has a distinct part in the commission of the crime and though all the persons who took part
in the commission of the crime are liable, the liability is not equally shared among them. Hence, an accused may be liable
either as principal, accomplice or accessory.

The particular liability that each accused is responsible for depends on the nature and degree of his participation in the
commission of the crime. The penalty prescribed by the Revised Penal Code for a particular crime is imposed upon the
principal in a consummated felony.[68] The accomplice is only given the penalty next lower in degree than that prescribed
by the law for the crime committed[69] and an accessory is given the penalty lower by two degrees.[70] However, a felon is
not only criminally liable, he is likewise civilly liable. [71] Apart from the penalty of imprisonment imposed on him, he is also
ordered to indemnify the victim and to make whole the damage caused by his act or omission through the payment of
civil indemnity and damages.

Civil liability arising from the crime is shared by all the accused. Although, unlike criminal liabilityin which the Revised Penal
Code specifically states the corresponding penalty imposed on the principal, accomplice and accessorythe share of each
accused in the civil liability is not specified in the Revised Penal Code. The courts have the discretion to determine the
apportionment of the civil indemnity which the principal, accomplice and accessory are respectively liable for, without
guidelines with respect to the basis of the allotment.

Article 109 of the Revised Penal Code provides that [i]f there are two or more persons civilly liable for a felony, the courts
shall determine the amount for which each must respond. Notwithstanding the determination of the respective liability
of the principals, accomplices and accessories within their respective class, they shall also be subsidiarily liable for the
amount of civil liability adjudged in the other classes. Article 110 of the Revised Penal Code provides that [t]he principals,
accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves
for their quotas, and subsidiarily for those of the other persons liable.[72]

As courts are given a free hand in determining the apportionment of civil liability, previous decisions dealing with this
matter have been grossly inconsistent.

In People v. Galapin,[73] People v. Continente,[74] United States v. Lasada,[75] People v. Mobe,[76] People v.
Irinea,[77] People v. Rillorta,[78] People v. Cagalingan,[79] People v. Villanueva,[80] People v. Magno,[81] People v. del
Rosario,[82] People v. Yrat,[83] People v. Saul,[84] and People v. Tamayo,[85] the principal and accomplice were ordered to
pay jointly and severally the entire amount of the civil indemnity awarded to the victim. In People v. Sotto,[86] the
accomplice was ordered to pay half of the amount of civil indemnity imposed by the trial court, while the principal was
liable for the other half. In People v. Toring,[87] the principal, accomplice and the accessory were made jointly and severally
liable for the entire amount of the civil indemnity.

In the cases mentioned above, the principal and accomplice were made to pay equal shares of the civil indemnity. This
makes the accomplice who had less participation in the commission of the crime equally liable with the principal for the
civil indemnity. The degree of their participation in the crime was not taken into account in the apportionment of the
amount of the civil indemnity. This is contrary to the principle behind the treble division of persons criminally responsible
for felonies, i.e., that the liability must be commensurate with the degree of participation of the accused in the crime
committed. In such a situation, the accomplice who just cooperated in the execution of the offense but whose
participation is not indispensable to the commission of the crime is made to pay the same amount of civil indemnity as
the principal by direct participation who took a direct part in the execution of the criminal act. It is an injustice when the
penalty and liability imposed are not commensurate to the actual responsibility of the offender; for criminal responsibility
is individual and not collective, and each of the participants should be liable only for the acts actually committed by
him.[88] The proportion of this individual liability must be graduated not only according to the nature of the crime
committed and the circumstances attending it, but also the degree and nature of participation of the individual offender.

In Garces v. People,[89] People v. Flores,[90] People v. Barbosa,[91] People v. Ragundiaz,[92] People v. Bato,[93] and People v.
Garalde,[94] the accomplice was held to be solidarily liable with the principal for only one-half (1/2) of the amount adjudged
as civil indemnity. In Garces, the accomplice was held solidarily liable for half of the civil indemnity ex delicto but was
made to pay the moral damages of P50,000.00 separately from the principal. In Flores, Ragundiaz, Bato, and Garalde, the
accomplice was held solidarily liable for half of the combined amounts of the civil indemnity ex delicto and moral damages.
In Ragundiaz, the accomplice was also made solidarily liable with the principal for half of the actual damages, and
in Garalde the accomplice was also held solidarily liable with the principal for half of the exemplary damages, aside from
the civil and moral damages.

In these cases, the accomplice was made jointly and severally liable with the principal for only half of the amount of the
civil indemnity and moral damages, only for purposes of the enforcement of the payment of civil indemnity to the offended
party. When the liability in solidum has been enforced, as when payment has been made, the person by whom payment
has been made shall have a right of action against the other persons liable for the amount of their respective shares.[95] As
against each other, whoever made the payment may claim from his co-debtors only the share that corresponds to each,
with interest for the payment already made.[96] In these cases, therefore, payment is made by either the principal or the
accomplice, the one who made the payment to the victim could demand payment of the part of the debt corresponding
to his co-debtor. If for example the principal paid the victim the entire amount of the civil indemnity, he could go against
the accomplice for one-fourth (1/4) of the total amount of civil indemnity and damages. The principal was primarily liable
for only one-half (1/2) of the total amount of civil indemnity and he was solidarily liable with the accomplice for the other
half. Since the principal paid for the half which the accomplice is solidarily liable with, he could claim one-half (1/2) of that
amount from the accomplice. Thus, the principal would have become ultimately liable for three-fourths (3/4) of the total
amount of the civil indemnity and damages, while the accomplice would have become liable for one-fourth (1/4) of such
amount.
In People v. Cortes,[97] People v. Budol,[98] People v. Nulla,[99] and People v. Madali,[100] the principal was ordered to pay
twice the share of the accomplice in the civil indemnity. In Nulla, the Court determined the respective amounts for which
the principal, accomplice and accessory were liable for. The principal was ordered to pay P20,000.00, the accomplice was
ordered to pay P10,000.00, and the accessory was ordered to pay P2,000.00. Unlike the cases cited above where the
principal and accomplice were held solidarily liable for the entire amount of the civil indemnity or half of it, in Nulla, the
court particularly determined the amount for which each shall respond. This is consistent with Article 109 and Article 110
of the Revised Penal Code, which require that the courts should determine the amount for which the principals,
accomplices and accessories must respond to and upon specifying this amount, the principals are solidarily liable within
their class for their quota, the accomplices are solidarily liable among themselves for their quota and the accessories are
solidarily liable for their quota. If any one of the classes is unable to pay for its respective quota, it becomes subsidiarily
liable for the quota of the other classes, which shall be enforced first against the property of the principals; next, against
that of the accomplices; and lastly, against that of the accessories.[101]

There are also cases where the principal was ordered to pay more than double the amount that the accomplice is liable
for. In Lumiguis v. People,[102] the civil liability of P6,000.00 was apportioned as follows: the sole principal was primarily
liable for P3,000.00, the four accomplices were primarily liable in solidum among themselves for the other half of the
indemnity, or P3,000.00. Thus, each accomplice was answerable for one-fourth (1/4) of P3,000.00 or one-eighth (1/8) of
the entire amount of civil indemnity, which is P750.00.

Similarly in People v. Bantagan,[103] the principal was required to indemnify the heirs of the deceased in the amount
of P500.00. In case of his insolvency, his three accomplices should be jointly and severally liable. The three accomplices
were jointly and severally liable for the other P500 and in case of their insolvency the principal was secondarily liable for
such amount.

In People v. Castillo,[104] the accomplice was ordered to pay one-fourth (1/4) of the amount of the civil indemnity, while
the principal was liable for the remaining three-fourths (3/4).

In People v. Cariaga,[105] the total amount of indemnity and damages due to the heirs of the victim amounted
to P601,000.00. The sole accomplice was ordered to pay P101,000.00 which is roughly one-sixth (1/6) of the entire civil
indemnity, while the two principals were ordered to pay the rest of the indemnity and damages amounting
to P500,000.00.
The cases cited above demonstrate the ad hoc method by which the ratio of shares of the civil indemnity and damages
among the principal, accomplice and accessory is determined. Though the responsibility to decide the respective shares
of persons liable for a felony is left to the courts, this does not mean that this amount can be decided arbitrarily or upon
conjecture. The power of the courts to grant indemnity and damages demands factual, legal and equitable justification,
and cannot be left to speculation and caprice.

The entire amount of the civil indemnity, together with the moral and actual damages, should be apportioned among the
persons who cooperated in the commission of the crime according to the degree of their liability, respective
responsibilities and actual participation in the criminal act. Salvador Viada, an authority in criminal law, is of the opinion
that there are no fixed rules which are applicable in all cases in order to determine the apportionment of civil liability
among two or more persons civilly liable for a felony, either because there are different degrees of culpability of offenders,
or because of the inequality of their financial capabilities.[106] On this note, he states in his commentaries on the 1870
Penal Code of Spain that the law should leave the determination of the amount of respective liabilities to the discretion
of the courts.[107] The courts have the competence to determine the exact participation of the principal, accomplice, and
accessory in the commission of the crime relative to the other classes because they are able to directly consider the
evidence presented and the unique opportunity to observe the witnesses.

We must stress, however, that the courts discretion should not be untrammelled and must be guided by the principle
behind differing liabilities for persons with varying roles in the commission of the crime. The person with greater
participation in the commission of the crime should have a greater share in the civil liability than those who played a minor
role in the crime or those who had no participation in the crime but merely profited from its effects. Each principal should
shoulder a greater share in the total amount of indemnity and damages than every accomplice, and each accomplice
should also be liable for a greater amount as against every accessory. Care should also be taken in considering the number
of principals versus that of accomplices and accessories. If for instance, there are four principals and only one accomplice
and the total of the civil indemnity and damages is P6,000.00, the court cannot assign two-thirds (2/3) of the indemnity
and damages to the principals and one-third (1/3) to the accomplice. Even though the principals, as a class, have a greater
share in the liability as against the accomplice-- since one-third (1/3) of P6,000.00 is P2,000.00, while two-thirds (2/3)
of P6,000.00 is P4,000.00-- when the civil liability of every person is computed, the share of the accomplice ends up to be
greater than that of each principal. This is so because the two-thirds (2/3) share of the principalsor P4,000.00is still divided
among all the four principals, and thus every principal is liable for only P1,000.00.

In the case at bar, the trial court ruled that the accomplice is solidarily liable with the principal for the entire amount of
the civil indemnity of P50,000.00. This is an erroneous apportionment of the civil indemnity. First, because it does not take
into account the difference in the nature and degree of participation between the principal, Tampus, versus the
accomplice, Ida. Idas previous acts of cooperation include her acts of forcing ABC to drink beer and permitting Tampus to
have sexual intercourse with her daughter. But even without these acts, Tampus could have still raped ABC. It was Tampus,
the principal by direct participation, who should have the greater liability, not only in terms of criminal liability, but also
with respect to civil liability. Second, Article 110 of the Revised Penal Code states that the apportionment should provide
for a quota amount for every class for which members of such class are solidarily liable within their respective class, and
they are only subsidiarily liable for the share of the other classes. The Revised Penal Code does not provide for solidary
liability among the different classes, as was held by the trial court in the case at bar.

Thus, taking into consideration the difference in participation of the principal and accomplice, the principal, Tampus,
should be liable for two-thirds (2/3) of the total amount of the civil indemnity and moral damages and appellant Ida should
be ordered to pay one-third (1/3) of the amount. Civil indemnity for simple rape was correctly set at P50,000.00 and moral
damages at P50,000.00. The total amount of damages to be divided between Tampus and Ida is P100,000.00, where
Tampus is liable for P66,666.67 (which is two-thirds [2/3] of P100,000.00) and Ida is liable for P33,333.33 (which is one-
third [1/3] of P100,000.00). This is broken down into civil indemnity of P16,666.67 and moral damages of P16,666.67.
However, since the principal, Tampus, died while the case was pending in the Court of Appeals, his liability for civil
indemnity ex delicto is extinguished by reason of his death before the final judgment.[108] His share in the civil indemnity
and damages cannot be passed over to the accomplice, Ida, because Tampus share of the civil liability has been
extinguished. And even if Tampus were alive upon the promulgation of this decision, Ida would only have been subsidiarily
liable for his share of the civil indemnity of P66,666.67. However, since Tampus civil liability ex delicto is extinguished, Idas
subsidiary liability with respect to this amount is also eliminated, following the principle that the accessory follows the
principal. Tampus obligation to pay P66,666.67 his quota of the civil indemnity is the principal obligation, for which Ida is
only subsidiarily liable. Upon the extinguishment of the principal obligation, there is no longer any accessory obligation
which could attach to it; thus, the subsidiary liability of Ida is also extinguished.

On the matter of exemplary damages, we find that exemplary damages were incorrectly awarded by the Court of Appeals.

In criminal cases, exemplary damages are imposed on the offender as part of the civil liability when the crime was
committed with one or more aggravating circumstances.[109]Also known as "punitive" or "vindictive" damages, exemplary
or corrective damages are intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue
sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous
conduct.[110] Exemplary damages may be awarded only when one or more aggravating circumstances are alleged in the
information and proved during the trial.[111]

In the case at bar, no qualifying or aggravating circumstance was appreciated against Ida. Although, the minority of the
victim coupled with the fact that the offender is the parent of the victim could have served to qualify the crime of rape,
the presence of these concurring circumstances cannot justify the award of exemplary damages since the relationship of
the offender, Ida, to the victim, ABC, was not alleged in the Information.[112] The minority of the rape victim and her
relationship with the offender must both be alleged in the information and proved during the trial in order to be
appreciated as an aggravating/qualifying circumstance.[113] While the information in the instant case alleged that ABC was
a minor during the incident, there was no allegation that Ida was her parent. Since the relationship between ABC and
appellant was not duly established, the award of exemplary damages is not warranted.

IN VIEW WHEREOF, the Decision of the Court of Appeals, Visayas Station, dated September 29, 2006, in CA-G.R. CR-HC
No. 00215, finding appellant Ida Montesclaros guilty beyond reasonable doubt as accomplice in the crime of rape and
sentencing her to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to
twelve (12) years and one (1) day of reclusion temporal, as maximum, is AFFIRMED with MODIFICATION. Appellant Ida
Montesclaros is ORDERED to pay civil indemnity in the amount of sixteen thousand, six hundred sixty-six pesos and sixty-
seven centavos (P16,666.67), and moral damages in the amount of sixteen thousand, six hundred sixty-six pesos and sixty-
seven centavos (P16,666.67). The award of exemplary damages is DELETED.
SO ORDERED.

EN BANC

6. G.R. No. 166401[Formerly G.R. Nos. 158660-67] October 30, 2006

PEOPLE OF THE PHILIPPINES Appellee, vs. ALFREDO BON, CORONA, Appellant

DECISION

TINGA, J.:

Two critical issues emerge in this case. The first relates to whether the Court should affirm the conviction of appellant
Alfredo Bon (appellant) for six counts of rape and two counts of attempted rape, the victims being his then-minor nieces.
On that score, we affirm. As a consequence though, we are ultimately impelled to confront a question much broader in
both scope and import. While the Court had previously declined to acknowledge the constitutional abolition of the
death penalty through the 1987 Constitution,[1] we now find it necessary to determine whether the enactment of
Republic Act No. 9346 resulted in the statutory interdiction of the death penalty.

The second issue arises as we are compelled to review the maximum term of reclusion temporal in the sentence
imposed on appellant by the Court of Appeals for the two counts of attempted rape. The sentence was prescribed by the
appellate court prior to the enactment of Republic Act No. 9346 which ended the imposition of the death penalty in
the Philippines. The proximate concern as to appellant is whether his penalty for attempted qualified rape, which under
the penal law should be two degrees lower than that of consummated qualified rape, should be computed from death
or reclusion perpetua.
First, the antecedent facts.

I.

Eight (8) Informations[2] were filed within the period from 21 August 2000 to 23 February 2001 by the Assistant
Provincial Prosecutor of Gumaca, Quezon against appellant, charging him with the rape of AAA[3] and BBB,[4] the daughters
of his older brother. Appellant was accused of raping AAA in Criminal Case Nos. 6899-G, 6902-G, 6906-G, and 6908-G;
while he was accused of raping BBB in Criminal Case Nos. 6689-G, 6903-G, 6905-G, and 6907-G.[5] All these cases were
consolidated for trial. The rapes were alleged to have been committed in several instances over a span of six (6) years.

Both AAA and BBB testified against appellant, their uncle, and both identified him as the man who had raped
them. During trial, their respective birth certificates and the medical certificates executed by the doctor who physically
examined them were entered as documentary evidence.

AAA testified that she was only six (6) years old when she was first molested in 1994 in the house appellant had shared
with her grandmother.[6] She recounted that the incident took place when she and appellant were alone in the house.
Appellant touched her thighs and vagina, removed her clothes and inserted his penis into her vagina. Appellant threatened
that she and her parents would be killed should she disclose the incident to anyone. She thereafter stopped sleeping in
the house of her grandmother. It was only three (3) years after, in 1997, that she slept in the said house, yet again she
was sexually abused by appellant. She was then nine (9) years old.[7]
AAA recounted that at age eleven (11) in 1999, she was raped by appellant for the third time, again at the house
of her grandmother.[8] The following year, when she was twelve (12), she was abused for the fourth time by appellant.
This time, she was raped in an outdoor clearing[9] after having been invited there by appellant to get some vegetables.
While at the clearing, appellant forced her to lie down on a grassy spot and tried to insert his penis in her vagina. As she
cried in pain, appellant allegedly stopped.[10]

It was only on 12 June 2000 that she decided to reveal to her mother, CCC,[11] the brutish acts appellant had done
[12]
to her. Her mother thus filed a complaint against her uncle. AAA identified appellant in open court and presented as
documentary evidence her birth certificate to prove that she was born on 3 September 1988.[13]

BBB, on the other hand, testified that she was first raped by appellant in 1997 when she was ten (10) years
old, also at the house appellant shared with her grandmother. While alone in the house, appellant poked a knife at her,
removed her clothes and inserted his penis in her vagina. Despite the pain she felt, she could not resist appellant as he
was holding a knife. She did not report the rape to her parents out of fear of appellants threat that he would kill her.[14] BBB
further testified that in 1998 and 1999, she was raped again by appellant on several occasions, the rapes occurring under
threat of a bladed weapon, and regardless of the time of day.[15]
BBB stated that she was last raped by appellant on 15 January 2000.[16] On that night, she was sleeping beside her
sister AAA in the house of her grandmother when she felt appellant touching her body. She pushed him away but appellant
pulled her three (3) meters away from AAA towards the door. As appellant was holding a knife, BBB could not make any
noise to alert her sister. Appellant ordered her to remove her clothes and forced her to lie down. After he took off his
clothes, appellant placed himself on top of BBB and stayed there for three (3) minutes moving up and down. Thereafter,
she put on her clothes and returned to where her sister was. She added that although it was dark, she knew it was
appellant who had molested her as she was familiar with his smell. Since then, she never slept in her grandmothers house
again.[17]

It was on 14 June 2000 that BBB disclosed her harrowing experience to her mother. Prior to that, however, she
had already revealed the sexual abuses she had underwent to her sister AAA. Upon learning of the same, her mother
brought her to the police station and her statement was taken. Thereafter, she was brought to the hospital to be
examined. Furthermore, BBB explained that she only reported the abuses done to her on 14 June 2000 or five (5) months
after the last rape because she was afraid of appellants threat of killing her and her family.[18]
 The third witness for the prosecution was the mother, CCC. She testified that she only knew of the abuses done
on her daughters on 15 June 2000. Five months earlier, CCC became concerned after observing that BBB, on the pretext
of preparing clothes for a game, was packing more than enough clothes. She asked her other daughter, DDD, to dig into
the matter and the latter told her that BBB was planning to leave their house. Upon learning this, she sent somebody to
retrieve BBB. However, it was only five months after that incident that BBB confided to her mother that she was raped by
appellant. CCC lost no time in reporting the matter to the authorities and had BBB and AAA examined in the hospital. After
examination, it was confirmed that BBB was indeed sexually molested.[19]

CCC initially did not tell her husband about what had happened to their daughters because she was afraid that
her husband might kill appellant. It was only after appellant was arrested that she disclosed such fact to her husband.
After the arrest of appellant, his relatives became angry at CCC, and her mother-in-law avoided talking to her since then.[20]

The physician who examined BBB and AAA also testified for the prosecution. Dr. Purita T. Tullas (Dr. Tullas), medical officer
of Gumaca District Hospital, testified that she was the one who examined BBB and AAA, and thereafter, issued medical
certificates for each child. These medical certificates were presented in court.[21]

The medical certificate of BBB revealed that at the time of examination, there were no external sign of physical injury
found on her body. However, Dr. Tullas found that the labia majora and minora of BBB was slightly gaping, her vaginal
orifice was admitting two fingers without resistance and there were hymenal lacerations at three (3) oclock and eight (8)
oclock which might have happened a long time before her examination. Dr. Tullas concluded that there might have been
sexual penetration caused by a male sex organ for several times.[22]

AAAs medical certificate stated that at the time of examination, there were no external physical injuries apparent
on her body. AAAs labia majora and minora were well coaptated and the hymen was still intact. On direct examination,
Dr. Tullas said that it could happen that the hymen would still be intact despite sexual penetration with a person having
an elastic hymen. On the other hand, when asked on cross-examination, she stated that there was also the possibility that
no foreign body touched the labia of the pudendum of AAA.[23]

Only appellant testified for his defense, offering denial and alibi as his defense. He averred in court that from
1994 to 2000, he lived in the house of his parents which was about thirty (30) arm stretches away from the house of BBB
and AAA. He denied having raped BBB on 15 January 2000 because on said date he was at the house of his sister, two (2)
kilometers away from the house of his parents where the rape occurred, from 11:30 in the morning and stayed there until
early morning of the following day.[24]

He offered a general denial of the other charges against him by BBB and AAA. He claimed that he seldom saw
the two minors. He further asserted that prior to the institution of the criminal case against him he had a smooth
relationship with his nieces and the only reason the case was filed against him was that CCC, his sister-in-law and the
mother of his nieces, harbored ill-feelings towards his deceased father, who would call CCC lazy within earshot of other
family members.[25]

The RTC convicted appellant on all eight (8) counts of rape.[26] The RTC pronounced appellants defense of denial and alibi
as unconvincing, citing jurisprudence declaring denial and alibi as intrinsically weak defenses. The RTC concluded that
appellant failed to controvert the clear, candid and straightforward testimonies of his nieces. It further considered the
qualifying circumstances of minority of the victims and the relationship of the victims and appellant, the latter being the
formers relative by consanguinity within the third degree.

As the penalty imposed consisted of eight (8) death sentences, the records of the case were automatically elevated to
this Court for review. However, in the aftermath of the pronouncement of the Court in People v. Mateo[27] the present
case was transferred to the Court of Appeals for appropriate action and disposition.

On 29 December 2004, the Court of Appeals agreed with the rulings of the RTC in regard to six (6) of the eight
(8) death sentences imposed on appellant.[28] The appellate court ratiocinated, thus:

We have painstakingly gone over the record of these cases and find no cogent reason to deviate from the findings
of the trial court except in at least two (2) cases. The prosecutions case which was anchored mainly on the testimonies of
private complainants [BBB] and [AAA], deserve full faith and credit for being clear, precise and straightforward. Like the
trial court, We find no reason to disbelieve the private complainants. It was established with certitude that the accused
on several occasions sexually assaulted his nieces. The perpetration of the crimes and its authorship were proved by the
victims candid and unwavering testimonies both of whom had the misfortune of sharing the same fate in the hands of
their own uncle. The sincerity of [AAA] was made more evident when she cried on the witness stand in obvious distress
over what their uncle had done to her and her sister.[29]

The Court of Appeals downgraded the convictions in Criminal Case Nos. 6906 and 6908 to attempted rape. In these two
(2) cases, it was alleged that appellant had raped AAA in 1999 and on 11 June 2000, respectively. According to the
appellate court, it could not find evidence beyond reasonable doubt in those two (2) cases that appellant had
accomplished the slightest penetration of AAAs vagina to make him liable for consummated rape. It stressed that there
was not even moral certainty that appellants penis ever touched the labia of the pudendum, quoting portions of the
transcript of the stenographic notes where AAA was asked if appellant was then successful in inserting his penis into her
vagina and she answered in the negative.[30] Accordingly, the Court of Appeals reduced the penalties attached to the two
(2) counts of rape from death for consummated qualified rape to an indeterminate penalty of ten (10) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, for attempted rape.

Appellant, in his Supplemental Brief[31] before this Court, assails the findings of the Court of Appeals. He cites
inconsistencies in the testimony of BBB as to what really transpired on 15 January 2000. Particularly, appellant observes
that BBB testified on 6 June 2001 as to her rape on 15 January 2000. BBB, her sister and appellant had been sleeping side
by side. However, when BBB again testified on 3 July 2002, this time she stated that on that night, as she and her sister
AAA were sleeping in their room at their parents house (and not at her grandmothers), the accused passed through a
window, entered their room and raped her again.[32] Appellant also latches on the inconsistencies in BBBs testimony as to
the length of the duration of her rape on that day. In BBBs testimony on 6 June 2001, she said that appellant was atop her
for three (3) minutes while in the 3 July 2002 hearing, BBB stated that the rape lasted for only half a minute.

It must be observed though that BBB was at a tender age when she was raped in 2001. Moreover, these inconsistencies,
which the RTC and the Court of Appeals did not consider material, were elicited while BBB was testifying in open court.
Our observations in People v. Perez[33] on the appreciation of alleged inconsistencies in the testimony of rape victims who
happen to be minors are instructive, thus:
 We note that these alleged inconsistencies refer, at best, only to trivial, minor, and insignificant details. They
bear no materiality to the commission of the crime of rape of which accused-appellant was convicted.[[34]] As pointed
out by the Solicitor General in the Appellee's Brief, the seeming inconsistencies were brought about by confusion and
merely represent minor lapses during the rape victim's direct examination and cannot possibly affect her credibility. Minor
lapses are to be expected when a person is recounting details of a traumatic experience too painful to recall. The rape
victim was testifying in open court, in the presence of strangers, on an extremely intimate matter, which, more often than
not, is talked about in hushed tones. Under such circumstances, it is not surprising that her narration was less than letter-
perfect.[[35]] "Moreover, the inconsistency may be attributed to the well-known fact that a courtroom atmosphere can
affect the accuracy of testimony and the manner in which a witness answers questions."[[36]][37]
Further, the public prosecutor offered a convincing explanation on why BBB was confused on some points of her two
testimonies. Particularly in the Memorandum for the People[38] filed with the RTC, the public prosecutor creditably
explained the inconsistencies, thus:

[BBB]s testimony on July 3, 2002 might be contradictory to her first testimony on June 6, 2001, with
respect to the last rape on January 15, 2000, as regards the place of commissionhouse of her parents or house of accused;
and the length of time he stayed on her top 3 minutes or half-minute. But she remained consistent in her declaration that
on January 15, 2000, her uncle inserted his penis into her vagina, and he was moving while on her top then she felt
something came out from him. He was able to rape her because he threatened her with a knife or bladed weapon. Further,
the first she took the witness stand on June 6, 2001, she was made to recall the last rape, the first rape and many acts of
sexual abuses [sic] against her. She was even confused about her age when she was first raped by her uncle. After she
testified on November 14, 2001, for the separate charges of rapes in 1997, 1998 and 1999, she was able to recall more
clearly the last rape on January 15, 2000, which happened in her own house. These noted discrepancies as to the exact
place of commission accuseds house or victims house is not an essential element of the crime of rape and both houses
are situated in Brgy. Villa Padua Ilaya, Gumaca, Quezon, which is within the territorial jurisdiction of this Honorable Court.
x x x [39]

In addition, we share the lower courts disbelief of appellants proffered defenses of denial and alibi. These two defenses
are inherently the weakest as they are negative defenses. Mere denials of involvement in a crime cannot take precedence
over the positive testimony of the offended party. For alibi to prosper, it is not enough for the defendant to prove that he
was somewhere else when the crime was committed; he must likewise demonstrate that it is physically impossible for
him to have been at the scene of the crime at the time.[40]
In the case at bar, appellants alibi that he was at his sisters house barely two (2) kilometers away when the rape took
place on 15 January 2000 cannot be given credence by this Court. If we are to thread this line of reasoning, appellant could
have easily left his sisters house in the middle of the night, raped BBB, and then returned to his sisters house without
much difficulty and without anybody noticing his absence.

Well-settled is the rule that a categorical and positive identification of an accused, without any showing of ill-
motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial.[41] The defenses of denial and
alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence identifying appellant as
the perpetrator.[42] In this case, both BBB and AAA, minors and relatives of appellant, positively identified him as their
rapist in open court. The lower courts found no issue detracting from the credibility of such identification.
It is worthy to note that the alibi presented by appellant is limited to the 15 January 2000 rape of BBB. He offers nothing
to counteract the accusations against him involving the seven (7) other specific acts of rape other than the averment that
he did not know anything about the allegations propounded on him, an infinitesimal defense considering the evidence
against him.
Appellant does claim that the present case was merely instituted because of the grudge of CCC towards his deceased
father. It is outrageous to even suggest that a mother will subject her daughters to the humiliating experience of coming
before the court and narrating their harrowing experience just because she was tagged by her father-in-law as lazy. In
addition, CCCs father-in-law had died several years before the criminal charges against appellant were ever instituted. If
CCC truly wanted to retaliate and damage the reputation of her father-in-law, she could have done so when the latter was
still alive. No member of a rape victims family would dare encourage the victim to publicly expose the dishonor of the
family, more specifically if such accusation is against a member of the family, unless the crime was in fact committed.[43]

Besides, no sane woman, least of all a child, would concoct a story of defloration, allow an examination of her private
parts and subject herself to public trial or ridicule if she has not in truth, been a victim of rape and impelled to seek justice
for the wrong done to her. Testimonies of child-victims are normally given full weight and credit, since when a woman,
more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape has been
committed. Youth and immaturity are generally badges of truth and sincerity.[44] The weight of such testimonies may be
countered by physical evidence to the contrary, or indubitable proof that the accused could not have committed the rape,
but in the absence of such countervailing proof, these testimonies shall be accorded utmost value.

The twin aggravating circumstances of minority and relationship were properly appreciated in this case. The minority of
the victims and their relationship with appellant were aptly established

in the lower court proceedings. Not only did the prosecution allege in the Informations the ages of the victims when they
were raped but the prosecution also presented the birth certificates of BBB and AAA in court as documentary evidence to
prove that they were both minors when appellant raped them. Appellant, in open court, also admitted that that he was
the uncle of both victims being the brother of the victims father, and thus, a relative of the victims within the third degree
of consanguinity.

Furthermore, the delay in reporting the repulsive acts of appellant to BBB and AAA is understandably justified, considering
that appellant repeatedly threatened to kill them and their family should they disclose the incidents to anyone. It has been
held time and again that delay in revealing the commission of rape is not an indication of a fabricated charge. [45] Such
intimidation must be viewed in light of the victims perception and judgment at the time of the commission of the crime
and not by any hard and fast rule. It is enough that the intimidation produces a fear that if the victim does not yield to the
perverse impulses of the accused, something would happen to her at the moment, or even thereafter, as when she is
threatened with death if she would report the incident.[46]

At the same time, we agree with the Court of Appeals that the two counts of rape in Criminal Case Nos. 6906-G and 6908-
G were not proven beyond reasonable doubt, but only the two separate incidents of attempted rape.
It is to be noted that there is an attempt to commit rape when the offender commences its commission directly by overt
acts but does not perform all acts of execution which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.[47] In Criminal Case No. 6906-G, the records show that there was no penetration or
any indication that the penis of appellant touched the labia of the pudendum of AAA. This was evident in AAAs testimony
at the hearing on 17 October 2001, to wit:
 Q Do you remember of any unusual incident that happened to you when you were eleven years old?
A Yes, Mam. [sic]

Q What was that?

A He also touched my vagina and my other private parts and he inserted also his penis (into) my vagina.
[sic]

Q Was he able to insert his penis into your vagina?

A No, Mam. [sic]

Q Why?

A It was painful, Mam. [sic]

xxxx

Q How many times did he try to insert his penis into your vagina?

A Many times, Mam.[48] [sic]

AAA also testified in the same vein in Criminal Case No. 6908-G.

Q I am now through with Criminal Case No. 6906-G. In Criminal Case No. 6908-G, also for Rape. When was the
last time that this sexual abuse was committed by your Uncle?

A June 11, Mam. [sic]

Q What year?

A June 11, 2000, Mam. [sic]

xxxx

Q What did your Uncle do to you on June 11, 2000?

A He also removed my clothes, Mam. [sic]

Q And after removing your clothes, what did he do to you?

A He was trying to insert his penis into my vagina, Mam. [sic]

xxxx

Q And what did you feel when he was trying to insert his penis in your vagina?

A Painful, Mam. [sic]

Q And what did you do when you feel painful?

A I cried, Mam. [sic]

Q When you cried, what did your Uncle do, if any?

A He did not pursue what he was doing, Mam. [sic]

xxxx

Q And your Uncle was not able to penetrate his penis to your vagina?
 A No, Mam.[49] [sic]

In downgrading the offense committed and consequently decreasing the penalty, the CA declared:
It is carnal knowledge, not pain, that is the element to consummate rape. Indeed pain may be deduced
from the sexual act but accused cannot be convicted of rape by presuming carnal knowledge out of pain.
It is well-settled that complete penetration of the penis into the vagina is not necessary to convict for
consummated rape since the slightest penetration of one into the other will suffice. However, in People v.
Campuhan, the term slightest penetration was clarified to mean that there must be sufficient and
convincing proof of the penis indeed touching at the very least the labias of the female organ. Mere
epidermal contact between the penis and the external layer of the victims vagina (the stroking and the
grazing of the male organ upon the female organ or the mons pubis) categorizes the crime as attempted
rape or acts of lasciviousness. There must be positive proof of even the slightest penetration, more
accurately, the touching of the labias by the penis, before rape could be deemed consummated. We,
therefore, take exception to the finding of the trial court that when the accused was trying to insert his
penis into the childs vagina, the act proved painful to [AAA,] which made the accused stop from further
executing the act. From the testimony of private complainant, [AAA] in the afore-numbered cases, the
prosecution failed to demonstrate beyond any shadow of doubt that accused-appellants penis reached
the labia of the pudendum of AAAs vagina. There is no basis then to apply the rule that the introduction
of the penis into the aperture of the female organ (thereby touching the labia of the pudendum) already
consummates the case of rape. x x x [50]

It should be added that under Article 6 of the Revised Penal Code, there is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own spontaneous desistance. In the crime of rape, penetration
is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have
commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than
his own spontaneous desistance, the penetration, however slight, is not completed.[51]

The Court thus affirms the conclusions of the Court of Appeals that it has been established beyond reasonable doubt that
appellant is guilty of six (6) counts of rape and two (2) counts of attempted rape. However, in light of Rep. Act No. 9346,
the appropriate penalties for both crimes should be amended.
II.

We shall not dwell at length on the proper penalty imposable on appellant for the six (6) counts of rape. The sentence
of death imposed by the RTC and affirmed by the Court of Appeals can no longer be affirmed in view of Rep. Act No.
9346, titled An Act Prohibiting the Imposition of Death Penalty in the Philippines. Section 2 of the law mandates that in
lieu of the death penalty, the penalty of reclusion perpetua shall be imposed. Correspondingly, the Court can no longer
uphold the death sentences imposed by lower courts, but must, if the guilt of the accused is affirmed, impose instead
the penalty of reclusion perpetua, or life imprisonment when appropriate. Since the passage of Rep. Act No. 9346, the
Court has had occasion to effectuate such reduction in recent cases such as People v. Tubongbanua[52] and People v.
Cabalquinto.[53]

III.

The question of what should be the appropriate penalty for the two (2) counts of attempted rape proves to be the more
challenging but interesting question facing the Court.
The Court of Appeals had sentenced appellant, for the attempted rape of AAA, to an indeterminate penalty of ten (10)
years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum, for
each count of attempted rape. There is no doubt as to the validity of this sentence at the time it was meted prior to the
enactment of Rep. Act No. 9346. Article 51 of the Revised Penal Code establishes the penalty to be imposed upon the
principals of an attempted felony:

ART. 51. xxx A penalty lower by two degrees than that prescribed by law for the consummated felony shall be
imposed upon the principals in an attempt to commit a felony.[54]

What is the penalty lower by two degrees than that prescribed by law for attempted rape? Article 266-B of the Revised
Penal Code, which incorporates the amendments introduced by Rep. Act No. 8353, prescribes:

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law
spouse of the parent of the victim. x x x[55]

The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years of age and
to have been raped by her uncle, is death under Article 266-B of the Revised Penal Code. The determination of the penalty
two degrees lower than the death penalty entails the application of Articles 61 and 71 of the Revised Penal Code:
Art. 61. Rules of graduating penalties.For the purpose of graduating the penalties which, according to the
provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals
of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be
observed:

1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree
shall be that immediately following that indivisible penalty in the respective graduated scale prescribed
in Article 71 of this Code.[56]

xxxx

Article 71 of the Revised Penal Code (Article 71) warrants special attention, crucial as it is to our disposition of this
question. The provision reads:

Art. 71. Graduated scales. In the case in which the law prescribes a penalty lower or higher by one or more degrees
than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in which is comprised the given
penalty:

The courts, in applying such lower or higher penalty, shall observe the following graduated scales:

SCALE NO. 1

1. Death

2. Reclusion perpetua

3. Reclusion temporal
 4. Prision mayor

5. Prision correctional

6. Arresto mayor

7. Destierro

8. Arresto menor

9. Public censure

10. Fine[57]

xxxx

Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion temporal, which
was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape. Reclusion temporal is a
penalty comprised of three divisible periods, a minimum, a medium and a maximum.

At the same time, the Indeterminate Sentence Law prescribes that the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall be that which, in view of the attending circumstances, could
be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense. The purpose of the prescription of minimum and maximum
periods under the Indeterminate Sentence Law is to effect the privilege granted under the same law, for prisoners who
have served the minimum penalty to be eligible for parole per the discretion of the Board of Indiscriminate
Sentence.[58] Thus, convicts sentenced to suffer death penalty or life-imprisonment are ineligible under that law, as are
persons sentenced to reclusion perpetua, an indivisible penalty without minimum or maximum periods.[59]

Hence, the Court of Appeals sentenced appellant to suffer the penalty for attempted rape, with a maximum
penalty within the range of reclusion temporal, and a minimum penalty within the range of the penalty next lower,
or prision mayor. If Rep. Act No. 9346 had not been enacted, the Court would have affirmed such sentence without
complication. However, the enactment of the law has given rise to the problem concerning the imposable penalty.
Appellant was sentenced to a maximum term within reclusion temporal since that is the penalty two degrees lower than
death. With the elimination of death as a penalty, does it follow that appellant should now be sentenced to a penalty two
degrees lower than reclusion perpetua, the highest remaining penalty with the enactment of Rep. Act No. 9346? If it so
followed, appellant would be sentenced to prision mayorin lieu of reclusion temporal.
IV.

Obviously, our ruling on the appropriate penalty on appellant for attempted rape will affect not only appellant,
but several classes of convicts as well. Before we proceed with the discussion, the Court finds it necessary to make the
following qualification.

Prior to the enactment of Rep. Act No. 9346, the death penalty was imposable under two different frames of
reference. This was especially made clear with the 1993 amendments to the Revised Penal Code through Rep. Act No.
7659, or the Death Penalty Law. Under the Revised Penal Code, as amended, the death penalty was provided for in two
ways, namely: as the maximum penalty for reclusion perpetua to death, and death itself as an automatic and exclusive
penalty. Death as the automatic penalty was mandated for the crimes of qualified bribery if it is the public officer who
asks or demands such gift or present;[60] kidnapping or detention for the purpose of extorting ransom from the victim or
any other person;[61] destructive arson wherein death results;[62] and rape qualified by any of the several circumstances
enumerated under the law.

On the other hand, the penalty of reclusion perpetua to death was imposable on several crimes, including
murder,[63] qualified piracy,[64] and treason.[65] The imposition of the death penalty for crimes punishable by reclusion
perpetua to death depended on the appreciation of the aggravating and mitigating circumstances generally outlined in
Articles 13 and 14 of the Revised Penal Code. Reference to those two provisions was unnecessary if the penalty imposed
was death, as opposed to reclusion perpetua to death.

There is no need for now to discuss the effects of Rep. Act No. 9346 on the penalties for frustrated and
attempted felonies which were punishable by reclusion perpetua to death if consummated, or on accomplices and
accessories to such felonies. Such situations do not relate to the case of appellant, who was convicted of two (2) counts
of attempted rape, which, if consummated, of course would have carried prior to the enactment of Rep. Act 9346 the
penalty of death, and not reclusion perpetua to death.

The Court also recognizes that the graduation of penalties reckoned from reclusion perpetua to death differs from
that based on the exclusive penalty of death. For example, it has been held that the penalty two degrees lower
than reclusion perpetua to death is prision mayor.[66] In contrast, the Court has likewise held that for qualified rape in the
attempted stage, the penalty x x x two (2) degrees lower than the imposable penalty of death for the offense
charged x x x is reclusion temporal.[67] In People v. Tolentino,[68] we ruled that the accused, who had been sentenced to die
for the rape of his nine (9)-year old stepdaughter, was guilty only of attempted rape. In explaining that reclusion
temporal was the proper penalty, the Court, through then Chief Justice Davide, explained:

Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty
lower by two degrees than that prescribed by law for the consummated felony." In this case, the penalty
for the rape if it had been consummated would have been death, pursuant to Article 335 of the Revised
Penal Code, as amended by R.A. No. 7659, since [RT[69]] was eight years old and TOLENTINO was the
common-law spouse of [RTs] mother. The last paragraph thereof provides:

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim.

xxxx

The penalty in this case should have been reclusion temporal, which is the penalty lower by two
degrees than death. However, with the application of the Indeterminate Sentence Law, TOLENTINO may
be sentenced to an indeterminate imprisonment penalty whose minimum shall be within the range
of prision mayor and whose maximum shall be within the range of reclusion temporal in its medium
period pursuant to Article 64 (1) of the Revised Penal Code.[70]
 This dichotomy results from the application of Article 61 of the Revised Penal Code. Both reclusion perpetua and
death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, [w]hen the penalty prescribed for the crime
is composed of two indivisible penalties the penalty next lower in degree shall be that immediately following the lesser of
the penalties prescribed in the respective graduated scale. Hence, in passing sentence on those convicted of attempted
felonies which warranted the penalty of reclusion perpetua to death if consummated, the Court has consistently held that
penalty two degrees lower than reclusion perpetua to death is prision mayor. In contrast, if the penalty for the
consummated crime is the single indivisible penalty of death, as was prescribed for several crimes under Rep. Act No.
7659, Article 61(1) of the Revised Penal Code provides that the penalty prescribed for the felony is single and indivisible,
the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated
scale prescribed in Article 71. Thus, the proper penalty two degrees lower than death is reclusion temporal.
It is also for this reason that the controversy we are now addressing did not similarly arise after the enactment of
the 1987 Constitution, which prohibits the imposition of the death penalty subject to its subsequent readoption at the
choice of Congress. Generally, the highest penalty imposed under the Revised Penal Code was reclusion perpetua to death,
a penalty composed of two indivisible penalties. As a result, the Court had no occasion, after the passage of the 1987
Constitution, to consider the effect of the charter on penalties downgraded from a single indivisible penalty. It was under
Rep. Act No. 7659, passed in 1993, that some commonly occurring crimes, such as qualified rape and kidnapping for
ransom, were penalized with the single indivisible penalty of death.

The discussion for purposes of this decision will only center on crimes, such as qualified rape as defined in the
Revised Penal Code, as amended, for which the imposable penalty was death alone. Thus, our ruling will bear no
direct effect on the sentencing of accomplices and accessories or persons guilty of the attempted or
frustrated stage of felonies for which the imposable penalty was reclusion perpetua to death.

Hence, it should be understood that any reference forthwith to the penalty of death does not refer to the
penalty of reclusion perpetua to death.

V.

If there was a clear intent in Rep. Act No. 9346 to downgrade the penalties for convicts whose sentences had
been graduated beginning from death pursuant to Article 71, the Court would not hesitate to enforce such downgrading
based on clear statutory intent. However, nothing in Rep. Act No. 9346 expressly refers to those penalties imposed on
frustrated or attempted felonies, or on accessories and accomplices.
Section 1 of Rep. Act No. 9346 bears examination:

SECTION 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No.
Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal
Injection, is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise known
as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are
hereby repealed or amended accordingly.

If the penalties for attempted rape of a minor,[71] among others, were deemed to have been amended by virtue of Rep.
Act No. 9346, such amendment can be justified under the ambit of the repealing clause, which reads, all other laws,
executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly.
While this clause may, given its breadth, initially impress as the nature of a general repealing clause, it is in actuality an
express repealing clause. Section 1 specifically repeals all laws, executive orders and decrees insofar as they impose the
death penalty, and not merely such enactments which are inconsistent with Rep. Act No. 9346.

Section 1 arguably presents more problems in that regard with its utilization of the particular phrase insofar as
they impose the death penalty. We can entertain two schools of thought in construing this provision, both of them rooted
in literalist interpretations. First, it can be claimed that the present application of the penalties for attempted rape of a
minor (among many examples) does not impose the death penalty, since none of the convicts concerned would face
execution through the application of the penalty for attempted rape. Hence, the statutory provisions enforced in
determining the penalty for attempted rape, or other crimes not punishable by death, are not amended by Rep. Act No.
9346.

On the other hand, the operation of the provisions imposing the penalty for attempted rape of a minor necessarily
calls for the application, if not its literal imposition, of death as a penalty, in the context of applying the graduated scale
of penalties under Article 71 of the Revised Penal Code. If we were to construe impose as to mean apply, then it could be
argued that Article 71 was indeed amended by Rep. Act No. 9346. After all, the application of Article 71 to crimes such as
attempted rape of a minor call for the actual operation of the death penalty not only in theory, but as a means of
determining the proper graduated penalty.

On face value, the attractive worth of the firstly offered line of thinking is enhanced by its innate conservatism,
limiting as it would the effects of Rep. Act No. 9346. It also can be understood if confronted with the option of employing
either a liberal or a conservative construction, there is a natural tendency to employ the conservative mode. Further, the
reasoning is seemingly consistent with that employed by the Court in People v. Muoz,[72] a decision which will be
thoroughly analyzed in the course of this discussion.

If the true intent of Rep. Act No. 9346 was to limit the extent of the imposition of the death penalty to actual
executions, this could have been accomplished with more clarity. For example, had Section 1 read instead insofar as they
sentence an accused to death, there would have been no room for doubt that only those statutory provisions calling for
actual executions would have been repealed or amended. The inability of Congress to shape the repealing clause in so
specific a fashion does leave open the question whether Congress did actually intend to limit the operation of Rep. Act
No. 9346 to actual executions only.

But let us for now test that premise by assuming for the nonce that the legislative intent of Rep. Act No. 9346 was
to limit the prohibition of the law to the physical imposition of the death penalty, without extending any effect to the
graduated scale of penalties under Article 71 of the Revised Penal Code.

VI.

There are troubling results if we were to uphold, based on legislative intent, the interpretation of Rep. Act No.
9346 that limits its effects only to matters relating to the physical imposition of the death penalty.

Illustrations are necessary. The easy demonstration of iniquitous results is in the case of accomplices. Under
Article 267 of the Revised Penal Code, as amended, kidnapping for ransom was punishable by death. Let us say X and Y
were tried for the crime. X was charged as a principal for having directly participated in the kidnapping. Y was charged as
an accomplice for having allowed X to use his house to detain the victim, even though Y was abroad at the time of the
crime and otherwise had no other participation therein. Both X and Y were convicted by final judgment. Since X could no
longer be meted the death penalty, he is sentenced instead to reclusion perpetua. Ordinarily, Y as an accomplice should
receive the penalty next lower in degree, or reclusion temporal. Yet following the conservative interpretation of Rep. Act
No. 9346, the graduation of penalties remains unaffected with the enactment of the new law. Thus, under Article 71,
which would still take into account the death penalty within the graduated scale, Y, as an accomplice, would be sentenced
to reclusion perpetua, the same penalty as the principal.

It might be countered that part of the legislative intent of Rep. Act No. 9346, by retaining the graduated scale of
penalties under Article 71, was to equalize the penalties of principals and accomplices for crimes previously punishable by
death. We do not doubt that the legislature has the theoretical capability to amend the penal law in such fashion. Yet
given the drastic effects of equalizing the penalties for principals and accomplices, a step that runs contrary to entrenched
thought in criminal law, one could reasonably assume that a legislature truly oriented to enact such change would have
been candid enough to have explicitly stated such intent in the law itself. Of course, nothing in Rep. Act No. 9346, either
in the caption or in the provisions, explicates the intention to equalize the penalties for principals and accomplices in any
crime at all.

Moreover, it cannot be denied that it would, at bare minimum, seem strange that the penalties for principals and
accomplices are equalized in some crimes, and not in others. Let us return to our previous example of X and Y, but this
time, assume that they were charged for simple kidnapping, with no qualifying circumstance that would have resulted in
the imposition of the death penalty. Since the crime is not punishable by death, Rep. Act No. 9346 would have no effect
in the imposition of the penalty for simple kidnapping. Accordingly, X would have been sentenced to reclusion perpetua as
the principal, while Y would have been sentenced to reclusion temporal as an accomplice.

Since simple kidnapping is a comparatively lighter crime than kidnapping for ransom, the lesser penalties are
justified. Since Y was merely an accomplice to the crime of simple kidnapping, the imposition on him of a lighter penalty
than X is in accord with the Revised Penal Code and established juridical and legal thought. Less justifiable would be the
notion that in kidnapping for ransom, the principal and the accomplice would receive the same penalty, while in simple
kidnapping, the principal suffers a higher penalty than the accomplice. Frankly, there is no rational explanation for such a
disparity, and no legal justification other than the recognition that Congress has the power to will it so.

Admittedly, the impact of Rep. Act No. 9346 is less dramatic in relation to frustrated and attempted felonies which
were punishable by death if consummated. The consummated felony previously punishable by death would now be
punishable by reclusion perpetua. At the same time, the same felony in its frustrated stage would, under the foregoing
premise in this section, be penalized one degree lower from death, or also reclusion perpetua. It does not seem right, of
course, that the same penalty of reclusion perpetua would be imposed on both the consummated and frustrated felony.
However, the anomaly would be mainly in theory, as we recognize that those felonies previously punishable by death are
improbable of commission in their frustrated stage, unlike several felonies punishable by reclusion perpetua to
death,[73] such as murder, which may be frustrated.

Still, it cannot be denied that these felonies previously punishable by death are capable of commission in their
attempted stages and that the Revised Penal Code provides that the penalty for attempted felonies is a penalty lower by
two degrees than that prescribed by law for the consummated felony. The Court has thus consistently imposed reclusion
temporal, the penalty two degrees lower than death, as the maximum term for attempted felonies which, if
consummated, would have warranted the death penalty.[74]If it were to be insisted that Rep. Act No. 9346 did not affect
at all the penalties for attempted felonies, then those found guilty of the subject attempted felonies would still be
sentenced to reclusion temporal, even though the penalty lower by two degrees than that prescribed by law for the
consummated felony would now be prision mayor.

It should be pointed out that the interpretation of Rep. Act No. 9346 that would sanction a penalty for some
attempted felonies that is only one degree lower than the consummated crime would, again, be disharmonious and
inconsistent with the Revised Penal Code and established thought in criminal law. Conceding again that the legislature has
the discretion to designate the criminal penalties it sees fit, a regime that foists a differential theoretical basis for the
punishment of different attempted felonies resulting in discriminatory penalties is not only irrational but also, to say the
least, highly suspect. Considering that physical liberties are at stake, it would be a most cruel joke if such discriminatory
effects ensued not from deliberate legislative will, but from oversight.

VII.

The implementation of Rep. Act No. 9346 in a way that leaves extant the penalties for accomplices, accessories,
frustrated and attempted felonies, clearly results in illogical, iniquitous and inconsistent effects. In contrast, no similar
flaws ensue should we construe Rep. Act No. 9346 instead as not having barred the application of the death penalty even
as a means of depreciating penalties other than death. In particular, the operative amendment that would assure the
integrity of penalties for accomplices, accessories, frustrated and attempted felonies lies in Article 71, which ranks death
at the top of the scale for graduated penalties.

Simply put, the negation of the word death as previously inscribed in Article 71 will have the effect of
appropriately downgrading the proper penalties attaching to accomplices, accessories, frustrated and attempted felonies
to the level consistent with the rest of our penal laws. Returning to our previous examples, Y, the convicted accomplice in
kidnapping for ransom, would now bear the penalty of reclusion temporal, the penalty one degree lower than that the
principal X would bear (reclusion perpetua). Such sentence would be consistent with Article 52 of the Revised Penal Code,
as well as Article 71, as amended, to remove the reference to death. Moreover, the prospect of the accomplice receiving
the same sentence as the principal, an anomalous notion within our penal laws, would be eliminated. Thus, the same
standard would prevail in sentencing principals and accomplices to the crime of kidnapping in ransom, as that prescribed
to the crime of simple kidnapping.

The harmonization that would result if Rep. Act No. 9346 were construed as having eliminated the reference to
death in Article 71 would run across the board in our penal laws. Consistent with Article 51 of the Revised Penal Code,
those convicted of attempted qualified rape would receive the penalty two degrees lower than that prescribed by law,
now Rep. Act No. 9346, for qualified rape.
There are principles in statutory construction that will sanction, even mandate, this expansive interpretation of
Rep. Act No. 9346. The maxim interpretare et concordare legibus est optimus interpretandi embodies the principle that a
statute should be so construed not only to be consistent with itself, but also to harmonize with other laws on the same
subject matter, as to form a complete, coherent and intelligible systema uniform system of jurisprudence.[75] Interpreting
and harmonizing laws with laws is the best method of interpretation. x x x x This manner of construction would provide a
complete, consistent and intelligible system to secure the rights of all persons affected by different legislative and quasi-
legislative acts.[76] There can be no harmony between Rep. Act No. 9346 and the Revised Penal Code unless the later
statute is construed as having downgraded those penalties attached to death by reason of the graduated scale under
Article 71. Only in that manner will a clear and consistent rule emerge as to the application of penalties for frustrated and
attempted felonies, and for accessories and accomplices.

It is also a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the
state and liberally in favor of the accused.[77] If the language of the law were ambiguous, the court will lean more strongly
in favor of the defendant than it would if the statute were remedial, as a means of effecting substantial justice.[78]The law
is tender in favor of the rights of an individual.[79] It is this philosophy of caution before the State may deprive a person of
life or liberty that animates one of the most fundamental principles in our Bill of Rights, that every person is presumed
innocent until proven guilty.

Resort to the aforementioned principles in statutory construction would not have been necessary had Rep. Act
No. 9346 ineluctably stated that the repeal of all laws imposing the death penalty did not engender the corresponding
modification of penalties other than death, dependent as these are on death as a measure under the graduated scale of
penalties under Article 71. Admittedly, if this were indeed the intent of Congress, and such intent were unequivocally
expressed in Rep. Act No. 9346, the resulting inequities and inconsistencies we had earlier pointed out would have
remained. If that were to be the case, we would have acknowledged, perhaps tacitly, that such inequities and
inconsistencies fell part of the legislative intent. It does not speak well of a Congress to be deliberately inconsistent with,
or ignorant of its own prior enactments. Yet ultimately, Section 1 of Rep. Act No. 9346 is not expressive of such rash or
injudicious notions, as it is susceptible to a reading that would harmonize its effects with the precepts and practices that
pervade our general penal laws, and in a manner that does not defy the clear will of Congress.

VIII.

One who would like to advocate that Rep. Act No. 9346 did not correspondingly amend any of the penalties other
than death in our penal laws would most certainly invoke our ruling in People v. Muoz,[80] decided in 1989. Therein, a
divided Court ruled in that the constitutional bar on the imposition of the death penalty did not enact a corresponding
modification in the other periods [in penalties], there being no expression of such a requirement in Article III, Section
19(1) of the Constitution or indicat[ion] therein by at least clear and unmistakable implication.[81] In so concluding, the
Court made the oft-cited pronouncement that there was nothing in the 1987 Constitution which expressly declares the
abolition of the death penalty.[82]

It is time to re-examine Muoz and its continued viability in light of Rep. Act No. 9346. More precisely,
would Muoz as precedent deter the Court from ruling that Rep. Act No. 9346 consequently downgraded penalties other
than death?

It can be recalled that the accused in Muoz were found guilty of murder, which under the Revised Penal Code,
carried the penalty of reclusion temporal in its maximum period to death. The subject murders therein were not attended
by any modifying circumstance, and thus penalized in the penaltys medium term. Jurisprudence previous to Muozheld
that the proper penalty in such instances should be the higher half of reclusion temporal maximum, with reclusion
temporal maximum, divided into two halves for that purpose. Muoz rejected this formulation, holding instead that the
penalty should be reclusion perpetua. Towards this conclusion, the Court made the above-cited conclusions relating to
the constitutional abolition of the death penalty, and the charters effects on the other periods. Six justices dissented from
that ruling, and as recently as 1997, a member of the Court felt strongly enough to publish a view urging the reexamination
of Muoz.[83]

It would be disingenuous to consider Muoz as directly settling the question now befacing us, as the legal premises
behind Muoz are different from those in this case. Most pertinently, Muoz inquired into the effects of the Constitution on
the proper penalty for murder; while herein, we are ascertaining the effects of Rep. Act No. 9346 on the proper penalty
for attempted qualified rape. Muoz may have pronounced that the Constitution did not abolish the death penalty, but
that issue no longer falls into consideration herein, the correct query now being whether Congress has banned the
death penalty through Rep. Act No. 9346. Otherwise framed, Muoz does not preclude the Court from concluding that
with the express prohibition of the imposition of the death penalty Congress has unequivocally banned the same.

Muoz made hay over the peculiar formulation of Section 19(1), Article III, which provided that [n]either shall
death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for
it. Muoz and its progenies, have interpreted that provision as prohibiting the actual imposition of the death penalty, as
opposed to enacting an amendatory law that eliminates all references and applications of the death penalty in our
statutes. It can also be understood and appreciated that at the time Muoz was decided, it would have been polemical to
foster an unequivocal pronouncement that Section 19(1), Article III abolished the death penalty, since the very provision
itself acknowledged that Congress may nonetheless subsequently provide for the penalty for compelling reasons involving
heinous crimes, as Congress very well did just four (4) years after Muoz. No such language exists in Rep. Act No. 9346. Of
course, the legislature has the inherent and constitutional power to enact laws prescribing penalties for crimes, and the
Constitution will not prohibit Congress from reenacting the death penalty for compelling reasons involving heinous crimes.
Yet it was that express stipulation in the Constitution that dissuaded the Court from recognizing the constitutional
abolition of the death penalty; and there is no similar statutory expression in Rep. Act No. 9346, which could be construed
as evocative of intent similar to that of the Constitution.

The doctrine in Muoz that the constitutional prohibition on the imposition of the death penalty did not enact a
corresponding modification of other penalties is similarly irrelevant to this case, which calls for an examination as to
whether such corresponding modifications of other penalties arose as a consequence of Rep. Act No. 9346, and not the
Constitution.

For purposes of legal hermeneutics, the critical question is whether Rep. Act No. 9346 intended to delete the word
death as expressly provided for in the graduated scale of penalties under Article 71. Muoz did not engage in an analogous
inquiry in relation to Article 71 and the Constitution, for what was relevant therein was not the general graduated scale
of penalties, but the range of the penalties for murder. Herein, at bare minimum, no provision in Rep. Act No. 9346
provides a context within which the concept of death penalty bears retentive legal effect, especially in relation to Article
71. Unlike the Constitution, Rep. Act No. 9346 does expressly stipulate the amendment of all extant laws insofar as they
called for the imposition of the penalty of death.

The impression left by Muoz was that the use of the word imposition in the Constitution evinced the framers
intent to retain the operation of penalties under the Revised Penal Code. In the same vein, one might try to construe the
use of imposition in Rep. Act No. 9346 as a means employed by Congress to ensure that the death penalty, as applied in
Article 71, remain extant. If the use of imposition was implemented as a means of retaining death under Article 71, it
would have been a most curious, roundabout means indeed. The Court can tolerate to a certain degree the deliberate
vagueness sometimes employed in legislation, yet constitutional due process demands a higher degree of clarity when
infringements on life or liberty are intended. We have ruled, on due process grounds, as arbitrary and oppressive a tax
assessed on a standard characterized as nothing but blather in search of meaning.[84] In the matter of statutes that deprive
a person of physical liberty, the demand for a clear standard in sentencing is even more exacting.

Yet in truth, there is no material difference between imposition and application, for both terms embody the
operation in law of the death penalty. Since Article 71 denominates death as an element in the graduated scale of
penalties, there is no question that the operation of Article 71 involves the actual application of the death penalty as a
means of determining the extent which a persons liberty is to be deprived. Since Rep. Act No. 9346 unequivocally bars the
application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the
death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71.

We cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death
penalty in the graduation of the other penalties in our penal laws. Munoz cannot enjoin us to adopt such conclusion. Rep.
Act No. 9346 is not swaddled in the same restraints appreciated by Muoz on Section 19(1), Article III. The very Congress
empowered by the Constitution to reinstate the imposition of the death penalty once thought it best to do so, through
Rep. Act No. 7650. Within the same realm of constitutional discretion, Congress has reversed itself. It must be asserted
that today, the legal status of the suppression of the death penalty in the Philippines has never been more secure than at
any time in our political history as a nation.

Following Muoz, the sovereign people, through the 1987 Constitution, might not have willed the abolition of the
death penalty and instead placed it under a suspensive condition. As such, we affirmed the characterization of the death
penalty during the interregnum between the 1987 Constitution and its reimposition through law as being in a state of
hibernation.[85] No longer. It reawakened then it died; because the sovereign people, through Rep. Act No. 9346, banned
the death penalty. Only by an Act of Congress can it be reborn. Before that day, the consideration of death as a penalty is
bereft of legal effect, whether as a means of depriving life, or as a means of depriving liberty.

Despite our present pronouncement on the ban against of the death penalty, we do not acknowledge
that Muoz lacked legal justification when it was decided; that its application as precedent prior to Rep. Act No. 9346 was
erroneous; or that previous sentences imposed on convicts on the basis of Muoz were wrong. Muoz properly stood as the
governing precedent in the matter of sentences that passed finality prior to Rep. Act No. 9346; and the consistent reliance
by the courts on its doctrines entrenched its footing in criminal law jurisprudence.

IX.

Rep. Act No. 7659, in the course of reintroducing the death penalty in the Philippines, also effectively classified
the crimes listed therein as heinous, within constitutional contemplation. Such reclassification under Rep. Act No. 7659
was accompanied by certain legal effects other than the imposition of the death penalty, such as the increase in imposable
fines attached to certain heinous crimes.[86] The categorization of certain crimes as heinous, constituting as it does official
recognition that some crimes are more odious than others, has also influenced this Court in adjudging the proper
pecuniary indemnities awarded to the victims of these crimes. Hence, a general inclination persists in levying a greater
amount of damages on accused found guilty of heinous crimes.

It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not
correspondingly declassify those crimes previously catalogued as heinous. The amendatory effects of Rep. Act No. 9346
extend only to the application of the death penalty but not to the definition or classification of crimes. True, the penalties
for heinous crimes have been downgraded under the aegis of the new law. Still, what remains extant is the recognition by
law that such crimes, by their abhorrent nature, constitute a special category by themselves. Accordingly, Rep. Act No.
9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes.

X.

Having pronounced the statutory disallowance of the death penalty through Rep. Act No. 9346 and the
corresponding modification of penalties other than death through that statute, we now proceed to discuss the effects of
these rulings.

As to sentences not yet handed down, or affirmed with finality, the application is immediate. Henceforth, death,
as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of penalties.
For example, in the case of appellant, the determination of his penalty for attempted rape shall be reckoned not from two
degrees lower than death, but two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall
no longer be reclusion temporal, as ruled by the Court of Appeals, but instead, prision mayor.

There should be little complication if the crime committed was punishable by the free-standing penalty of death,
as utilized in Rep. Act No. 7659, as opposed to the ranged penalty of reclusion perpetua to death, as often used in the
Revised Penal Code and other penal laws. The facts of the present case do not concern the latter penalty, hence our
reluctance to avail of an extended discussion thereof. However, we did earlier observe that both reclusion perpetua and
death are indivisible penalties. Under Article 61 (2) of the Revised Penal Code, [w]hen the penalty prescribed for the crime
is composed of two indivisible penalties x x x x the penalty next lower in degree shall be that immediately following the
lesser of the penalties prescribed in the respective graduated scale. Hence, as we earlier noted, our previous rulings that
the penalty two degrees lower than reclusion perpetua to death is prision mayor.

Then there is the matter of whether retroactive effect should be extended to this new ruling, favorable as it is to
persons previously convicted of crimes which, if consummated or participated in as a principal, would have warranted the
solitary penalty of death. We see no choice but to extend the retroactive benefit. Article 22 of the Revised Penal Code
states that [p]enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a
habitual criminal[[87]] x x x x although at the time of the publication of such laws a final sentence has been pronounced
and the convict is serving the same. Given that we have ruled that Rep. Act No. 9346 downgraded the penalties for such
crimes, the benefit of Article 22 has to apply, except as to those persons defined as habitual criminal[s]. Indeed, Rep. Act
No. 9346 expressly recognized that its enactment would have retroactive beneficial effects, referring as it did to
persons x x x whose sentences were reduced to reclusion perpetua by reason of this Act.[88]

It cannot be discounted that by operation of Rep. Act No. 9346 and Article 22 of the Revised Penal Code, there
may be convicts presently serving their original sentences whose actual served terms exceed their reduced sentences. It
should be understood that this decision does not make operative the release of such convicts, especially as there may
be other reasons that exist for their continued detention. There are remedies under law that could be employed to
obtain the release of such prisoners, if warranted. Offices such as the Public Attorneys Office and non-governmental
organizations that frequently assist detainees possess the capacity and acumen to help implement the release of such
prisoners who are so entitled by reason of this ruling.

XI.

We close by returning to the matter of appellant Alfredo Bon. By reason of Rep. Act No. 9346, he is spared the
death sentence, and entitled to the corresponding reduction of his penalty as a consequence of the downgrading of his
offense from two (2) counts consummated rape to two (2) counts of attempted rape. For the six (6) counts of rape, we
downgrade the penalty of death to reclusion perpetua with no eligibility for parole, pursuant to Rep. Act No. 9346. For
each of the two (2) counts of attempted rape, we downgrade by one degree lower the penalty imposed by the Court of
Appeals. We hold that there being no mitigating or aggravating circumstances, the penalty of prision mayor should be
imposed in it medium period. Consequently, we impose the new penalty of two (2) years, four (4) months and one (1)
day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum.

Lastly, as to damages, the Court awards AAA P30,000.00 as civil indemnity, P25,000.00 as moral damages and P10,000.00
as exemplary damages for each count of attempted rape, it being the prevailing rate of indemnity as pronounced in the
recent case of People v. Miranda.[89]

Separately, the Court applies prevailing jurisprudence[90] in awarding to BBB and AAA P75,000.00 as civil
indemnity, P75,000.00 as moral damages and P25,000.00 as exemplary damages, for each count of consummated rape.

WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION.
The Court sentences appellant Alfredo J. Bon to the penalty of reclusion perpetua with no possibility of parole for each of
the six (6) counts of consummated rape committed against AAA in Criminal Case Nos. 6699, 6902, and against BBB in
Criminal Case Nos. 6689, 6903, 6905, and 6907. Appellant is further ORDERED to indemnify AAA and BBB for the crime of
consummated rape, in the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as
exemplary damages for each of them.

For the two (2) counts of attempted rape of AAA in Criminal Cases No. 6906 and 6908, appellant is hereby SENTENCED to
an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight
(8) years and one (1) of prision mayor as maximum for each count of attempted rape. In addition, appellant is ORDERED
to indemnify AAA for each of the two (2) counts of attempted rape in the amounts of P30,000.00 as civil
indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary damages.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

7. G.R. Nos. 119772-73 February 7, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NIGEL RICHARD GATWARD, and U AUNG WIN, accused. NIGEL
RICHARD GATWARD, accused-appellant.

REGALADO, J.:

The accession into our statute books on December 31, 1993 of Republic Act No. 7659,1 which authorized the re-
imposition of the death penalty and amended certain provisions of the Revised Penal Code and the Dangerous Drugs Act
of 1972, raised the level of expectations in the drive against criminality. As was to be expected, however, some
innovations therein needed the intervention of this Court for a judicial interpretation of amendments introduced to the
dangerous drugs law.2

The same spin-off of novelty, this time by the new provision fixing the duration of reclusion perpetua which theretofore
had not been spelled out with specificity in the Revised Penal Code, produced some conflicting constructions, more
specifically on whether such penalty is divisible or indivisible in nature. That is actually the major issue in these cases,
the factual scenario and the culpability of both accused having been relegated to secondary importance for lack of any
controversial features.

The antecedents being undisputed, and with a careful review and assessment of the records of this case having
sustained the same, we reproduce hereunder the pertinent parts of the decision of the trial court jointly deciding the
criminal cases separately filed against each of the accused. Although only one of them, Nigel Richard Gatward, has
appealed his conviction to us, for reasons hereinafter explained we shall likewise include the disposition by the court a
quo of the case against U Aung Win.

1. The lower court stated the cases against the accused, the proceedings therein and its findings thereon, as follows:

In Criminal Case No. 94-6268, the accused is charged with violating Section 4 of Republic Act No. 6425,
the Dangerous Drugs Act of 1972, allegedly in this manner:

"That on or about the 31st (sic) day of August 1994, in the vicinity of the
Ninoy Aquino International Airport, Pasay City, . . ., the above-named
accused not being authorized by law, did then and there wilfully,
unlawfully and feloniously transport heroin (2605.70 grams and 2632.0
grams) contained in separate carton envelopes with a total weight of
 5237.70 grams which is legally considered as a prohibited drug."
(Information dated Sept. 14, 1994)

In Criminal Case No. 94-6269, the accused is indicted for transgressing Section 3 of the Dangerous Drugs
Act of 1972, purportedly in this way:

"That on or about the 30th day of August 1994, at the arrival area of Ninoy Aquino
International Airport, Pasay City, x x x, the above-named accused not being authorized
by law, did, then and there wilfully, unlawfully and feloniously import and bring into the
Philippines 5579.80 grams of heroin which is legally considered as a prohibited drug."
(Information also dated Sept. 14, 1994)

Accused Nigel Richard Gatward in Criminal Case No. 94-6268 pleaded not guilty of the charge when
arraigned.

On the other hand, accused U Aung Win in Criminal Case No. 94-6269, assisted by Atty. Willy Chan of the
Public Attorney's Office of the Department of Justice, entered a plea of guilty of the crime charged upon
his arraignment. Since it is a capital offense, the Court asked searching questions to determine the
voluntariness and the full comprehension by the accused of the consequences of his plea. The accused
manifested that he was entering a plea of guilty voluntarily without having been forced or intimidated
into doing it. The nature of the charge was explained to him, with emphasis that the offense carries with
it the penalty of reclusion perpetua to death and his pleading guilty of it might subject him to the
penalty of death. The accused answered that he understood fully the charge against him and the
consequences of his entering a plea of guilty. The defense counsel likewise made an assurance in open
court that he had explained to U Aung Win the nature of the charge and the consequences of his
pleading guilty of it.

Having been thus apprised, the accused still maintained his plea of guilty of the offense charged against
him. Since the offense admitted by him is punishable by death, the case was still set for trial for the
reception of the evidence of the prosecution to prove the guilt and the degree of culpability of the
accused and that of the defense to establish mitigating circumstances.

Upon motion of the prosecution without any objection from te defense, these two cases were
consolidated and tried jointly, since the offenses charged arose from a series of related incidents and
the prosecution would be presenting common evidence in both.

At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a passenger of TG Flight No.
620 of the Thai Airways which had just arrived from Bangkok, Thailand, presented his luggage, a
travelling bag about 20 inches in length, 14 inches in width and 10 inches in thickness, for examination
to Customs Examiner Busran Tawano, who was assigned at the Arrival Area of the Ninoy Aquino
International Airport (NAIA) in Pasay City. The accused also handed to Tawano his Customs Declaration
No. 128417 stating that he had no articles to declare. When Tawano was about to inspect his luggage,
the accused suddenly left, proceeding towards the direction of Carousel No. 1, the conveyor for the
pieces of luggage of the passengers of Flight No. 620, as if to retrieve another baggage from it.

After having inspected the luggages of the other incoming passengers, Tawano became alarmed by the
failure of U Aung Win to return and suspected that the bag of the accused contained illegal articles. The
Customs Examiner reported the matter to his superiors. Upon their instructions, the bag was turned
over to the office of the Customs Police in the NAIA for x-ray examination where it was detected that it
contained some powdery substance. When opened, the bag revealed two packages containing the
substance neatly hidden in between its partitions. Representative samples of the substance were
examined by Elizabeth Ayonon, a chemist of the Crime Laboratory Service of the Philippine National
Police (PNP) assigned at the Arrival Area of the NAIA, and by Tita Advincula, another chemist of' the PNP
Crime Laboratory Service at Camp Crame, and found to be positive for heroin. The two chemists
concluded that the entire substance, with a total weight of 5,579.80 grams, contained in the two
packages found in the bag of U Aung Win, is heroin.

A manhunt was conducted to locate U Aung Win. The personnel of the Bureau of Immigration and
Deportation in the NAIA were asked to place the accused in the hold order list. The offices of the
different airlines in the airport were also alerted to inform the Enforcement and Security Service and the
Customs Police Division of the NAIA of any departing passenger by the name of U Aung Win who would
check in at their departure counters. A team was likewise sent to the Park Hotel in Belen St., Paco,
Manila, which accused U Aung Win had indicated in his Customs Declaration as his address in the
Philippines. But the accused was not found in that hotel.

At about 7:45 p.m. of the same date of August 30, 1994, Rey Espinosa, an employee of the Lufthansa
Airlines, notified the commander of the NAIA Customs Police District Command that a certain Burmese
national by the name of U Aung Win appeared at the check-in counter of the airline as a departing
passenger. Immediately, a team of law enforcers proceeded to the Departure Area and apprehended
the accused after he had been identified through his signatures in his Customs Declaration and in his
Bureau of Immigration and Deportation Arrival Card. Customs Examiner Tawano also positively
identified the accused as the person who left his bag with him at the Arrival Area of the NAIA.

During the investigation of U Aung Win, the agents of the Customs Police and the Narcotics Command
(NARCOM) gathered the information that the accused had a contact in Bangkok and that there were
other drug couriers in the Philippines. Following the lead, a team of lawmen, together with U Aung Win,
was dispatched to the City Garden Hotel in Mabini St., Ermita, Manila, to enable U Aung Win to
communicate with his contact in Bangkok for further instructions. While the police officers were
standing by, they noticed two persons, a Caucasian and an oriental, alight from a car and enter the
hotel. U Aung Win whispered to Customs Police Special Agent Edgar Quinones that he recognized the
two as drug couriers whom he saw talking with his contact in Bangkok named Mau Mau. The members
of the team were able to establish the identity of the two persons as accused Nigel Richard Gatward and
one Zaw Win Naing, a Thailander, from the driver of the hotel service car used by the two when they
arrived in the hotel. It was gathered by the law enforcers that Gatward and Zaw Win Naing were
scheduled to leave for Bangkok on board a KLM flight.

On August 31, 1994, operatives of the NAIA Customs Police mounted a surveillance operation at the
Departure Area for Gatward and Zaw Win Naing who might be leaving the country. At about 7:45 p.m.
of the same date, Special Agent Gino Minguillan of the Customs Police made a verification on the
passenger manifest of KLM Royal Dutch Airlines Flight No. 806, bound for Amsterdam via Bangkok,
which was scheduled to depart at about 7:55 that evening. He found the name "GATWARD/NRMR"
listed therein as a passenger for Amsterdam and accordingly informed his teammates who responded
immediately. Customs Police Captain Juanito Algenio requested Victorio Erece, manager of the KLM
airline at the NAIA, to let passenger Gatward disembark from the aircraft and to have his checked-in
luggage, if any, unloaded. The manager acceded to the request to off-load Gatward but not to the
unloading of his check-in bag as the plane was about to depart and to do so would unduly delay the
flight. However, Erece made an assurance that the bag would be returned immediately to the
Philippines on the first available flight from Bangkok. Upon his disembarkment, Gatward was invited by
the police officers for investigation.

At about 3:00 o'clock in the afternoon of September 1, 1994, Gatward's luggage, a travelling bag almost
of the same size as that of U Aung Win, was brought back to the NAIA from Bangkok through the Thai
Airways, pursuant to the request of Erece which was telexed in the evening of August 31, 1994, to the
KLM airline manager in Bangkok. Upon its retrieval, the law enforcers subjected the bag to x-ray
examinations in the presence of accused Gatward and some Customs officials. It was observed to
contain some powdery substance. Inside the bag were two improvised envelopes made of cardboard
 each containing the powdery substance, together with many clothes. The envelopes were hidden inside
the bag, one at the side in between a double-wall, the other inside a partition in the middle. Upon its
examination by Chemists Ayonon and Advincula pursuant to the request of Police Senior Inspector John
Campos of the NARCOM, the powdery substance contained in the two cardboard envelopes, with a net
weight of 5,237.70 grams, was found to be heroin.3

The court below made short shrift of the defense raised by herein appellant. Apart from the well-known rule on the
respect accorded to the factual findings of trial courts because of the vantage position they occupy in that regard, we
accept its discussion thereon by reason of its clear concordance with the tenets of law and logic. Again we quote:

Accused Gatward denied that the bag containing the heroin was his luggage. However, that the said bag
belongs to him is convincingly shown by the fact that the serial number of the luggage tag, which is KL
206835, corresponds to the serial number of the luggage claim tag attached to the plane ticket of the
accused. Moreover, as testified to by Manager Erece of the KLM airline, the luggage of Gatward located
in Container No. 1020 of KLM Flight No. 806 was the same luggage which was returned to the NAIA on
September 1, 1994, on board Thai Airways TG Flight No. 620, pursuant to the request made by him to
the KLM manager in Bangkok. The testimony of Erece should be given weight in accordance with the
presumption that the ordinary course of business has been followed. (Sec. 3(q), Rule 131, Revised Rules
on Evidence). No circumstance was shown by the defense which would create, a doubt as to the identity
of the bag as the luggage of Gatward which he checked in for KLM Flight No. 806 for Amsterdam with
stopover in Bangkok.

Accused Gatward was present during the opening of his bag and the examination of its contents. He was
also interviewed by some press reporters in connection with the prohibited drug found in the bag.
Gatward did not then disclaim ownership of the bag and its heroin contents. His protestations now that
the bag does not belong to him should be deemed as an afterthought which deserves no credence.

Gatward posited that he checked in a different bag when he bearded KLM Flight No. 806, explaining that
upon his apprehension by the agents of the NAIA Customs Police, he threw away the claim tag for the
said luggage. He alleged that the said bag contained, among other things, not only important documents
and papers pertaining to his cellular phone business in the pursuit of which he came to the Philippines,
but also money amounting to 1,500.00. Gatward stressed that the bag did not have any illegal articles in
it. If this were so, it was unusual for him, and certainly not in accordance with the common habit of man,
to have thrown away the claim tag, thereby in effect abandoning the bag with its valuable contents. Not
having been corroborated by any other evidence, and being rendered unbelievable by the circumstances
accompanying it as advanced by him, the stand of accused Gatward that his luggage was different from
that which contained the 5,237.70 grams of heroin in question commands outright rejection.4

The trial court was also correct in rejecting the challenge to the admissibility in evidence of the heroin retrieved from the
bag of appellant. While no search warrant had been obtained for that purpose, when appellant checked in his bag as his
personal luggage as a passenger of KLM Flight No. 806 he thereby agreed to the inspection thereof in accordance with
customs rules and regulations, an international practice of strict observance, and waived any objection to a warrantless
search. His subsequent arrest, although likewise without a warrant, was justified since it was effected upon the
discovery and recovery of the heroin in his bag, or in flagrante delicto.

The conviction of accused U Aung Win in Criminal Case No. 94-6269 is likewise unassailable. His culpability was not
based only upon his plea of guilty but also upon the evidence of the prosecution, the presentation of which was required
by the lower court despite said plea. The evidence thus presented convincingly proved his having imported into this
country the heroin found in his luggage which he presented for customs examination upon his arrival at the
international airport. There was, of course, no showing that he was authorized by law to import such dangerous drug,
nor did he claim or present any authority to do so.
2. It is, however, the penalties imposed by the trial court on the two accused which this Court cannot fully accept. This is
the presentation made, and the rationalization thereof, by the court below:

According to Section 20 of the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659, the
penalties for the offenses under Sections 3 and 4 of the said Act shall be applied if the dangerous drugs
involved, with reference to heroin, is 40 grams or more. Since the heroin subject of each of these two
cases exceeds 40 grams, it follows that the penalty which may be imposed on each accused shall range
from reclusion perpetua to death.

To fix the proper penalty, it becomes necessary to determine whether any mitigating or aggravating
circumstance had attended the commission of the offenses charged against the accused. With respect
to Gatward, no aggravating or mitigating circumstance was shown which might affect his criminal
liability. Relative to U Aung Win, no aggravating circumstance was likewise established by the
prosecution. However, the voluntary plea of guilty of the said accused, which was made upon his
arraignment and therefore before the presentation of the evidence of the prosecution, should be
appreciated as a mitigating circumstance.

Under Article 63 of the Revised Penal Code, which prescribes the rules for the application of indivisible
penalties, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the
lesser penalty shall be applied, if neither mitigating nor aggravating circumstances are present in the
commission of the crime, or if the act is attended by a mitigating circumstance and there is no
aggravating circumstance. However, this rule may no longer be followed in these cases, although the
penalty prescribed by law is reclusion perpetua to death, since reclusion perpetua, which was an
indivisible penalty before, is now a divisible penalty with a duration from 20 years and one (1) day to 40
years, in accordance with Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659.

Consequently, the penalty of "reclusion perpetua to death" should at present be deemed to fall within
the purview of the "penalty prescribed" which "does not have one of the forms specially provided for" in
the Revised Penal Code, the periods of which "shall be distributed," applying by analogy the prescribed
rules, in line with Article 77 of the Revised Penal Code. Pursuant to this principle, the penalty of
"reclusion perpetua to death" shall have the following periods: Death, as the maximum; thirty (30) years
and one (1) day to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30)
years, as the minimum.

As there is no mitigating or aggravating circumstance shown to have attended the commission of the offense charged
against Gatward, the penalty to be imposed on him shall be within the range of the medium period. On the other hand,
since U Aung Win is favored by one mitigating circumstance without any aggravating circumstance to be taken against
him, the penalty which may be imposed on him shall be within the range of the minimum period. (Art. 64(1) & (2),
Revised Penal Code)

The accused in these cases may not enjoy the benefit of Act No. 4103, the Indeterminate Sentence Law,
for under Section 2 of the said Act, its provisions shall not apply to those convicted of offenses punished
with life imprisonment, which has been interpreted by the Supreme Court as similar to the penalty
of reclusion perpetua as far as the non-application of the Indeterminate Sentence Law is concerned.
(People vs. Simon, G.R. No. 93028, July 29, 1994)5

On those considerations, the trial court handed down its verdict on March 3, 1995 finding both accused guilty as
charged, thus:

WHEREFORE, in Criminal Case No. 94-6268, accused Nigel Richard Gatward is found guilty beyond
reasonable doubt of transporting, without legal authority therefor, 5,237.70 grams of heroin, a
prohibited drug, in violation of Section 4 of Republic Act No. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended by Republic Act No. 7659; and there being no aggravating or mitigating
 circumstance shown to have attended the commission of the crime, he is sentenced to suffer the
penalty of imprisonment for thirty-five (35) years of reclusion perpetua and to pay a fine of Five Million
Pesos (P5,000,000.00).

In Criminal Case No. 94-6269, accused U Aung Win is found guilty beyond reasonable doubt of importing
or bringing into the Philippines 5,579.80 grams of heroin, a prohibited drug, without being authorized by
law to do so, contrary to Section 3 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as
amended by Republic Act No. 7659; and in view of the presence of one (1) mitigating circumstance of
voluntary plea of guilty, without any aggravating circumstance to offset it, he is sentenced to suffer the
penalty of imprisonment for twenty-five (25) years of reclusion perpetua and to pay a fine of One Million
Pesos (P1,000,000.00).

The heroin involved in these cases is declared forfeited in favor of the government and ordered turned
over to the Dangerous Drugs Board for proper disposal.

With costs de oficio.6

It is apropos to mention at this juncture that during the pendency of this appeal, and while awaiting the filing of
appellant's brief on an extended period granted to his counsel de parte, the Court received on September 5, 1995 a
mimeographed form of a so-called "Urgent Motion to Withdraw Appeal." It bears the signature of appellant but without
the assistance or signature of his counsel indicated thereon. No reason whatsoever was given for the desired withdrawal
and considering the ambient circumstances, the Court resolved on September 27, 1995 to deny the same for lack of
merit.7

On June 10, 1996, a letter was received from one H.M. Consul M.B. Evans of the British Embassy, Consular Section,
Manila, seeking an explanation for the aforesaid resolution and with the representation that "a convicted person who
did not, on reflection, wish to continue with an appeal would not need to prove merit but could simply notify the courts
of his wish to withdraw and that would be the end of the matter." To be sure, this is not the first time that members of
foreign embassies and consulates feel that they have a right to intrude into our judicial affairs and processes, to the
extent of imposing their views on our judiciary, seemingly oblivious or arrogantly disdainful of the fact that our courts
are entitled to as much respect as those in their own countries.

Such faux pas notwithstanding, a reply was sent to Mr. Evans informing him that, while there is no arrangement
whereby a foreign consular officer may intervene in a judicial proceeding in this Court but out of courtesy as enjoined in
Republic Act No. 6713, the unauthorized pleading of appellant was made under unacceptable circumstances as
explained in said reply; that it is not mandatory on this Court to dismiss an appeal on mere motion of an appellant; that
the Court does not discuss or transmit notices of judicial action except to counsel of the parties; and that, should he so
desire, he could coordinate with appellant's counsel whose address was furnished therein.8

In a resolution dated June 19, 1996, appellant's counsel was ordered to show cause why he should not be disciplinarily
dealt with or held for contempt for his failure to file appellant's brief. On July 24, 1996, said counsel and the Solicitor
General were required to comment on the aforestated motion of appellant to withdraw his appeal, no brief for him
having yet been filed. Under date of September 6, 1996, the Solicitor General filed his comment surprisingly to the effect
that the People interposed no objection to the motion to withdraw appeal. Appellant's counsel, on the other hand,
manifested on November 4, 1996 that he was willing to file the brief but he could not do so since appellant asked for
time to consult his pastor who would later inform said counsel, but neither that pastor nor appellant has done so up to
the present.

It would then be worthwhile to restate for future referential purposes the rules in criminal cases on the withdrawal of an
appeal pending in the appellate courts. The basic rule is that, in appeals taken from the Regional Trial Court to either the
Court of Appeals or the Supreme Court, the same may be withdrawn and allowed to be retracted by the trial court
before the records of the case are forwarded to the appellate court.9 Once the records are brought to the appellate
court, only the latter may act on the motion for withdrawal of appeal. 10 In the Supreme Court, the discontinuance of
appeals before the filing of the appellee's brief is generally permitted. 11 Where the death penalty is imposed, the review
shall proceed notwithstanding withdrawal of the appeal as the review is automatic and this the Court can do without the
benefit of briefs or arguments filed by the appellant. 12

In the case at bar, however, the denial of the motion to withdraw his appeal by herein appellant is not only justified but
is necessary since the trial court had imposed a penalty based on an erroneous interpretation of the governing law
thereon. Thus, in People vs. Roque, 13 the Court denied the motion of the accused to withdraw his appeal, to enable it to
correct the wrongful imposition by the trial court of the penalty of "reclusion temporal to reclusion perpetua" for the
crime of simple rape, in clear derogation of the provisions of Article 335 of the Revised Penal Code and the
Indeterminate Sentence Law. Similarly, in another case, 14 the motion to withdraw his appeal by the accused, whose
guilt for the crime of murder was undeniable and for which he should suffer the medium period of the imposable
penalty which is reclusion perpetua, was not allowed; otherwise, to permit him to recall the appeal would enable him to
suffer a lesser indeterminate sentence erroneously decreed by the trial court which imposed the minimum of the
penalty for murder, that is, reclusion temporal in its maximum period.

In the cases at bar, the same legal obstacle constrained the Court to deny appellant's motion to withdraw his appeal.
The trial court had, by considering reclusion perpetua as a divisible penalty, imposed an unauthorized penalty on both
accused which would remain uncorrected if the appeal had been allowed to be withdrawn. In fact, it would stamp a nihil
obstantium on a penalty that in law does not exist and which error, initially committed by this Court in another case on
which the trial court relied, had already been set aright by this Court.

3. As amended by Republic Act No. 7569, the respective penalties imposable under Sections 3 and 4 of the Dangerous
Drugs Act, in relation to Section 20 thereof, would range from reclusion perpetua to death and a fine of P500,000.00 to
P10,000,000.00 if the quantity of the illegal drug involved, which is heroin in this case, should be 40 grams or more. In
the same amendatory law, the penalty of reclusion perpetua is now accorded a "defined duration" ranging from twenty
(20) years and one (1) day to forty (40) years, through the amendment introduced by it to Article 27 of the Revised Penal
Code.

This led the trial court to conclude that said penalty is now divisible in nature, and that "(c)onsequently, the penalty of
"reclusion perpetua to death" should at present be deemed to fall within the purview of the "penalty prescribed" which
"does not have one of the forms specially provided for" in the Revised Penal Code, and the periods of which "shall be
distributed" by an analogous application of the rules in Article 77 of the Code. Pursuant to its hypothesis, the penalty of
"reclusion perpetua to death shall have the following periods: death, as the maximum; thirty (30) years and one (1) day
to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum." 15

We cannot altogether blame the lower court for this impasse since this Court itself inceptively made an identical
misinterpretation concerning the question on the indivisibility of reclusion perpetua as a penalty. In People
vs. Lucas, 16 the Court was originally of the view that by reason of the amendment of Article 27 of the Code by Section 21
of Republic Act No. 7569, there was conferred upon said penalty a defined duration of 20 years and 1 day to 40 years;
but that since there was no express intent to convert said penalty into a divisible one, there having been no
corresponding amendment to Article 76, the provisions of Article 65 could be applied by analogy. The Court then
declared that reclusion perpetua could be divided into three equal portions, each portion composing a period. In
effect, reclusion perpetua was then to be considered as a divisible penalty.

In a subsequent re-examination of and a resolution in said case on January 9, 1995, occasioned by a motion for
clarification thereof, 17 the Court en banc realized the misconception, reversed its earlier pronouncement, and has since
reiterated its amended ruling in three succeeding appellate litigations. 18 The Court, this time, held that in spite of the
amendment putting the duration of reclusion perpetua at 20 years and 1 day to 40 years, it should remain as an
indivisible penalty since there was never any intent on the part of Congress to reclassify it into a divisible penalty. This is
evident from the undisputed fact that neither Article 63 nor Article 76 of the Code had been correspondingly altered, to
wit:
 Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal
Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the
amended R.A. No. 6425 provides for the penalty of reclusion perpetua to death whenever the dangerous
drugs involved are of any of the quantities stated therein. If Article 63 of the Code were no longer
applicable because reclusion perpetua is supposed to be a divisible penalty, then there would be no
statutory rules for determining when either reclusion perpetua or death should be the imposable
penalty. In fine, there would be no occasion for imposing reclusion perpetua as the penalty in drug
cases, regardless of the attendant modifying circumstances.

This problem revolving around the non-applicability of the rules in Article 63 assumes serious
proportions since it does not involve only drug cases, as aforesaid. Under the amendatory sections of
R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treason by a Filipino
(Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and serious
illegal detention (Section 8), robbery with homicide (Section 9), destructive arson (Section 10), rape
committed under certain circumstances (Section 11), and plunder
(Section 12).

In the same resolution, the Court adverted to its holding in People vs. Reyes, 19 that while the original Article 27 of the
Revised Penal Code provided for the minimum and the maximum ranges of all the penalties therein, from arresto menor
to reclusion temporal but with the exceptions of bond to keep the peace, there was no parallel specification of either the
minimum or the maximum range of reclusion perpetua. Said article had only provided that a person sentenced to suffer
any of the perpetual penalties shall, as a general rule, be extended pardon after service thereof for 30 years. Likewise, in
laying down the procedure on successive service of sentence and the application of the three-fold rule, the duration of
perpetual penalties is computed at 30 years under Article 70 of the Code.

Furthermore, since in the scales of penalties provided in the Code, specifically those in Articles 25, 70 and 71, reclusion
perpetua is the penalty immediately higher than reclusion temporal, then its minimum range should by necessary
implication start at 20 years and 1 day while the maximum thereunder could be co-extensive with the rest of the natural
life of the offender. However, Article 70 provides that the maximum period in regard to service of the sentence shall not
exceed 40 years.

Thus, the maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of
years which the convict must serve in order to be eligible for pardon or for the application of the three-fold rule. Under
these accepted propositions, the Court ruled in the motion for clarification in the Lucas case that Republic Act No. 7659
had simply restated existing jurisprudence when it specified the duration of reclusion perpetua at 20 years and 1 day to
40 years.

The error of the trial court was in imposing the penalties in these cases based on the original doctrine in Lucas which
was not yet final and executory, hence open to reconsideration and reversal. The same having been timeously rectified,
appellant should necessarily suffer the entire extent of 40 years of reclusion perpetua, in line with that reconsidered
dictum subsequently handed down by this Court. In passing, it may be worth asking whether or not appellant
subsequently learned of the amendatory resolution of the Court under which he stood to serve up to 40 years, and that
was what prompted him to move posthaste for the withdrawal of his appeal from a sentence of 35 years.

4. The case of U Aung Win ostensibly presents a more ticklish legal poser, but that is not actually so. It will be recalled
that this accused was found guilty and sentenced to suffer the penalty of reclusion perpetua supposedly in its minimum
period, consisting of imprisonment for 25 years, and to pay a fine of P1,000,000.00. He did not appeal, and it may be
contended that what has been said about the corrected duration of the penalty of reclusion perpetuawhich we hold
should be imposed on appellant Gatward, since reclusion perpetua is after all an indivisible penalty, should not apply to
this accused.

Along that theory, it may be asserted that the judgment against accused U Aung Win has already become final. It may
also be argued that since Section 11(a) of Rule 122 provides that an appeal taken by one accused shall not affect those
who did not appeal except insofar as the judgment of the appellate court is favorable and applicable to the latter, our
present disposition of the correct duration of the penalty imposable on appellant Gatward should not affect accused U
Aung Win since it would not be favorable to the latter. To use a trite and tired legal phrase, those objections are more
apparent than real.

At bottom, all those postulations assume that the penalties decreed in the judgment of the trial court are valid,
specifically in the sense that the same actually exist in law and are authorized to be meted out as punishments. In the
case of U Aung Win, and the same holds true with respect to Gatward, the penalty inflicted by the court a quo was a
nullity because it was never authorized by law as a valid punishment. The penalties which consisted of aliquot one-third
portions of an indivisible penalty are self-contradictory in terms and unknown in penal law. Without intending to sound
sardonic or facetious, it was akin to imposing the indivisible penalties of public censure, or perpetual absolute or special
disqualification, or death in their minimum or maximum periods.

This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or lower than the one
imposable under the law but with both penalties being legally recognized and authorized as valid punishments. An
erroneous judgment, as thus understood, is a valid judgment. 20 But a judgment which ordains a penalty which does not
exist in the catalogue of penalties or which is an impossible version of that in the roster of lawful penalties is necessarily
void, since the error goes into the very essence of the penalty and does not merely arise from the misapplication
thereof. Corollarily, such a judgment can never become final and executory.

Nor can it be said that, despite the failure of the accused to appeal, his case was reopened in order that a higher penalty
may be imposed on him. There is here no reopening of the case, as in fact the judgment is being affirmed but with a
correction of the very substance of the penalty to make it conformable to law, pursuant to a duty and power inherent in
this Court. The penalty has not been changed since what was decreed by the trial court and is now being likewise
affirmed by this Court is the same penalty of reclusion perpetua which, unfortunately, was imposed by the lower court in
an elemental form which is non-existent in and not authorized by law. Just as the penalty has not been reduced in order
to be favorable to the accused, neither has it been increased so as to be prejudicial to him.

Finally, no constitutional or legal right of this accused is violated by the imposition upon him of the corrected duration,
inherent in the essence and concept, of the penalty. Otherwise, he would be serving a void sentence with an illegitimate
penalty born out of a figurative liaison between judicial legislation and unequal protection of the law. He would thus be
the victim of an inadvertence which could result in the nullification, not only of the judgment and the penalty meted
therein, but also of the sentence he may actually have served. Far from violating any right of U Aung Win, therefore, the
remedial and corrective measures interposed by this opinion protect him against the risk of another trial and review
aimed at determining the correct period of imprisonment.

WHEREFORE, the judgment of the.court a quo, specifically with regard to the penalty imposed on accused-appellant
Nigel Richard Gatward in Criminal Case No. 94-6268 and that of accused U Aung Win in Criminal Case No. 94-6269, is
hereby MODIFIED in the sense that both accused are sentenced to serve the penalty of reclusion perpetua in its entire
duration and full extent. In all other respects, said judgment is hereby AFFIRMED, but with costs to be assessed against
both accused in all instances of these cases. SO ORDERED.

8. [G.R. No. 128106-07. January 24, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GONZALO BALDOGO, accused-appellant.

DECISION
CALLEJO, SR., J.:
 This is an automatic review of the Joint Judgment,[i] dated October 18, 1996, of the Regional Trial Court, Branch 52,
Puerto Princesa City, finding accused-appellant Gonzalo Baldogo alias Baguio guilty beyond reasonable doubt of the crime
of Murder in Criminal Case No. 12900 and Kidnapping in Criminal Case No. 12903. The trial court imposed on accused-
appellant the supreme penalty of death in Criminal Case No. 12900 and reclusion perpetua in Criminal Case No. 12903.

I. The Indictments

Two Informations were filed against accused-appellant and Edgar Bermas alias Bunso which read:

That on or about the 22nd day of February, 1996 in the evening at the residence of Mr. Julio Camacho of Iwahig Prison
and Penal Farm, Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court, the said accused
who were both convicted by final judgment of the offense of Homicide and while already serving sentence, committed
the above name offense by conspiring and confederating together and mutually helping one another, with intent to kill,
with treachery and evident premeditation and while armed with a bolo, did then and there wilfully, unlawfully and
feloniously assault, attack and hack one JORGE CAMACHO, hitting him and inflicting upon him mortal wounds at the
different parts of his body, which was the direct and immediate cause of his death shortly thereafter.

CONTRARY TO LAW, with the aggravating circumstances of treachery, evident[,] premeditation and recidivism. Puerto
Princesa City, Philippines, March 5, 1996.[1]

xxx

That on Thursday, February 22, 1996 at more or less 8:15 in the evening at the Victims residence, Iwahig Prison and
Penal Farm, Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court, the said accused while
serving sentence at the Central Sub-Colony both for the offense of Homicide, conspiring and confederating together and
mutually helping one another, commits (sic) another offense, kidnapping one JULIE E. CAMACHO, a girl 12 years of age,
and brought her to the mountains, where said Julie E. Camacho was detained and deprived of her liberty fro [sic] more
than five days.

CONTRARY TO LAW and attended by the aggravating circumstance of recidivism.[2]

Accused-appellant was arraigned on June 28, 1996 and entered a plea of not guilty to both charges.[3] Edgardo Bermas
died before he could be arraigned.[4] The two cases were ordered consolidated and a joint trial thereafter ensued.
The prosecution presented four witnesses, namely, Julie Camacho, Dr. Edilberto Joaquin, Esteban Mamites and Julio
Camacho, Sr., and offered documentary and object evidence on its evidence-in-chief.

II. The Antecedent Facts

Julio Camacho, Sr. and his wife, Heather Esteban, had four children, namely: Julio, Jr., a student of the Palawan State
University in Puerto Princesa City and who stayed in Guaygo, Puerto Princesa City; Jorge, who was fourteen years
old;[5] Julie, who was 12 years old and a grade six elementary pupil at the Iwahig Elementary School and Jasper, who was
eight years old. Julio Sr. was employed as a security guard in the Iwahig Prison and Penal Colony. He and his family lived
in a compound inside the sub-colony. Edgardo Bermas alias Bunso, an inmate of the penal colony, was assigned as a
domestic helper of the Camacho spouses. Accused-appellant alias Baguio, also an inmate of the colony, was assigned in
January 1996 as a domestic helper of the Camacho family. Both helpers resided in a hut located about ten meters away
from the house of the Camacho family.
In the evening of February 22, 1996, accused-appellant and Bermas served dinner to Julio Sr., Jorge and Julie in the
house of the Camachos. At about 7:30 p.m., Julio Sr. left the house to attend a bible study at the dormitory in the
Agronomy Section of the Penal Farm. Heather and her son, Jasper, were in Aborlan town. Only Jorge and his sister Julie
were left in the house.
After Julio Sr. had left the house, Julie went to the sala to study her assignment. Momentarily, Bermas called Julie
from the kitchen saying: Jul, tawag ka ng kuya mo. Julie ignored him.After five minutes, Bermas called her again but Julie
again ignored him. Julie was perturbed when she heard a loud sound, akin to a yell, Aahh! Ahh! coming from the kitchen
located ten meters from the house. This prompted Julie to stand up and run to the kitchen. She was appalled to see Jorge
sprawled on the ground near the kitchen, face down and bloodied. The vicinity was lighted by a fluorescent lamp. Standing
over Jorge were accused-appellant and Bermas, each armed with a bolo.[6] The shirt of Bermas was bloodied.[7] Julie was
horrified and so petrified that although she wanted to shout, she could not. She ran back to the sala with accused-
appellant and Bermas in pursuit. Accused-appellant overtook Julie, tied her hands at her back with a torn t-shirt and placed
a piece of cloth in her mouth to prevent her from shouting for help from their neighbors. Bermas went to the room of
Julies brothers. Accused-appellant dragged Julie outside the house and towards the mountain. Bermas tarried in the
house.
With the aid of a flashlight, accused-appellant, with Julie in tow, walked for hours towards the direction of the
mountain. About a kilometer away from the house of the Camachos, accused-appellant and Julie stopped under a big
tamarind tree at the foot of the mountain. After about thirty minutes, Bermas arrived with a kettle and raw rice. Accused-
appellant and Bermas retrieved a bag containing their clothing and belongings from the trunk of the tamarind tree. They
untied Julie and removed the gag from her mouth. The three then proceeded to climb the mountain and after walking for
six hours or so, stopped under a big tree where they spent the night. When the three woke up in the morning of the
following day, February 23, 1996, they continued their ascent of the mountain. Seven hours thereafter, they started to
follow a descending route. Accused-appellant and Bermas told Julie that they would later release her. At about 3:00 p.m.,
Bermas left accused-appellant and Julie. However, accused-appellant did not let go of Julie. The two survived on sugar and
rice cooked by accused-appellant.Once, they saw uniformed men looking for Julie. However, accused-appellant hid Julie
behind the tree. She wanted to shout but he covered her mouth.
In the early morning of February 28, 1996, accused-appellant told Julie that he was leaving her as he was going to
Puerto Princesa City. He told her to fend for herself and return to the lowland the next day. After their breakfast, accused-
appellant left Julie alone to fend for herself. A few hours after accused-appellant had left, Julie decided to return to the
lowlands. She found a river and followed its course toward Balsaham until she saw a hut. She called upon its occupant
who introduced himself as Nicodemus. Julie sought help from him. When asked by Nicodemus if she was the girl whom
the police authorities were looking for, she replied in the affirmative. Nicodemus brought Julie to Balsaham where they
met some personnel of the penal colony and police officers, and Nicodemus turned Julie over for custody to them.
Meanwhile, Julio, Sr. arrived home after his bible study at about 9:00 p.m. on February 22, 1996. He noticed that the
television set was switched on but no one was watching it. He looked for his children but they were nowhere to be
found. He then proceeded to the hut occupied by accused-appellant and Bermas but he also failed to find them. Julio Sr.
then rushed to the house of his older brother, Augusto Camacho, to look for his children, but Augusto told him that Jorge
and Julie were not there. Julio Sr. then sought the help of Romualdo Esparagoza, a trustee of the penal farm. The two
rushed back to the Camacho residence and proceeded to the kitchen where they noticed blood on the floor. The two
proceeded to the dirty kitchen and saw the bloodied body of Jorge dumped about three meters away from the dirty
kitchen. Julio Sr. and Esparagoza then brought Jorge to the Iwahig Hospital where he was pronounced dead on arrival at
12:40 a.m. of February 23, 1996. Dr. Edilberto Joaquin examined the cadaver and found that the victim was stabbed on
the breast once and at the back seven times. He sustained a lacerated wound on the neck. The layers of the neck, trachea
and esophagus of Jorge had been cut. Jorge did not sustain any defensive wound. Dr. Joaquin performed an autopsy of
the cadaver and signed a medical certificate with his findings, thus:

MEDICAL CERTIFICATE
GENERAL DATA:

JORGE CAMACHO y ESTEBAN, 14 years old, student, resident of Iwahig Prison and Penal Farm, approximately 53 inches
in-height, was brought to the hospital, (DOA) dead on arrival at 12:40 AM, 23 February 1996, approximate time of death
8:00 P.M. February 22, 1996.

FINDINGS

1. Stab wound, deep, penetrating, approximately 1 inch in length, at the level of the xyphoid process, anteriorly.
2. Stab wound, chest, back, approximately 1 inch length, right midclavicular line, level of the 3rd rib.
3. Stab wound, back, right midclavicular line, level of the 5th rib.
4. Stab wound, back, approximately 1 inch length level of the 5th rib, left midclavicular line.
5. Stab wound, back, approximately 1 inch length, right midclavicular line, 6th rib.
6. Stab wound, back, approximately 1 inch length, right midclavicular line, level of the 4th lumbar region.
7. Stab wound, back, approximately 1 inch in length, right third lumbar region, deep, penetrating involving the
liver.
8. Stab wound, back, approximately 3/4 inch, at the level of the 2nd lumbar region.
9. Lacerated wound, neck, anteriorly, deep, penetrating, cutting the layers of the neck and the trachea and
esophagus.

CAUSE OF DEATH

Hypovolemia due to severe hemorrhage secondary to multiple stab wounds and laceration of the neck.[8]

Wounds numbers 7 and 9 were fatal. It was possible that two sharp-edged and sharp pointed weapons were used in
stabbing Jorge and that two assailants stabbed the victim.[9]
On February 29, 1996, Julie gave her sworn statement and a supplemental sworn statement to the police
investigators.[10] Julio Sr. suffered mental anguish and sleepless nights because of the death of Jorge.
The prosecution adduced in evidence excerpts of the personal file of accused-appellant kept in the penal colony
showing that he had been convicted of homicide by the Regional Trial Court of Baguio City and that he commenced serving
sentence on November 19, 1992 and that the minimum term of his penalty was to expire on August 16, 1997.[11]

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant denied killing Jorge and kidnapping Julie. Accused-appellant asserted that Julie implicated him
because she was coached and rehearsed. He testified that he was assigned as a helper in the house of Augusto Camacho,
the Chief of the Industrial Section of the colony and the older brother of Julio Sr. Augusto told accused-appellant that his
brother, Julio Sr., wanted to have accused-appellant transferred as his domestic helper. However, accused-appellant
balked because he had heard from Edgardo Bermas, the helper of Julio Sr., that the latter was cruel and had been
maltreating Bermas. Nonetheless, in December 1995, accused-appellant was transferred as a domestic helper of Julio
Sr. Accused-appellant confirmed that indeed Julio Sr. was cruel because whenever the latter was angry, he maltreated
accused-appellant by spanking and boxing him. These would occur about two times a week.
On February 22, 1996, at about 6:30 p.m., accused-appellant took his dinner in the kitchen. At about 7:00 p.m., while
he was already in his quarters and preparing to sleep, Bermas arrived, armed with a bloodied bolo measuring about 1 feet
long and told accused-appellant that he (Bermas) had just killed Jorge to avenge the maltreatment he received from Julio
Sr.Bermas warned accused-appellant not to shout, otherwise he will also kill him. Petrified, accused-appellant kept
silent. Bermas then brought accused-appellant to the kitchen in the house of the Camachos where accused-appellant saw
the bloodied body of Jorge sprawled near the kitchen. Bermas called Julie three times, telling her that her brother was
calling for her but Julie at first ignored Bermas. Julie later relented and went to the kitchen where Bermas grabbed her
and threatened to kill her if she shouted. Bermas tied the hands of Julie with a piece of cloth and placed a piece of cloth
around her face to prevent her from shouting.
Bermas, still armed with his bolo tucked on his waist and a knife on his hand, brought accused-appellant and Julie
outside the house. The three then trekked towards the mountain. On the way, Bermas picked a bag containing food
provisions and his and accused-appellants clothings. Accused-appellant thought of escaping but could not because Bermas
was watching him. With the help of a flashlight brought by Bermas, the three walked towards the mountain, with Julie
walking ahead of accused-appellant and Bermas. After walking for hours, they stopped by a tree to which Bermas tied
Julie. At one time, while Bermas and accused-appellant were scouring for water, Bermas kicked accused-appellant and
pushed him into a ten feet deep ravine. The right hand and foot of accused-appellant sustained bruises. He likewise
sustained a sprain on his foot. Bermas left accused-appellant and Julie after 1 days.
In the meantime, accused-appellant managed to climb out of the ravine and heard Julie calling his name. Julie later
told accused-appellant that before Bermas left, the latter told her that he was going to kill accused-appellant.
Accused-appellant and Julie remained in the mountain after Bermas had left. At one time, accused-appellant and
Julie saw soldiers who were looking for her. Accused-appellant did not reveal his and Julies location to the soldiers because
he was afraid that he might be killed. On February 25, 1996, accused-appellant untied Julie. He told her that he will set
her free as soon as his foot shall have healed.
On February 27, 1996, accused-appellant told Julie that she can go home already. He ordered her to go down the
mountain and proceed to Balsaham on her way back home. Although his foot was still aching, accused-appellant went
down from the mountain ahead of Julie and proceeded to Balsaham. He then walked to Irawan where he took a tricycle
to the public market in the poblacion in Puerto Princesa City. He then took a passenger jeepney and alighted at Brookes
Point where he was arrested after one week for the killing of Jorge and the kidnapping of Julie.
Accused-appellant maintained that he did not intend to hurt Julie or deprive her of her liberty. He averred that during
the entire period that he and Julie were in the mountain before Bermas left him, he tried to protect her from
Bermas. Accused-appellant asserted that he wanted to bring Julie back to her parents after Bermas had left them and to
surrender but accused-appellant was afraid that Julio Sr. might kill him.

IV. The Verdict of the Trial Court

After due proceedings, the trial court rendered its decision, the decretal portion of which reads:

WHEREFORE, foregoing premises considered, a Joint Judgment is hereby rendered in:

A. CRIMINAL CASE NO. 12900 finding the accused Gonzalo Baldogo, alias Baguio, guilty beyond reasonable doubt as
principal of the crime of murder as defined and penalized in Article 248 of the Revised Penal Code, as amended by
Section 6 of Republic Act No. 7659, and appreciating against him the specific aggravating circumstance of taking
advantage and use of superior strength, without any mitigating circumstance to offset the same, and pursuant to the
provisions of the second paragraph, No. 1, of Article 63 of the Revised Penal Code, he is hereby sentenced to death in
the manner prescribed by law; to pay the heirs of the deceased Jorge Camacho;

1. Actual and compensatory damages:

For expenses incurred for funeral and
other expenses incident to his death ---P45,000.00
2. Moral damages ----------------------------- 100,000.00
 3. Civil indemnity for the death of the
victim, Jorge Camacho ------------------- 50,000.00
or the aggregate amount of ------------- 195,000.00

B. CRIMINAL CASE NO. 12903 finding the accused GONZALO BALDOGO, alias, Baguio, guilty beyond reasonable doubt as
principal of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised
Penal Code, as amended by Section 8 of Republic Act No. 7659, and there being no modifying circumstance appreciated
and pursuant to the provisions of the second paragraph, No. 2, of Article 63 of the Revised Penal Code, and not being
entitled to the benefits of the Indeterminate Sentence Law, he is hereby sentenced to reclusion perpetua, with the
accessory penalties of civil interdiction for life, and of perpetual absolute disqualification; to pay the offended party,
Julie Camacho for physical suffering, mental anguish, fright, serious anxiety and moral shock, moral damages of
P100,000; and to pay the costs.

The case as against co-accused Edgar Bermas is ordered dismissed by reason of extinction of criminal liability occasioned
by his death pending conclusion of the proceedings as against him.

SO ORDERED.[12]

V. Assignment of Error

In his appeal brief, accused-appellant avers that:

I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF MURDER AND KIDNAPPING.
II
THE TRIAL COURT ERRED IN REJECTING ACCUSED-APPELLANTS DEFENSE OF DENIAL.
III
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING AGGRAVATING CIRCUMSTANCE OF EVIDENT
PREMEDITATION AND GENERIC AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF SUPERIOR
STRENGTH DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE SAME.
IV
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY UPON THE ACCUSED-APPELLANT IN THE (SIC)
CRIMINAL CASE #12900.[13]

VI. Resolution of this Court

The first two assignments of errors being interrelated, the Court will delve into and resolve the same simultaneously.
Accused-appellant avers that he had nothing to do with, and hence should not be claimed for, the death of Jorge and
the kidnapping and detention of Julie. Accused-appellant claims that he was acting under duress because he was
threatened by Bermas with death unless he did what Bermas ordered him to do. Accused-appellant was even protective
of Julie. He insists that the latter was not a credible witness and her testimony is not entitled to probative weight because
she was merely coached into implicating him for the death of Jorge and her kidnapping and detention by Bermas.
 We find the contention of accused-appellant farcical. At the heart of the submission of accused-appellant is the
credibility of Julie, the 12-year old principal witness of the prosecution and the probative weight of her testimony.
This Court has held in a catena of cases that the findings of facts of the trial court, its calibration of the testimonial
evidence of the parties, its assessment of the probative weight of the collective evidence of the parties and its conclusions
anchored on its findings are accorded by the appellate court great respect, if not conclusive effect. The raison detre of this
principle is that this Court has to contend itself with the mute pages of the original records in resolving the issues posed
by the parties:

x x x The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry
flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or
the forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in
confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were
shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all
these and on the basis of his observations arrive at an informed and reasoned verdict.[14]

In contrast, the trial court has the unique advantage of monitoring and observing at close range the attitude, conduct
and deportment of witnesses as they narrate their respective testimonies before said court. Echoing a foreign courts
observation, this Court declared:

Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft
hides in nooks and crannies visible only to the minds eye of the judge who tries the case.To him appears the furtive
glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness,
the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and
mien. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson, or the itching overeagerness
of the swift witness, as well as the honest face of the truthful one, are alone seen by him.[15]

The rule, however, is not iron clad. This Court has enumerated exceptions thereto, namely: (a) when patent
inconsistencies in the statements of witnesses are ignored by the trial court;(b) when the conclusions arrived at are clearly
unsupported by the evidence; (c) when the trial court ignored, misunderstood, misinterpreted and/or misconstrued facts
and circumstances of substance which, if considered, will alter the outcome of the case.[16] In this case, the trial court
found the youthful Julie credible and her testimony entitled to full probative weight. Accused-appellant has not sufficiently
demonstrated to this Court the application of any of the aforestated exceptions.
The Court agrees with accused-appellant that the prosecution was burdened to prove his guilt beyond reasonable
doubt of the felonies for which he is charged. This Court has held that accusation is not synonymous with guilt. It is
incumbent on the prosecution to prove the corpus delicti, more specifically, that the crimes charged had been committed
and that accused-appellant precisely committed the same. The prosecution must rely on the strength of its own evidence
and not on the weakness of the evidence of the accused.[17] The reasonable standard rule which was adopted by the United
States way back in 1978 is a requirement and a safeguard, in the words of Mr. Justice Felix Frankfurter of the United States
Supreme Court, of due process of law in the historic, procedural content of due process. The United States Supreme Court
emphasized in Re: Winship[18] that in a criminal prosecution, the accused has at stake interests of immense importance,
both because of the possibility that he may lose his liberty or even his life upon conviction and because of the certainty
that he would be stigmatized by the conviction.
In the cases at bar, the prosecution failed to adduce direct evidence to prove that accused-appellant killed
Jorge. However, the prosecution adduced indubitable proof that accused-appellant conspired with Bermas not only in
killing Jorge but also in kidnapping and detaining Julie.
Article 8 of the Revised Penal Code provides that there is conspiracy if two or more persons agree to commit a felony
and decide to commit it. Conspiracy may be proved by direct evidence or circumstantial evidence. Conspiracy may be
inferred from the acts of the accused, before, during and after the commission of a felony pointing to a joint purpose and
design and community of intent.[19] It is not required that there be an agreement for an appreciable period prior to the
commission of a felony; rather, it is sufficient that at the time of the commission of the offense, all the conspira`tors had
the same purpose and were united in its execution.[20] In a conspiracy, the act of one is the act of all.[21] All the accused are
criminally liable as co-principals regardless of the degree of their participation.[22] For a conspirator to be criminally liable
of murder or homicide, it is not necessary that he actually attacks or kills the victim. As long as all the conspirators
performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design in
bringing about the death of the victim, all the conspirators are criminally liable for the death of said victim.[23]
In these cases, the prosecution adduced conclusive proof that accused-appellant indeed conspired with Bermas to
kill Jorge and kidnap Julie as shown by the following cogent facts and circumstances:
1. When Julie responded to the repeated calls of Bermas for her to go to the kitchen on his pretext that Jorge wanted
to talk to her, Julie saw accused-appellant and Bermas, each armed with a bolo, about half a meter from Jorge who was
sprawled on the ground, bloodied all over.[24]
2. Even as Julie fled from the kitchen for dear life to the sala of their house, accused-appellant and Bermas ran after
her. Accused-appellant tied the hands of Julie with a piece of cloth and inserted a piece of cloth into her mouth to prevent
her from shouting for help from their neighbors.[25]
3. With a flashlight on hand, accused-appellant then exited from the house, dragged Julie towards the direction of
the mountain while Bermas remained in the house to rummage through the things in the bedroom of her
brothers. Accused-appellant stopped for a while for Bermas to join him.[26]
4. Before the killing of Jorge, accused-appellant and Bermas placed their clothing and personal belongings in a bag
and buried the bag under a tree, and when accused-appellant and Bermas were on their way to the mountain after killing
Jorge, they excavated and retrieved the bag from under the tree.[27]
5. Accused-appellant and Bermas brought with them to the mountain a kettle filled with raw rice which they cooked
in the forest.[28]
6. When Julie saw uniformed men who were looking for her and wanted to shout for help, accused-appellant covered
her mouth to prevent her from shouting for help.[29]
7. Even after Bermas had left accused-appellant and Julie in the forest in the afternoon of February 23, 1991, accused-
appellant continued detaining Julie in the forest until February 27, 1996, when he abandoned Julie in the forest to fend
for herself.
The evidence of the prosecution was even buttressed by the judicial admissions of accused-appellant, thus:
1. After releasing Julie on February 27, 1996, accused-appellant proceeded to Puerto Princesa City and on to Brookes
Point where he was arrested a week after said date.[30]
2. Both accused-appellant and Bermas had a motive to kill Jorge and kidnap Julie, that is, to avenge the repeated
maltreatment and physical abuse on them by Julio Sr., the father of Jorge and Julie.[31]
The flight of both accused-appellant and Bermas from the house of Julio Sr. to the mountain where they found refuge
after killing Jorge, and their motive to kill Jorge Jr. and kidnap and detain Julie in conjunto constitute potent evidence of
their confabulation and of their guilt for the death of Jorge and kidnapping and detention of Julie.[32]
The bare denial by accused-appellant of criminal liability for the crimes charged is inherently weak. Accused-
appellants claims that he even protected Julie from harm and that he was forced by Bermas to kidnap Julie are of the
same genre.[33] The bare denial by accused-appellant of the crimes charged constitutes self-serving negative evidence
which cannot prevail over the categorical and positive testimony of Julie and her unequivocal identification of accused-
appellant as one of the perpetrators of the crimes charged.[34]
Accused-appellants insistence that he was forced by Bermas, under pain of death, to cooperate with him in killing
Jorge and kidnapping and detaining Julie is merely an afterthought.For duress to exempt accused-appellant of the crimes
charged, the fear must be well-founded, and immediate and actual damages of death or great bodily harm must be present
and the compulsion must be of such a character as to leave no opportunity to accused for escape or interpose self-defense
in equal combat.[35] Accused-appellant is burdened to prove by clear and convincing evidence his defense of duress. He
should not be shielded from prosecution for crime by merely setting up a fear from, or because of, a threat of a third
person.[36] As Lord Dennan declared in Reg. Vs. Tyler,[37] No man from fear of circumstances to himself has the right to
make himself a party to committing mischief on mankind. In these cases, in light of the testimony of Julie and the
inculpatory acts of accused-appellant no less, there is no doubt that the latter acted in concert with Bermas and is himself
a principal by direct participation. That accused-appellant abandoned Julie after six days of captivity does not lessen his
criminal culpability much less exempt him from criminal liability for the killing of Jorge and the kidnapping and detention
of Julie.
Accused-appellant failed to prove his claim that Julie was coached on how and what to testify on. Indeed, when asked
to identify the person or persons who coached Julie, accused-appellant failed to mention any person:
Q You heard the testimony of Julie Camacho that she is pointing to you to have kidnapped her and participated
in the killing of her brother Jorge, what can you say to that?
A That is not true.
Q You donot (sic) know the reason why? In fact you treated her well, why she pointed you as one of the authors
of the crime?
A Maybe somebody coached her.
Q Who do you think coached her?
A I cannot mention the name but I am sure that somebody coached her.[38]
It bears stressing that when she testified, Julie was merely 12 years old. The Court has repeatedly held that the
testimony of a minor of tender age and of sound mind is likewise to be more correct and truthful than that of an older
person so that once it is established that they have fully understood the character and nature of an oath, their testimony
should be given full credence and probative weight.[39] Julie had no ill motive to tergiversate the truth and falsely testify
against accused-appellant. Hence, her testimony must be accorded full probative weight.[40]

VII. Crimes Committed by Accused-Appellant

The Court shall now delve into and resolve the issue of what crime or crimes accused-appellant is guilty of. The trial
court convicted accused-appellant of two separate crimes and not the special complex crime of kidnapping with murder
or homicide under the last paragraph of Article 267 of the Revised Penal Code as amended by Republic Act 7659.[41] The
trial court is correct. There is no evidence that Jorge was kidnapped or detained first by accused-appellant and Bermas
before he was killed. The last paragraph of Article 267 of the Code is applicable only if kidnapping or serious illegal
detention is committed and the victim is killed or dies as a consequence of the kidnapping or serious illegal detention.

Re: Criminal Case No. 12900

(For Murder)

The trial court convicted accused-appellant of murder with the qualifying aggravating circumstance of evident
premeditation, based on the following findings and ratiocination:

The slaying of Jorge Camacho took place about 8:30 oclock in the evening of February 22, 1996. It was carried out after
the accused have been through tidying-up the kitchen, the dining room and the kitchen wares the family of the
Camachos used in their early dinner before 7:00 oclock that evening. But even before dinner, the accused have already
made preparations for their flight, shown by the fact that they already had their clothes, other personal belongings and
food provisions stacked in their respective travelling bags then placed in a spot where they can just pick them up as they
take to flight.[42]

The trial court also appreciated against accused-appellant the qualifying aggravating circumstance of abuse of
superior strength with the following disquisition:
The victim, Jorge Camacho, is a lad only 14 years of age and unarmed when brutally slain. On the contrary, both accused
are of age and confirmed convicted felons. Any one of them would already be superior in strength and disposition to
their hapless and innocent victim. How much more with the combined strength and force of the two of them.

Their choice of the object of their brutality is indicative of their unmistakable intent of taking advantage of their superior
strength. The likely object of their resentment, for purported cruelty to them, is Prison Guard Julio Camacho, father of
the victim. They could have directed their criminal intent on Julio Camacho himself. But Julio Camacho could be a match
in strength and agility to any of them or even to the combined force of both of them. So, to insure execution of their
criminal intent without risk to them for the defense which the offended party might put up, they directed their criminal
acts against the deceased who is very much inferior in physical combat even only to any one of them.[43]

While the Court agrees that accused-appellant is guilty of murder, it does not agree with the rulings of the trial court
that the crime was qualified by evident premeditation and abuse of superior strength. To warrant a finding of evident
premeditation, the prosecution must establish the confluence of the following requisites:

x x x (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that the offender
clung to his determination; and (c) a sufficient interval of time between the determination and the execution of the
crime to allow him to reflect upon the consequences of his act. x x x[44]

The qualifying aggravating circumstance of evident premeditation, like any other qualifying circumstance, must be
proved with certainty as the crime itself. A finding of evident premeditation cannot be based solely on mere lapse of time
from the time the malefactor has decided to commit a felony up to the time that he actually commits it.[45] The prosecution
must adduce clear and convincing evidence as to when and how the felony was planned and prepared before it was
effected.[46] The prosecution is burdened to prove overt acts that after deciding to commit the felony, the felon clung to
his determination to commit the crime. The law does not prescribe a time frame that must elapse from the time the felon
has decided to commit a felony up to the time that he commits it. Each case must be resolved on the basis of the extant
factual milieu.
In this case, the prosecution failed to prove evident premeditation. The barefaced fact that accused-appellant and
Bermas hid the bag containing their clothing under a tree located about a kilometer or so from the house of Julio Sr. does
not constitute clear evidence that they decided to kill Jorge and kidnap Julie. It is possible that they hid their clothing
therein preparatory to escaping from the colony. There is no evidence establishing when accused-appellant and Bermas
hid the bag under the tree. The prosecution even failed to adduce any evidence of overt acts on the part of accused-
appellant, nor did it present evidence as to when and how he and Bermas planned and prepared to kill Jorge and kidnap
Julie and to prove that the two felons since then clung to their determination to commit the said crimes. Although accused-
appellant and Bermas were armed with bolos, there is no evidence that they took advantage of their numerical superiority
and weapons to kill Jorge. Hence, abuse of superior strength cannot be deemed to have attended the killing of
Jorge.[47] Nighttime cannot likewise be appreciated as an aggravating circumstance because there is no evidence that
accused-appellant and Bermas purposely sought nighttime to facilitate the killing or to insure its execution or
accomplishment or to evade their arrest.[48] Neither is dwelling aggravating because there is no evidence that Jorge was
killed in their house or taken from their house and killed outside the said house.
In light of the evidence on record, it is clear that the killing of Jorge was qualified by treachery. When Jorge was killed
by accused-appellant and Bermas, he was barely 14 years old.The Court has previously held that the killing of minor
children who by reason of their tender years could not be expected to put up a defense is attended by treachery.[49] Since
treachery attended the killing, abuse of superior strength is absorbed by said circumstance.[50]
The penalty for murder under Article 248 of the Revised Penal Code as amended by Republic Act 7659 is reclusion
perpetua to death. There being no aggravating or mitigating circumstances in the commission of the crime, accused-
appellant should be meted the penalty of reclusion perpetua.[51] Conformably with current jurisprudence, accused-
appellant is hereby ordered to pay to the heirs of the victim civil indemnity in the amount of P50,000.00 and the amount
of P50,000.00 by way of moral damages. Although Julio Sr. testified that he spent P45,000.00 during the wake and burial
of the victim, the prosecution failed to adduce any receipts to prove the same. Hence, the award of P45,000.00 by way of
actual damages has no factual basis and should thus be deleted.
 Re: Criminal Case No. 12903
(For Kidnapping)

The trial court convicted accused-appellant of kidnapping under Article 267 of the Revised Penal Code, as amended,
punishable by reclusion perpetua to death. The trial court is correct.
Article 267 of the Revised Penal Code was taken from Article 267 of the Spanish Penal Code, which reads:

Art. 267Detencin ilegal grave.Ser castigado con la pena de reclusin temporal el particular que secuestrare o encerrare a
otro o en cualquier forma le privare de libertad.

Secuestrare means sequestration.[52] To sequester is to separate for a special purpose, remove or set apart, withdraw
from circulation.[53] It also means to lock-up or imprison. Encerrareis a broader concept
[54]
than secuestrare. Encerrare includes not only the imprisonment of a person but also the deprivation of his liberty in
whatever form and for whatever length of time.As explained by Groizard, encerrar es meter una persona cosa en parte de
donde no pueda salir; detener o arrestar, poner en prisin, privar de la libertad alguno. He continued that la detencin, la
prisin, la privacin de la libertad de una persona, en cualquier forma y por cualquier medio por cualquier tiempo en virtud
de la cual resulte interrumpido el libre ejercicio de su actividad.[55] On his commentary on the Spanish Penal Code, Cuello
Calon says that the law preve dos modalidades de privacion de libertad, el encierro y la detencion. Encerrar significa recluir
a una persona en un lugar de donde no puede salir, detener a una persona equivale a impedirle o restringirle la libertad de
movimiento. Para que el sujeto pasivo no quiera permanecer en el sitio donde esta recluido, pues no es posible llamar
encierro ni detencion a la estancia de un a persona en lugar del que no quiere salir.[56]
In this case, Julie, a minor, was not locked up. However, she was seized and taken from her house through force and
dragged to the mountain. Since then, she was restrained of her liberty by and kept under the control of accused-appellant
and Bermas. She was prevented from going back home for a period of about six days. Patently then, accused-appellant is
guilty of kidnapping and illegally detaining Julie. The crime was aggravated by dwelling because Julie was taken from their
house by accused-appellant and Bermas. However, dwelling was not alleged in the Information as an aggravating
circumstance as required by Section 9, Rule 110 of the Revised Rules on Criminal Procedure which reads:

SEC. 9. Designation of the offense. The complaint or information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.[57]

Even if dwelling is proven but is not alleged in the Information as an aggravating circumstance, the same will not
serve to aggravate the penalty.[58]
Quasi-recidivism as defined in Article 160 of the Revised Penal Code[59] is alleged in both Informations. Accused-
appellant is alleged to have committed murder and kidnapping while serving sentence in the penal colony by final
judgment for the crime of homicide. Quasi-recidivism is a special aggravating circumstance.[60] The prosecution is
burdened to prove the said circumstance by the same quantum of evidence as the crime itself. In the present case, to
prove quasi-recidivism, the prosecution was burdened to adduce in evidence a certified copy of the judgment convicting
accused-appellant of homicide and to prove that the said judgment had become final and executory.[61] The raison detre is
that:

x x x Since the accused-appellant entered a plea of not guilty to such information, there was a joinder of issues not only
as to his guilt or innocence, but also as to the presence or absence of the modifying circumstances so alleged. The
prosecution was thus burdened to establish the guilt of the accused beyond reasonable doubt and the existence of the
modifying circumstances. It was then grave error for the trial court to appreciate against the accused-appellant the
aggravating circumstance of recidivism simply because of his failure to object to the prosecutions omission as
mentioned earlier.[62]
 In this case, the prosecution adduced in evidence merely the excerpt of the prison record of accused-appellant
showing that he was convicted of homicide in Criminal Case No. 10357-R by the Regional Trial Court of Baguio (Branch 6)
with a penalty of from six years and one day as minimum to fourteen years, eight months and one day as maximum and
that the sentence of accused-appellant commenced on November 19, 1992 and that the minimum term of the penalty
was to expire on August 16, 1997.[63] The excerpt of the prison record of accused-appellant is not the best evidence under
Section 3, Rule 130 of the Revised Rules of Court[64] to prove the judgment of the Regional Trial Court of Baguio City and
to prove that said judgment had become final and executory. Said excerpt is merely secondary or substitutionary evidence
which is inadmissible absent proof that the original of the judgment had been lost or destroyed or that the same cannot
be produced without the fault of the prosecution. The barefaced fact that accused-appellant was detained in the penal
colony does prove the fact that final judgment for homicide has been rendered against him.[65] There being no modifying
circumstances in the commission of the crime, accused-appellant should be meted the penalty of reclusion
perpetua conformably with Article 63 of the Revised penal Code.[66]

VIII. Civil Liability of Accused-Appellant for Kidnapping and Serious Illegal Detention

The trial court awarded the amount of P100,000.00 to Julie by way of moral damages for the felony of kidnapping
with serious illegal detention, predicated on her having suffered serious anxiety and fright when she was kidnapped and
dragged to the mountain where she was detained for several days. The trial court is correct. Julie is entitled to moral
damages.[67] In light of the factual milieu in this case, the amount is reasonable. Julie is also entitled to exemplary damages
in the amount of P25,000.00.[68]
IN LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial Court is hereby AFFIRMED WITH MODIFICATION:
1. In Criminal Case No. 12900, accused-appellant is found guilty beyond reasonable doubt of murder defined in Article
248 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua, there being no
modifying circumstances attendant to the commission of the felony. Accused-appellant is hereby ordered to pay to the
heirs of the victim the amount of P50,000.00 as civil indemnity and the amount of P50,000.00 as of moral damages. The
award of P45,000.00 as of actual damages is deleted.
2. In Criminal Case No. 12903, accused-appellant is found guilty beyond reasonable doubt of kidnapping with serious
illegal detention defined in Article 267 of the Revised Penal Code, as amended by Republic Act 7659, and there being no
modifying circumstances attendant to the commission of the felony is hereby meted the penalty of reclusion
perpetua. Accused-appellant is hereby ordered to pay moral damages to the victim, Julie Camacho, in the amount
of P100,000.00 and exemplary damages in the amount of P25,000.00.
SO ORDERED.

THIRD DIVISION

9. G.R. No. 197925, November 09, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDWIN DALAWIS Y HIDALGO, Accused-Appellant.

DECISION

PERALTA, J.:
For this Court's consideration is the Decision1 dated January 28, 2011 of the Court of Appeals (CA) in CA-G.R. CR-HC No.
02438 affirming, with modification, the Decision2 dated May 23, 2006 of the Regional Trial Court (RTQ, Branch 84,
Batangas City, in Criminal Case No. 13739, finding appellant guilty beyond reasonable doubt of violating Article II of
Republic Act (RA) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

In an Information filed with the RTC, Branch 84, of Batangas City, appellant Edwin Dalawis y Hidalgo was charged with
Violation of Article II of RA No. 9165, the accusatory portion of which reads:chanRoblesvirtualLawlibrary

That on or about November 1, 2004, at around 5:10 o'clock in the afternoon at Brgy. Sta. Clara, Batangas City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law,
did then and there wilfully, unlawfully and feloniously sell, dispense, or deliver 0.14 gram of methamphetamine
hydrochloride (shabu), a dangerous drug, which is a clear violation of the above-cited law.

That the accused has been previously convicted by final judgment under the following, to wit:

Case No. Offense Court Date of Conviction

5061 Viol, of Sec. 8 Art. II, RA 6425 RTC-8 March 3, 1992

10477 Viol, of Sec. 15 Art. II, RA 6425 RTC-8 June 19, 2000

CONTRARY TO LAW.3ChanRoblesVirtualawlibrary
cralawlawlibrary

Upon arraignment, appellant pleaded not guilty to the crime charged. Consequently, trial on the merits ensued.4

The factual antecedents, as narrated by the witnesses of the prosecution, are as follows:chanRoblesvirtualLawlibrary

At around 4 o'clock in the afternoon of November 1, 2004, an asset of PO2 Christian Boy Garcia Aranza arrived at the
police station with information that shabu could be purchased from a certain Edwin Dalawis of Barangay (Brgy.) Sta.
Clara, Batangas City. Acting on said information, Aranza, together with SPO4 Delfm Alea, PO3 Nestor Dimaano, PO3 Jayn
Gonda, PO2 Villas, PO2 De Chavez and PO2 Lindbergh Yap, formed a team to conduct a buy-bust operation. Upon the
orders of Alea, Aranza marked a P500 bill with his initials "CGA" to be used as the marked money for the operation. They
then proceeded to Brgy. Sta. Clara, Batangas City, with Aranza, Alea, Dimaano, De Chavez, Yap and the asset, aboard a
tinted van, while Villas and Gonda were on motorcycles. Their departure was recorded in the police blotter.5

At Brgy. Sta. Clara, Aranza frisked the asset to ensure that he did not have anything illegal in his possession, gave him the
marked money, and told him to walk towards the place where he would meet the appellant, a Shell Gasoline Station.
The policemen followed the asset thereto, and watched from the opposite portion of the station in the tinted van. Aside
from appellant who was already thereat, they also saw the notorious drug pusher named Robert Lagmay operating
under the alias "Tagpi" coming out from Villa Anita. Thereafter, at a distance of more or less seven (7) meters, the
policemen saw the asset hand the marked money to appellant who, in turn, handed a small transparent plastic sachet
they suspected to contain shabu. Their asset, then, signalled to the policemen the consummation of the transaction by
scratching his head. Upon seeing the signal, they immediately alighted from the van to apprehend the appellant. PO2
Aranza confiscated the marked money from appellant's right hand, while his asset turned over to him the plastic sachet.
At the same time, PO2 De Chavez was also able to confiscate a sachet filled with what they suspected was shabu from
the notorious drug pusher, Lagmay.6

The policemen then informed appellant and Lagmay of their constitutional rights and brought them to the barangay hall
of Sta. Clara where their arrest was recorded in the barangay blotter. From there, they proceeded to the police station
where appellant and Lagmay, together with the marked money and confiscated plastic sachet, were presented to the
desk officer, SPO1 Martin Calingasan. SPO1 Calingasan recorded the buy-bust operation in the police blotter, prepared
the complaint sheet, and turned over the suspects and seized items to the duty investigator, PO2 Santiago Matibag, Jr.
In the latter's presence, PO2 Aranza marked the plastic sachet with his initials and the date of confiscation, executed his
sworn statement, and signed the arrest report. PO2 Matibag then prepared the request for laboratory examination of
the seized items and brought the same to the crime laboratory, where PO1 Malaluan, the duty receiving clerk, received
said items and turned them over to Senior Inspector Jupri C. Delantar, who conducted the laboratory examination. The
findings on the seized items tested positive for methamphetamine hydrochloride, otherwise known as shabu.7

Against the foregoing charges, appellant testified on his own version of facts, thus:chanRoblesvirtualLawlibrary

In the afternoon of November 1, 2004, appellant stated that he was at his house in Villa Anita when he heard a
commotion nearby. He peeped through the door and saw that the commotion was coming from outside the house of Fe
Abag. He then approached the persons thereat and uttered the words "putang ina niyo, ano gang gulo yan?" All of a
sudden, a man turned his back and poked a gun at him. He panicked and retreated to his house, realizing that the
persons at the commotion were policemen. He was then called upon by one of them to go out of his house. He went out
and apologized. However, a policeman cursed at him saying, "putang ina ka, gusto mo pa yatang harangin ang paghuli
namin dito kay Fe."8

The policemen then forcibly took appellant into custody, together with the other arrested persons, one of whom was
the notorious drug pusher, Robert Lagmay, and brought them first, to the barangay hall, and then next, to the police
headquarters. Inside the intelligence section, appellant was asked if he had any previous involvement in illegal drugs, to
which he replied in the positive.9 Appellant then overheard the conversation of the police with Lagmay, wherein they
said that since Lagmay is the son of Sgt. Lagmay and the brother of a certain Liklik, they would file a lesser charge so as
to enable him to post bail, while they would instead file the case against appellant. Thereafter, the policemen brought
out two (2) plastic sachets containing a white substance, which appellant claimed he has never seen before. They asked
appellant and Lagmay to point to the plastic sachet while they took a photograph thereof. Afterwards, appellant and
Lagmay were put in jail. On cross-examination, appellant admitted that he had been twice convicted of offenses
involving illegal drugs.10

Appellant's testimony was corroborated by his neighbors, Julius Javier and Lorna Catipan, who were watching from
inside their respective houses, particularly as to how appellant was forcibly brought out of his house by the policemen.11

In its Decision dated May 23, 2006, the trial court gave credence to the testimonies of the police officers as they were
given in a direct and positive manner, replete with details as to the manner in which the offense was committed. It took
note of the fact that the police were in a clear position to witness the transaction, being merely seven (7) meters away,
and also found that the custody and chain of delivery up to the Police Crime Laboratory were duly established. On the
contrary, the RTC was not impressed with appellant's defense that he was forcibly abducted from his residence in view
of the fact that the witnesses did not report such a serious offense to the proper authorities. It, therefore, disposed of
the case as follows:chanRoblesvirtualLawlibrary

WHEREFORE, finding the accused GUILTY BEYOND REASONABLE DOUBT of the offense charged he is hereby sentenced
to suffer life imprisonment to be served by him at the National Penitentiary Muntinlupa City with recommendation of no
parole for habitual delinquency and to pay a fine of five hundred thousand pesos (P500,000.00).

The shabu subject matter of this case consisting of one (1) plastic sachet shall be delivered by Branch Sheriff Rolando D.
Quinio to the PDEA, Quezon City within fifteen (15) days from today.

SO ORDERED.12ChanRoblesVirtualawlibrary
cralawlawlibrary

Appellant appealed his conviction arguing that: (1) the existence of the marked money prior to the alleged buy bust was
not duly proven in court as the police officer who recorded the pre-operation events made no mention of any marking
on the buy-bust money; (2) the prosecution failed to prove the legitimacy of the operation considering the absence of
any document that would prove that there was indeed a report by the confidential informant of the police officers; (3)
the trial court erroneously failed to appreciate his defense that based on the conversation he heard between the police
and Lagmay, he was merely being set up considering that a certain Fe Abag, who was originally the target of the arrest,
was actually detained for a drug-related crime and that Lagmay was allowed to post bail; (4) there are infirmities in the
pre and post operation reports; (5) there is no evidence which shows that the buy-bust operation was exercised in
coordination with the PDEA or the barangay authorities; (6) the police officers failed to physically inventory the seized
items in the presence of the accused; (7) there was no proper identification of the specimen actually examined; (8) the
chain of custody of the seized items was not established; (9) he could not be adjudged as a habitual delinquent because
he was charged not of any of the crimes enumerated by law for which one could be considered as such, but of violation
of the drugs law.13

On January 28, 2011, the appellate court sustained the appellant's conviction with a correction as to the trial court's
recommendation of no parole for its finding of habitual delinquency. It found too trivial appellant's imputation as to the
failure of the policemen to record in the pre-operation report the markings on the P500 bill, citing the ruling in People v.
Conception, et al.14 that the recording of the buy-bust money in the police blotter is immaterial to the prosecution of
illegal drugs. Neither is it required that the confidential informant put his tip down in writing. The CA ruled that what is
material in the prosecution of illegal sale of regulated or prohibited drugs is proof that the transaction or sale actually
took place, coupled with the presentation in the court of the corpus delicti of the crime.15

Great weight was likewise accorded to the trial court's factual finding that the testimonies given by the police officers
were unequivocal, detailed, and straightforward, prevailing over appellant's mere allegation of frame-up and forcible
abduction. The appellate court cites the oft-repeated rule that unless there appears on record some fact or
circumstance of weight and influence which the trial court has overlooked, misapprehended, or misinterpreted, it shall
not interfere with the assessment of the credibility of the witnesses.16 As to the conduct of a buy-bust operation,
moreover, People v. Ahmad17ruled that police officers are assumed to have the expertise to determine which specific
approaches are necessary to enforce their entrapment operation.

Furthermore, contrary to appellant's asseverations, the CA was content as to how the identity of the seized drugs and
the chain of custody of the same were established. There was direct testimonial evidence of the identity of the drugs as
shown by the markings on its container and of the fact that the seizing officers turned over the items to the duty
investigator who then delivered them personally to the laboratory. Thus, the appellate court, citing People v.
Naquita,18 ruled that the failure, by itself, of the police officers to strictly observe all the requirements laid down in the
drugs law, particularly Section 21 of RA No. 9165, will not invalidate the arrest of the accused and seizure of illegal drugs
in the course thereof, for as long as there is showing that the integrity and evidentiary value of the same has been
preserved.

As to the trial court's finding of the appellant's habitual delinquency which therefore bars him from any future parole,
however, the appellate court found the same to be without any legal basis. This is due to the fact that the crime for
which appellant has prior convictions is not that of serious or less serious physical injuries, robo, hurto, estafa or
falsification as provided by Article 62 of the Revised Penal Code (RPC).

Aggrieved, appellant now seeks his acquittal before the Court, adopting the arguments he invoked in his appellant's
brief filed before the appellate court.19

The appeal is unmeritorious.

As previously alleged in his Appellant's Brief, appellant calls for his acquittal, insisting on several irregularities in the buy-
bust operation conducted by the police officers who apprehended him. Particularly, appellant notes the absence of
evidence which shows that the buy-bust operation was exercised in coordination with the Philippine Drug Enforcement
Agency (PDEA) or the barangay authorities, and the failure of the police officers to properly identify and to physically
conduct an inventory of the seized items in his presence, as mandated by Section 21, Paragraph 1, Article II of RA No.
9165 which provides:chanRoblesvirtualLawlibrary
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:chanRoblesvirtualLawlibrary

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof[.]cralawlawlibrary

It bears stressing however, that failure to strictly comply with the foregoing procedure will not render an arrest illegal or
the seized items inadmissible in evidence20 in view of the qualification permitted by Section 21 (a) of the Implementing
Rules and Regulations (IRR) of RA No. 9165, to wit:chanRoblesvirtualLawlibrary

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items
are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and
custody over said items[.]21cralawlawlibrary

Thus, it has been held that for as long as the integrity and evidentiary value of the seized items are properly preserved
pursuant to the chain of custody rule, non-compliance with Section 21 of RA No. 9165 does not automatically render
illegal the arrest of an accused or inadmissible the items seized.22 The rule on chain of custody expressly demands the
identification of the persons who handle the confiscated items for the purpose of duly monitoring the authorized
movements of the illegal drugs and/or drug paraphernalia from the time they are seized from the accused until the time
they are presented in court. Moreover, as a method of authenticating evidence, the chain of custody rule requires that
the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what
the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was
picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe
how and from whom it was received, where it was and what happened to it while in the witness' possession, the
condition in which it was received and the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the
item and no opportunity for someone not in the chain to have possession of the same.23

In the instant case, appellant simply stated that "the chain of custody of the alleged shabu is highly questionable"
without presenting any evidence which would substantiate his allegation. Yet, on the contrary, the records of the case
reveal that the police officers were able to maintain the integrity of the seized plastic sachet and that the links in its
chain of custody were sufficiently established. The police officers, who were merely at a distance of seven (7) meters
away, convincingly testified that they personally saw their asset hand the marked money to appellant who, in turn,
handed the plastic sachet containing the white crystalline substance. Immediately thereafter, they alighted from the van
and moved towards appellant. PO2 Aranza himself confiscated the marked money from appellant's right hand, who was
duly informed of his constitutional rights before he was brought to the barangay hall, and then to the police station.
There, the confiscated sachet was presented to PO1 Calingasan who recorded the operation in the police blotter and
then turned over the seized item to PO2 Matibag, the duty investigator. In the latter's presence, PO2 Aranza marked the
plastic sachet with his initials. Thereafter, PO2 Matibag brought the same to the crime laboratory where PO1 Malaluan,
the duty receiving clerk, received said items and turned them over to Senior Inspector Jupri C. Dilantar, who conducted
the laboratory examination. Based on said examination, Senior Inspector Dilantar found that the plastic sachet seized
from appellant contains methamphetamine hydrochloride, which finding he reduced into writing in Chemistry Report
No. BD-143-04. Thus, contrary to appellant's bare allegation, there is no showing that the integrity and evidentiary value
of the seized item had been compromised in any way.

Apart from the foregoing allegations, appellant proceeded to impute additional lapses in the buy-bust operation.
According to him, the existence of the marked money prior to the alleged buy bust was not duly proven in court as the
police officer who recorded the pre-operation events made no mention of any marking on the buy-bust money.
Moreover, appellant asserts that the prosecution failed to prove the legitimacy of the operation considering the absence
of any document that would prove that there was indeed a report by the confidential informant of the police officers.
Yet, nowhere in his appellant's brief did he provide any basis, jurisprudential or otherwise, to support his conclusions
that these alleged lapses are fatal to his prosecution. In fact, as aptly ruled by the CA, the recording of marked money
used in a buy-bust operation is not one of the elements for the prosecution of sale of illegal drugs. Neither is it required
that the confidential informant put his tip down in writing. For as long as the sale of the prohibited drug is adequately
proven, the recording or non-recording thereof in an official record will not necessarily lead to an acquittal.24

It must be emphasized, at this point, that for a successful prosecution of offenses involving the illegal sale of dangerous
or prohibited drugs under Section 5, Article II of R.A. No. 9165, all of the following elements must be satisfied: (1) the
identity of the buyer and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold
and payment therefor. Succinctly stated, the delivery of the illicit drug to the poseur-buyer and the receipt of the
marked money by the seller successfully consummate the buy-bust transaction. What is material, therefore, is the proof
that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti, as
evidence.25cralawred

In the instant case, the Court finds that the foregoing requisites were sufficiently met. As aptly found by the courts
below, evidence for the prosecution adequately established beyond reasonable doubt the identity of the seller and
buyer as well as the exchange of the plastic sachet of shabu and the marked money. There was direct proof that the sale
of shabu actually transpired, the chain of custody having been duly preserved, establishing the corpus delicti in court.
This Court, therefore, finds no compelling reason to diverge from the trial court's findings, especially since such were
affirmed by the appellate court.

It is a well-entrenched rule that the findings of facts of the trial court, as affirmed by the appellate court, are conclusive
on this Court, absent any evidence that both courts ignored, misconstrued, or misinterpreted cogent facts and
circumstances of substance which, if considered, would warrant a modification or reversal of the outcome of the
case.26 Since prosecutions involving illegal drugs largely depend on the credibility of the police officers who conducted
the buy-bust operation, reliance may be made on the findings of fact of the trial court, which is in a better position to
decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying
during the trial.27 Thus, in view of the clear and straightforward evidence of the prosecution vis-a-vis appellant's
unsubstantiated defenses, this Court shall accord a high degree of respect to the factual findings of the courts below.

As to the trial court's finding of habitual delinquency, the Court is in agreement with appellant, the CA, as well as the
prosecution that the trial court erred in withholding the benefit of parole from appellant on the ground of habitual
delinquency in spite of the express mandate of Article 62 of the RPC, viz.:chanRoblesvirtualLawlibrary

Art. 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency. — Mitigating or
aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or
increasing the penalty in conformity with the following rules:chanRoblesvirtualLawlibrary

xxxx

5. Habitual delinquency shall have the following effects:chanRoblesvirtualLawlibrary

(a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be
found guilty and to the additional penalty of prision correccional in its medium and maximum periods;

(b) Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be
found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and

(c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which
he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period.

Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in
conformity herewith, shall in no case exceed 30 years.

For the purpose of this article, a person shall be deemed to be habitual delinquent, is within a period of ten years
from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto,
estafa or falsification, he is found guilty of any of said crimes a third time or oftener.28cralawlawlibrary

It is clear, therefore, that habitual delinquency is considered only with respect to the crimes specified in the aforequoted
Article. In the instant case, appellant was charged with violation of the Dangerous Drugs Law, the same crime adjudged
in his two (2) prior convictions, and not of crimes of serious or less serious physical injuries, robo, hurto, estafa or
falsification, as required by the RPC. Hence, the law on habitual delinquency is simply inapplicable to appellant.29

WHEREFORE, premises considered, the instant appeal is DENIED. The Decision dated January 28, 2011 of the Court of
Appeals in CA-G.R. CR-HC No. 02438 is hereby AFFIRMED.

SO ORDERED.

10. FIRST DIVISION

ZACARIA A. CANDAO, G.R. Nos. 186659-710

ABAS A. CANDAO AND
ISRAEL B. HARON, Present:
Petitioners,
CORONA, C.J.,
Chairperson,
 - versus - BERSAMIN,
DEL CASTILLO,
VILLARAMA, JR., and
SERENO,* JJ.

PEOPLE OF THE PHILIPPINES Promulgated:

AND SANDIGANBAYAN,
Respondents. October 19, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

Assailed in this petition for review on certiorari under Rule 45 is the Decision[1] dated October 29, 2008 and
Resolution[2] dated February 20, 2009 of the Sandiganbayan (First Division) finding the petitioners guilty beyond
reasonable doubt of malversation of public funds under Article 217 of the Revised Penal Code, as amended.

The Facts

On August 5, 1993, Chairman Pascasio S. Banaria of the Commission on Audit (COA) constituted a team of auditors from
the central office to conduct an Expanded Special Audit of the Office of the Regional Governor, Autonomous Region for
Muslim Mindanao (ORG-ARMM). State Auditors Heidi L. Mendoza (Team Leader) and Jaime Roxas (Member) were
directed to conduct the said audit under the supervision of Jaime P. Naranjo (State Auditor V). From August 24 to
September 1, 1993, the expanded audit was thus conducted on the financial transactions and operations of ORG-ARMM
for the period July 1992 to March 1993.

As stated in Special Audit Office (SAO) Report No. 93-25 submitted by the audit team, it was found that illegal
withdrawals were made from the depository accounts of the agency through the issuance of checks payable to the order
of petitioner Israel B. Haron (Disbursing Officer II) without the required disbursement vouchers. The following are the
details of the government accounts and the fifty-two (52) checks[3] issued and encashed without proper supporting
documents:

PNB Account No. 370-3208

DATE CHECKNO. SIGNATORIES AMOUNT
ISSUED

December 29, 1992 414431 Israel Haron & Abas Candao 500,000.00
December 29, 1992 414432 Israel Haron & Abas Candao 439,585.00
December 29, 1992 414433 Israel Haron & Abas Candao 210,000.00
January 26, 1993 414487 Israel Haron & Abas Candao 500,000.00
January 26, 1993 414488 Israel Haron & Abas Candao 500,000.00
January 26, 1993 414489 Israel Haron & Abas Candao 500,000.00
February 2, 1993 414493 Israel Haron & Abas Candao 500,000.00
 February 2, 1993 414494 Israel Haron & Abas Candao 500,000.00
February 3, 1993 414499 Israel Haron & Abas Candao 450,000.00
February 5, 1993 414500 Israel Haron & Abas Candao 500,000.00
February 5, 1993 461801 Israel Haron & Abas Candao 500,000.00
February 18, 1993 461803 Israel Haron & Zacaria Candao 500,000.00
February 18, 1993 461804 Israel Haron & Zacaria Candao 104,985.64
February 22, 1993 461876 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461877 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461878 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461879 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461880 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461881 Israel Haron & Zacaria Candao 500,000.00
February 24, 1993 461888 Israel Haron & Abas Candao 64,000.00
March 18, 1993 461932 Israel Haron & Abas Candao 500,000.00
March 18, 1993 461933 Israel Haron & Abas Candao 500,000.00
March 19, 1993 461934 Israel Haron & Abas Candao 350,000.00
March 22, 1993 461935 Israel Haron & Abas Candao 500,000.00
March 22, 1993 461936 Israel Haron & Abas Candao 500,000.00
TOTAL P11,118,570.64

Account No. 844061 (Treasurer of the Philippines)

DATE CHECK SIGNATORIES AMOUNT
ISSUED NO.
January 11, 1993 968739 Israel Haron & Abas Candao 400,000.00

January 11, 1993

January 11, 1993 968740 Israel Haron & Abas Candao 400,000.00
January 11, 1993 968741 Israel Haron & Abas Candao 400,000.00
January 13, 1993 968751 Pandical Santiago & Abas Candao 120,000.00
January 18, 1993 968804 Israel Haron & Abas Candao 380,000.00
March 2, 1993 974192 Israel Haron & Zacaria Candao 250,000.00
March 4, 1993 974208 Israel Haron & Abas Candao 500,000.00
March 4, 1993 974209 Israel Haron & Abas Candao 500,000.00
March 4, 1993 974210 Israel Haron & Abas Candao 500,000.00
March 4, 1993 974211 Israel Haron & Abas Candao 500,000.00
 March 4, 1993 974212 Israel Haron & Abas Candao 30,000.00
March 5, 1993 974227 Israel Haron & Abas Candao 500,000.00
March 5, 1993 974228 Israel Haron & Abas Candao 500,000.00
March 12, 1993 974244 Israel Haron & Abas Candao 100,000.00
March 18, 1993 974324 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974325 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974326 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974327 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974328 Israel Haron & Abas Candao 500,000.00
March 19, 1993 974339 Israel Haron & Abas Candao 200,000.00
March 19, 1993 974340 Israel Haron & Abas Candao 25,000.00
March 19, 1993 974341 Israel Haron & Abas Candao 172,000.00
March 29, 1993 979533 Israel Haron & Abas Candao 500,000.00
March 29, 1993 979543 Israel Haron & Abas Candao 500,000.00
March 29, 1993 979544 Israel Haron & Abas Candao 500,000.00
March 29, 1993 979545 Israel Haron & Abas Candao 300,000.00
March 30, 1993 979590 Israel Haron & Abas Candao 150,000.00
TOTAL P9,927,000.00

GRAND TOTAL = P21,045,570.64

In a letter dated September 10, 1993, Chairman Banaria demanded from petitioner Haron to produce and restitute to the
ARMM-Regional Treasurer immediately the full amount of P21,045,570.64 and submit his explanation within seventy-two
(72) hours together with the official receipt issued by the ARMM Regional Treasurer in acknowledgment of such
restitution.

On April 17, 1998, the Office of the Special Prosecutor, Office of the Ombudsman-Mindanao, filed in the Sandiganbayan
criminal cases for malversation of public funds against the following ORG-ARMM officials/employees: Zacaria A. Candao
(Regional Governor), Israel B. Haron (Disbursing Officer II), Abas A. Candao (Executive Secretary) and Pandical M. Santiago
(Cashier). They were charged with violation of Article 217 of the Revised Penal Code, as amended, under the following
informations with identical allegations except for the varying date, number and amount of the check involved in each
case:

Criminal Case Nos. 24569-24574, 24576-24584, 24593, 24595-

24620[4]
(42 counts involving checks in the total amount
of P17,190,585.00)

That on or about 29 December 1992, in Cotabato City, Philippines, and within the jurisdiction of
this Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of
the Office of the Regional Governor, and as such is responsible and accountable for the funds of the said
office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with [Abas]
Candao, Executive Secretary of the same office, who is a high ranking officer, while in the performance of
their respective official functions, taking advantage of their official positions, and committing the offense
in relation to their respective functions, with gross abuse of confidence, did then and there wilfully,
unlawfully and feloniously withdraw the amount of P500,000.00 from the depository account of the Office
of the Regional Governor thru the issuance of Check No. 414431 dated 29 December 1992, payable to the
order of accused Israel B. Haron, without the required disbursement voucher and once in possession of
the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and
convert to their own personal use and benefit the amount of P500,000.00, to the damage and prejudice
of the government in the aforesaid sum as abovestated.

CONTRARY TO LAW.

Criminal Case Nos. 24585- 24592 and 24594[5]

(9 counts involving checks in the total amount
of P3,854,985.64)

That on or about 18 February 1993, in Cotabato City, Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the
Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office
in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with Zacaria Candao,
Regional Governor of the same office, who is a high ranking officer, while in the performance of their
respective official functions, taking advantage of their official positions, and committing the offense in
relation to their respective functions, with gross abuse of confidence, did then and there wilfully,
unlawfully and feloniously withdraw the amount of P500,000.00 from the depository account of the Office
of the Regional Governor thru the issuance of Check No. 461803 dated 18 February 1993, payable to the
order of accused Israel B. Haron, without the required disbursement voucher and once in possession of
the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and
convert to their own personal use and benefit the amount of P500,000.00, to the damage and prejudice
of the government in the aforesaid sum as abovestated.

CONTRARY TO LAW.

Criminal Case No. 24575[6]

That on or about 13 January 1993, in Cotabato City, Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the
Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office
in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with Pandical Santiago
and [Abas] Candao, Cashier and Executive Secretary, respectively, of the same office, while in the
performance of their respective official functions, taking advantage of their official positions, and
committing the offense in relation to their respective functions, with gross abuse of confidence, did then
and there wilfully, unlawfully and feloniously withdraw the amount of P120,000.00 from the depository
account of the Office of the Regional Governor thru the issuance of Check No. 968751 dated 13 January
1993, payable to the order of accused Israel B. Haron, without the required disbursement voucher and
once in possession of the said amount withdrawn, wilfully, unlawfully and feloniously take,
misappropriate, embezzle and convert to their own personal use and benefit the amount of P120,000.00,
to the damage and prejudice of the government in the aforesaid sum as abovestated.

CONTRARY TO LAW.
At their arraignment, all accused pleaded not guilty to the charge of malversation. In the meantime, accused Santiago died
and consequently the case against him in Criminal Case No. 24575 was dismissed.

The prosecutions lone witness was Heidi L. Mendoza,[7] COA State Auditor IV. She testified that their expanded audit,
conducted from August 24 to September 1, 1993, disclosed the illegal withdrawals of funds from the PNB and Treasury
accounts of ORG-ARMM involving 52 checks issued without the required disbursement vouchers.Specifically, their
attention was caught by the fact that the Report of Checks Issued by the Deputized Disbursing Officer (RCIDDO) showed
that the subject 52 checks have no assigned voucher numbers. The audit team demanded for the original of said RCIDDO
for the months of December 1992, February and March 1993, which were supposed to be prepared and submitted by the
disbursing officer, but the ORG-ARMM did not submit the same. In a letter dated August 24, 1993, the COA likewise made
a demand from the Regional Governor through the resident auditor for the production of the original disbursement
vouchers and complete supporting documents of the subject checks.[8]

In response, the Finance and Budget Management Services of ORG-ARMM informed the audit team that the vouchers
were already submitted to COA Resident Auditor, Supervising State Auditor IV Rosalinda Gagwis, purportedly under
transmittal letters dated March 4 and March 30, 1993. Mendoza then personally verified from Gagwis who denied having
received the subject vouchers and issued a certification to that effect. In a letter dated September 10, 1993, Chairman
Banaria finally demanded for the restitution of the funds illegally withdrawn through the issued 52 checks and to comply
with such demand within 72 hours from receipt of said letter. As to the absence of her signature in the audit report, she
explained that she was already on maternity leave when the interim report (SAO Report No. 93-25) was
submitted. However, she, together with audit team member Jaime B. Roxas executed a Joint Affidavit dated May 17, 1996
regarding their conduct of the expanded audit and their findings and recommendation. Although Haron submitted copies
of disbursement vouchers to the COA receiving clerk, this was made beyond the 72-hour deadline given to them.[9]

On cross-examination, witness Mendoza was asked if the audit team had informed the office or parties concerned that
they are going to be audited (entry conference). She replied that this was a sensitive assignment, recalling that they were
threatened after their identities were established during the earlier audit of the same office such that she had to be
brought back to Manila. At that time, the Regional Governor was accused Candao. Hence, during the expanded audit, the
team was unable to proceed as in ordinary situations.While they did an entry conference during the previous main audit,
they were unable to do so at the time of the expanded audit. Again for security reasons, the team also did not conduct an
exit conference after field work; they would be risking their lives if they discuss there and then their findings. Due to threat
to her life, it was her team supervisor (Naranjo) and member (Roxas) who personally retrieved the documents in Cotabato
City. She admitted the belated submission of original vouchers (October 29, 1993) to the COA central office but these are
without supporting documents.[10]

For the accused, the first witness was Nick Luz Aduana who was the Director of Finance of ORG-ARMM from July 1991
until his resignation in March 1993. He testified that his functions then include the supervision and overseeing of the three
divisions: Budget, Accounting and Management. When report of the audit team came out, he was surprised because they
were not informed of the audit. He was familiar with the 52 checks because the disbursement vouchers passed through
his office. He explained the procedure with respect to the processing of cash advances as follows: generally, there were
cash advances made in ARMM which cover travels, salaries, etc. but particularly for peace and order campaign, it
emanates from the ORG when the Regional Governor issues an authority for cash advance, and then they process the
voucher (Finance and Budget Management Services); once their division have performed their accounting functions
relative to the vouchers, the same are forwarded to the Regional Governor for approval or in his absence to his Executive
Secretary; after the approval of the voucher, it will be forwarded to the Cash Division for the issuance of check; the person
who will liquidate the cash advance is usually the employee mentioned in the voucher; and after they have prepared all
the liquidation papers, these are submitted to the Budget and Management Division before forwarding them to the COA
Auditor. He maintained that the original disbursement vouchers have already been submitted to the COA Special Audit
Office. Since 1991, they have never received any notice of disallowance of their disbursements, including those intended
for peace and order campaign. Being the first ARMM set of officials, they had sought the advice of their Auditor as to
proper accounting procedures; they followed the advice of Auditor Gagwis who said that there should be authority to cash
advance coming from the Regional Governor which should be given to the Disbursing Officer. He identified the vouchers
presented by the defense as the ones processed by their division with the corresponding amounts reflected
therein. Insofar as the expanded audit is concerned, they were not given the opportunity to defend the case as they were
not given the so-called exit conference.[11]

On cross-examination, witness Aduana hinted on political reasons why an expanded audit was conducted when Regional
Governor Pagdanganan assumed office despite the fact that an earlier audit was already made during the administration
of Governor Candao. He claimed that he did not receive any copy of the demand letter dated August 24, 1993; he was no
longer connected with ARMM at the time. He also maintained that the disbursement vouchers were processed by their
office and entered into their books of account. However, when asked what happened to these books of account, Aduana
said these are with the Office of the Regional Governor. He admitted that the only supporting document for the checks
and vouchers were the authority to cash advance; the peace and order campaign disbursement is peculiar to ARMM and
hence they did not know what supporting documents to attach. When queried about the particular activities covered by
this peace and order campaign disbursement, Aduana admitted that he really does not know the breakdown of expenses
or for what items in particular were the disbursed amounts spent. Their division merely processed the disbursement
vouchers that were prepared by the ORG, and while his signature appears in said vouchers his role was limited to certifying
the availability of funds.[12]

The next witness, Rosalinda G. Gagwis, former COA Resident Auditor of ORG-ARMM, testified that in 1991 she was the
Chief of the Operation and Review Division (ORD), COA Region XII which at the time has jurisdiction over ORG-ARMM; she
was Auditor-in-Charge of ORG-ARMM only up to March 8, 1993 when the separation of COA Region XII personnel and
COA-ARMM was implemented. Among her duties as such Auditor-in-Charge was to conduct a post-audit of the financial
transactions of ORG-ARMM. In the course of the expanded audit of ORG-ARMM, she was requested to issue the
Certification dated August 27, 1993 stating that she has not received the January to March 1993 vouchers as stated in the
letter of Haron. Subsequently, on July 22, 1998 she executed a two-page Affidavit because she has been hearing that her
previous Certification was misinterpreted to mean that the subject vouchers were not existing. She then clarified that
actually, ORG-ARMM tried to submit bundles of vouchers to her office but she refused to accept them because she was
no longer Auditor-in-Charge of that office as there was already an order separating COA-Regional Office XII from the COA-
ARMM. She confirmed that when ARMM was a newly created agency, its officers (Aduana, Brigida Fontanilla and
Bartolome Corpus) sought her advice regarding accounting procedures. Prior to submission to her office for post-audit,
the accountable officers like the Cashier and Disbursement Officer prepares and submits a Monthly Report of
Disbursements to the Accounting Division which, within ten days from receipt and recording in the Books of Accounts,
shall submit the same to the auditor for post-audit custody. Based on her experience, however, this deadline was not
strictly observed as 25% to 50% of the national agencies are delayed in the submission of such reports. The usual reasons
given were the geographical locations of the offices in Region XII and ARMM, lack of manpower due to budgetary
constraints and lack of know-how of personnel regarding accounting and auditing procedures, especially if there is a
change in administration. As far as she can recall, their office had not issued a notice of disallowance to ORG-ARMM
although notices of suspension have been issued for minor deficiencies noted during post-audit; these notices of
suspension were usually complied with by the agency.[13]

On cross-examination, witness Gagwis said that upon seeing the bundles of vouchers being submitted to her office, she
immediately refused to accept, and sort of washed her hands by telling her staff that they were no longer incharge of
ORG-ARMM. She did not actually scan those documents and examine their contents. She also did not receive the Monthly
Report of Disbursements from said office. As to the execution of the July 22, 1998 Affidavit, she insisted that she did it
voluntarily five years later in order to clarify herself after hearing about the case filed in the Sandiganbayan and her name
was being dragged because of the Certification she made in August 1993. As to the earlier Certification, she maintained
that she did not receive the subject vouchers and she does not know where these documents are at present.[14]

Another witness, Brigida C. Fontanilla, Chief Accountant, ORG-ARMM, testified that her duties and responsibilities include
the processing, updating and recording of transactions of ORG-ARMM in the books of accounts while vouchers are
recorded in the Journal of Analysis and Obligations (JAO). They also prepared financial reports. As to cash advances, she
explained that the procedure starts with the preparation of the voucher at ORG which also issues the authority to
withdraw cash advance which is attached to the disbursement voucher and supporting documents, afterwhich it is
forwarded to the Finance and Budget Management Services for processing: there, it is first submitted to the Budget
Division for the request for allotment of obligation, and next forwarded to the Accounting Division for the journal entry of
obligation and recording in the books of account, and then the documents are forwarded to the Office of the Finance
Director for his approval, and thereafter returned back to the ORG for final approval for the issuance of the
check. Presently, their office is more systematic and organized than it was during the administration of Governor
Candao. Sometime in 1994 during the investigation by the Office of the Ombudsman relative to the subject illegal
withdrawals, she was summoned to produce the Cash Receipts Book and Cash Disbursement Book of the 1991 ARMM
seed money for regional, provincial and district Impact Infrastructure Projects. However, she was not able to comply with
the said directive because such books are not among those required by the COA for their office; what the COA directed
them to maintain was the JAO, a book of original entry for allotments received and disbursements for the transactions of
ORG-ARMM. She wrote a letter-reply to the Ombudsman Investigator and transmitted the original 1992 JAO which was
never returned to their office.[15]

Explaining the contents of the JAO, witness Fontanilla said that the entries in the voucher are recorded therein: an
obligation number is placed in the request of allotment (ROA) which also appears in the voucher. Before such recording
in the JAO, the disbursement vouchers are presented to their office. Actually, she does not know whether the 1992 JAO
still exists or with the Ombudsman Investigator because at the time, they were holding office temporarily at the office of
ORG Auditor which unfortunately got burned sometime in 1996.[16]

As for witness Bartolome M. Corpus, his deposition upon oral examination was taken on August 27, 2004 before Atty.
Edipolo Sarabia, Clerk of Court, Regional Trial Court of Davao City. He testified that in 1991 he was appointed Chief of the
Management Division of the Finance and Budget Management Services (FBMS), ORG-ARMM. He was placed on floating
status for three years by the new Chief of Staff of ORG-ARMM (Nasser Pangandaman) upon the election of a new Regional
Governor, Lininding Pangandaman who defeated Governor Candao. As Finance Director, it was his responsibility to review
all transactions of the ORG-ARMM and see to it that COA regulations are in place and supporting documents are
complete. After reviewing documents, which include disbursement vouchers, his office submits the same to the COA
Regional Officer or to the COA Resident Auditor. Being the internal control unit of ORG-ARMM, all transactions and
supporting documents must pass through his office. As to the transactions covered by the subject 52 checks, he confirmed
that these passed through his office, including the disbursement vouchers, afterwhich these were forwarded to the
Accounting Office and then to the Cash Division for issuance of checks. He claimed that his subordinates tried to submit
the disbursement vouchers to the Resident Auditor, as shown by the transmittal letters dated March 4 and March 30,
1993. However, Ms. Gagwis refused to accept the vouchers because she was no longer the Resident Auditor at the time.
During the time of Governor Candao, he does not recall having received any notice of disallowance from the COA although
there were times they received a notice of suspension which had been settled. During the time he was on floating status,
he discovered that some vouchers including those original vouchers covered by the subject 52 checks were still in his filing
cabinet. He then handed them over to Haron. In 1996, he was reinstated by Governor Nur Misuari.[17]

On cross-examination, witness Corpus said that they tried to submit the vouchers to Gagwis sometime in late March or
early April 1993. He was not aware of the August 27, 1993 Certification issued by Gagwis. When asked about the stated
purpose peace and order campaign in the cash advance vouchers, he confirmed that this was the practice at that time and
it was only during liquidation that ORG will have the list of expenses; the supporting documents will come only after the
issuance of the check.[18] On re-direct examination, he maintained that there were previous similar vouchers for peace
and order campaign which have not been disallowed but only suspended by the COA.[19]

Sandiganbayan Ruling

By Decision dated October 29, 2008, the Sandiganbayan found petitioner Haron guilty beyond reasonable doubt of
malversation of public funds under Article 217 of the Revised Penal Code, as amended, committed in conspiracy with
petitioners Zacaria A. Candao and Abas A. Candao who were likewise sentenced to imprisonment and ordered to pay a
fine equivalent to the amount of the check in each case, as follows:

Criminal Case Nos. 24569-24584,

24593, 24595-24620
 Israel B. Haron and Abas A. Candao - convicted of 43 counts of Malversation of Public Funds and each
was sentenced to indeterminate prison term in each case of ten (10) years and one (1) day of prision
mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal,
as maximum, and ordered to pay a fine in each case equivalent to the particular check involved,
without subsidiary imprisonment in case of insolvency and the penalty of perpetual special
disqualification to hold public office and other accessory penalties provided by law. In the service
of their respective sentences, they shall be entitled to the benefit of the three-fold rule as provided
in Art. 70 of the Revised Penal Code, as amended.
Criminal Case Nos. 24585-24592 & 24594

Israel B. Haron and Zacaria A. Candao convicted of 9 counts of Malversation of Public Funds and each was
sentenced to indeterminate prison term in each case of ten (10) years and one (1) day of prision
mayor as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal,
as maximum, and ordered to pay a fine in each case equivalent to the particular check involved,
without subsidiary imprisonment in case of insolvency and the penalty of perpetual special
disqualification to hold public office and other accessory penalties provided by law. In the service
of their respective sentences, they shall be entitled to the benefit of the three-fold rule as provided
in Art. 70 of the Revised Penal Code, as amended.[20]

The Sandiganbayan found no merit in petitioners claim that the subject checks were covered by existing disbursement
vouchers which were belatedly submitted and received by the COA Central Office on October 29, 1993. It said that had
those vouchers really existed at the time of the 52 withdrawals petitioners made from December 29, 1992 to March 30,
1993, petitioner Haron could have readily produced them when required to do so by the special audit team on August 24,
1993. Said court likewise did not give credence to the testimony of Corpus in view of the August 27, 1993 Certification
issued by then COA Auditor Gagwis that she has not received the vouchers mentioned in the transmittal letters. Gagwis
explanation, on the other hand, contradicted the testimony of Corpus that when he returned to his office sometime in
May 1993, he found the original vouchers together with the transmittal letters still there in his filing cabinet and have not
been submitted to the COA Resident Auditor.

The Sandiganbayan noted that petitioners presented no proof that the cash advances intended for peace and order
campaign were spent for public purposes, as in fact the alleged disbursement vouchers did not indicate any detail as to
the nature of the expense/s such as purchase of equipment, services, meals, travel, etc. and there were no supporting
documents such as the Request for Issuance of Voucher, Purchase Request and Inspection Report of the items supposedly
purchased. More importantly, the vouchers were not accomplished in accordance with existing COA circulars because
they are unnumbered and undated. Hence, the belatedly submitted vouchers are of doubtful veracity or origin, nay, a
fabricated evidence or, as pointed out by the prosecution, self-serving or an afterthought, belatedly prepared to give the
illegal disbursements amounting to the aggregate amount of more than P21M, a semblance of regularity.[21] As to the JAO
and Certification dated August 18, 1998 issued by Chief Accountant Fontanilla, the Sandiganbayan found there is nothing
therein to indicate the particular disbursement voucher that corresponds to each of the subject 52 checks which were
neither reflected in the JAO.

With respect to petitioners assertion that the audit conducted by the COA special audit team was incomplete and tainted
as it did not follow procedures because the person audited were not notified thereof, the Sandiganbayan found these
allegations unsubstantiated as in fact at the start of the audit on August 24, 1993, the audit team thru their team leader
State Auditor Naranjo, informed the management of ORG-ARMM thru the COA Resident Auditor of the expanded special
audit to be conducted as they even requested for the original copies of the disbursement vouchers together with their
complete supporting documents covering the 52 checks. But despite said letter, the ORG-ARMM failed to heed the audit
teams request. For the failure of petitioner Haron to account for the funds involved in the illegal withdrawals when asked
to do so, the presumption arose that he misappropriated the same, which presumption was not overcome by defense
evidence.

On the respective liabilities of petitioners Zacaria A. Candao and Abas A. Candao, the Sandiganbayan held that by their act
of co-signing the subject checks, petitioner Haron was able to consummate the illegal withdrawals without the required
disbursement vouchers of the amounts covered by the 43 checks (for Abas) and 9 checks (for Zacaria). Thus, by their
collective acts, said court concluded that petitioners conspired to effect the illegal withdrawals of public funds which,
when required by the COA to be properly accounted for, petitioners failed to do so.

In its Resolution dated February 20, 2009, the Sandiganbayan denied the prosecutions motion to cancel bail bonds
and petitioners motion for reconsideration.

The Petition

Petitioners raised the following grounds for their acquittal:

1. THE SANDIGANBAYAN...COMMITTED A REVERSIBLE ERROR IN CONVICTING THE ACCUSED PETITIONERS

FOR THE CRIME OF MALVERSATION OF PUBLIC FUNDS DESPITE PROOF POSITIVE THAT, CONTRARY TO
WHAT THE INFORMATIONS CHARGED, THERE WERE DISBURSEMENT VOUCHERS EXCEPT THAT THE
COA REFUSED TO ACCEPT MUCH LESS EXAMINE THE SAME. PETITIONERS WERE THUS DENIED DUE
PROCESS OF LAW WHEN THEY WERE CONVICTED FOR OFFENSES NOT COVERED BY THE
INFORMATIONS AGAINST THEM.

2. .THE SANDIGANBAYAN COMMITTED A REVERSIBLE ERROR IN NOT APPLYING THE EQUIPOISE RULE
WHICH IF APPLIED WOULD HAVE RESULTED IN THE ACQUITTAL OF THE ACCUSED-PETITIONERS.

3. THE SANDIGANBAYAN COMMITTED A REVERSIBLE ERROR IN CONVICTING ACCUSED PETITIONERS

ZACARIA A. CANDAO AND ABAS A. CANDAO DESPITE THE FACT THAT THE CHARGE OF CONSPIRACY
WHICH IS THEIR ONLY LINK TO THE OFFENSES HEREIN HAS NOT BEEN PROVEN BEYOND REASONABLE
DOUBT.[22]

Our Ruling

The petition has no merit.

Article 217 of the Revised Penal Code, as amended, provides:

Art. 217. Malversation of public funds or property Presumption of malversation. - Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
 negligence, shall permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved
is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.

The failure of a public officer to have duly forthcoming any public fund or property with which
he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal uses. (Emphasis supplied.)

The following elements are essential for conviction in malversation cases:

1. That the offender is a public officer;

2. That he had custody or control of funds or property by reason of the duties of his office;

3. That those funds or property were public funds or property for which he was accountable; and

4. That he appropriated, took, misappropriated or consented or, through abandonment or negligence,

permitted another person to take them.[23]

All the foregoing elements were satisfactorily established by the prosecution in this case. Petitioners have not
rebutted the legal presumption that with the Disbursing Officers (Haron) failure to account for the illegally withdrawn
amounts covered by the subject checks when demanded by the COA, they misappropriated and used the said funds for
their personal benefit.

Petitioners however assert that their convictions were based solely on the Sandiganbayans conclusion that the
vouchers submitted by the defense were illegal or irregular, whereas the informations simply alleged their absence or
non-existence. They contend that said court could not have validly assessed the disbursement vouchers as to their legality
because that duty pertains to the COA which refused and failed to examine the same. Had the court allowed the COA to
evaluate and make a ruling on the validity of the vouchers, the result would have been different and most probably they
would have been acquitted of the crime charged.
 We are not persuaded by petitioners asseveration.

The Sandiganbayan categorically ruled that the disbursement vouchers were inexistent at the time of the issuance
of the subject checks and expanded special audit based on its findings that: (1) petitioner Haron could not produce the
vouchers upon demand by the COA in August 1993; (2) Resident Auditor Gagwis certified at about the same time that to
date she has not received the vouchers mentioned in the supposed transmittal letters of March 4 and March 30, 1993; (3)
the entries in the duly certified Report of Checks Issued by Deputized Disbursing Officer (RCIDDO) of the late Pandical M.
Santiago, Cashier of ORG-ARMM, showed that for the months of January, February and March 1993, there were indeed
entries of checks issued with Haron as payee but no disbursement voucher numbers as these were either lacking, detached
or missing, and which were verified by the audit team as corresponding to the subject 52 checks issued and signed by
petitioners and encashed by petitioner Haron who received the money withdrawn from the government depositary
accounts; (4) FBMS Chief Corpus testified that he discovered the supposed vouchers still there at his office filing cabinet
in May 1993 when these supposedly have already been submitted to the COA Resident Auditor as reflected in the March
4 and March 30, 1993 transmittal letters; and (5) the supposed original disbursement vouchers belatedly submitted to the
COA central office last week of October 1993, were undated and unnumbered with no supporting documents as required
by COA Circular No. 78-79 (April 5, 1978).

Contrary to petitioners claim, the special audit team could not have examined the vouchers presented by the
defense (Exhibits 1 to 1-A-43) because the only indication of its actual receipt by the COA as admitted by the prosecution,
was on October 23, 1993 long after the expanded audit was completed and beyond the 72-hour deadline specified in the
September 10, 1993 demand letter addressed to Haron for the restitution of the total amount of illegal withdrawals. In
addition, such disbursement vouchers have no supporting documents as required by COA Circular No. 92-389 dated
November 3, 1992. On the other hand, the Certification dated August 18, 1998 issued by ARMM Chief Accountant
Fontanilla stating that the vouchers were regular because these were properly recorded in the JAO, was not given
credence by the Sandiganbayan. Upon scrutiny of the JAO covering the period January to March 1993, said court found
that it failed to indicate the particular disbursement voucher that corresponds to each of the 52 checks, aside from the
fact that it was prepared by the ARMM Chief Accountant who is under the control and supervision of the ORG. Notably,
the JAO is used to summarize obligations incurred and to monitor the balance of unobligated allotments, which is prepared
by function, and project for each fund and allotment class.[24] The JAO is thus separate and distinct from the Report of
Checks Issued (RCI) which is prepared by the Disbursing Officer to report checks issued for payment of expenditures and/or
prior accounts payable.What is clear is that the disbursement of funds covered by the 52 checks issued by the petitioners
are subject to the rule that disbursement voucher shall be used by all government entities for all money claims and that
the voucher number shall be indicated on the voucher and on every supporting document.[25] Inasmuch as the JAO for the
months of January, February and March 1993 do not at all reflect or indicate the number of each of the disbursement
vouchers supposedly attached to the 52 checks, it cannot serve as evidence of the recording of the original vouchers,
much less the existence of those disbursement vouchers at the time of the issuance of the 52 checks and the conduct of
the expanded audit.

Petitioners further raise issue on the regularity, completeness and objectivity of the expanded audit conducted
by the COA. However, records showed that the ORG-ARMM were duly notified of the expanded audit at its
commencement and was even requested thru the COA Resident Auditor to submit the needed disbursement vouchers. It
must be noted that at an earlier date, a main audit had already been conducted for the financial transactions of ORG-
ARMM during which State Auditor Mendoza experienced threats against her own security that she had to be immediately
recalled from her assignment. Thus, by the time the expanded audit was conducted in August 1993 upon the directive of
the COA Chairman, petitioners, especially Haron, should have seen to it that the records of disbursements and financial
transactions including the period January to March 1993, were in order and available for further audit examination. In any
case, even if there was no so-called entry conference held, there is absolutely no showing that petitioners were denied
due process in the conduct of the expanded audit as they simply refused or failed to heed COAs request for the production
of disbursement vouchers and likewise ignored the formal demand made by COA Chairman Banaria for the restitution of
the illegally withdrawn public funds, submitting their compliance only after the special audit team had submitted their
report.

In fine, the Sandiganbayan committed no reversible error in holding that the testimonial and documentary
evidence presented by the petitioners failed to overcome the prima facie evidence of misappropriation arising from
Harons failure to give a satisfactory explanation for the illegal withdrawals from the ARMM funds under his custody and
control. Petitioners likewise did not accomplish the proper liquidation of the entire amount withdrawn, during the
expanded audit or any time thereafter. There is therefore no merit in petitioners argument that the Sandiganbayan erred
in not applying the equipoise rule.

Under the equipoise rule, where the evidence on an issue of fact is in equipoise or there is doubt on which side
the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if the
inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the
innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfill the test of moral
certainty, and does not suffice to produce a conviction.[26] Such is not the situation in this case because the prosecution
was able to prove by adequate evidence that Disbursing Officer Haron failed to account for funds under his custody and
control upon demand, specifically for the P21,045,570.64 illegally withdrawn from the said funds. In the crime of
malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds,
that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain
his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary in malversation
cases.[27]

As to the liability of petitioners Zacaria A. Candao and Abas A. Candao, the Sandiganbayan correctly ruled that
they acted in conspiracy with petitioner Haron to effect the illegal withdrawals and misappropriation of ORG-ARMM funds.

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. In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with
the criminal design of another, indicated by the performance of an overt act leading to the crime committed. It may be
deduced from the mode and manner in which the offense was perpetrated.[28]
 In this case, petitioners Zacaria A. Candao and Abas A. Candao were co-signatories in the subject checks issued
without the required disbursement vouchers. Their signatures in the checks, as authorized officials for the purpose, made
possible the illegal withdrawals and embezzlement of public funds in the staggering aggregate amount of P21,045,570.64.

Petitioners Zacaria A. Candao and Abas A. Candao assail their conviction as co-conspirators in the crime of
malversation contending that their only participation was in the ministerial act of signing the checks. The checks having
passed through processing by finance and accounting personnel of ORG-ARMM, petitioners said they had to rely on the
presumption of regularity in the performance of their subordinates acts. Furthermore, they assert that since conspiracy
requires knowledge of the purpose for which the crime was committed, they could not have been conspirators in the
design to defraud the government.

We disagree with such postulation.

As the Regional Governor of ARMM, petitioner Zacaria A. Candao cannot exonerate himself from liability for the
illegally withdrawn funds of ORG-ARMM. Under Section 102 (1) of the Government Auditing Code of the Philippines, he is
responsible for all government funds pertaining to the agency he heads:

Section 102. Primary and secondary responsibility. (1) The head of any agency of the government
is immediately and primarily responsible for all government funds and property pertaining to his
agency.

x x x x (Emphasis supplied.)

Petitioners Zacaria A. Candao and his Executive Secretary Abas A. Candao are both accountable public officers within the
meaning of Article 217 of the Revised Penal Code, as amended. No checks can be prepared and no payment can be
effected without their signatures on a disbursement voucher and the corresponding check. In other words, any
disbursement and release of public funds require their approval,[29] as in fact checks issued and signed by petitioner Haron
had to be countersigned by them. Their indispensable participation in the issuance of the subject checks to effect illegal
withdrawals of ARMM funds was therefore duly established by the prosecution and the Sandiganbayan did not err in
ruling that they acted in conspiracy with petitioner Haron in embezzling and misappropriating such funds.

Moreover, as such accountable officers, petitioners Zacaria A. Candao and Abas A. Candao were charged with the
duty of diligently supervising their subordinates to prevent loss of government funds or property, and are thus liable for
any unlawful application of government funds resulting from negligence, as provided in Sections 104 and 105 of
the Government Auditing Code of the Philippines, which read:

Sec. 104. Records and reports required by primarily responsible officers. The head of any agency
or instrumentality of the national government or any government-owned or controlled corporation and
any other self-governing board or commission of the government shall exercise the diligence of a good
father of a family in supervising accountable officers under his control to prevent the incurrence of loss of
government funds or property, otherwise he shall be jointly and solidarily liable with the person primarily
accountable therefor. x x x x

Sec. 105. Measure of liability of accountable officers. x x x

 (2) Every officer accountable for government funds shall be liable for all losses resulting from the
unlawful deposit, use, or application thereof and for all losses attributable to negligence in the keeping of
the funds.

The fact that ARMM was still a recently established autonomous government unit at the time does not mitigate
or exempt petitioners from criminal liability for any misuse or embezzlement of public funds allocated for their operations
and projects. The Organic Act for ARMM (R.A. No. 6734) mandates that the financial accounts of the expenditures and
revenues of the ARMM are subject to audit by the COA.[30] Presently, under the Amended Organic Act (R.A. No. 9054), the
ARMM remained subject to national laws and policies relating to, among others, fiscal matters and general
auditing.[31] Here, the prosecution successfully demonstrated that the illegal withdrawals were deliberately effected
through the issuance of checks without the required disbursement vouchers and supporting documents. And even if
petitioners Zacaria A. Candao and Abas A. Candao invoke lack of knowledge in the criminal design of their subordinate,
Disbursing Officer Haron, they are still liable as co-principals in the crime of malversation assuming such misappropriation
of public funds was not intentional, as alleged in the informations, but due to their negligence in the performance of their
duties. As this Court ratiocinated in Cabello v. Sandiganbayan[32]:

Besides, even on the putative assumption that the evidence against petitioner yielded a case of
malversation by negligence but the information was for intentional malversation, under the
circumstances of this case his conviction under the first mode of misappropriation would still be in order.
Malversation is committed either intentionally or by negligence. The dolo or the culpapresent in the
offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is proper. A possible
exception would be when the mode of commission alleged in the particulars of the indictment is so far
removed from the ultimate categorization of the crime that it may be said due process was denied by
deluding the accused into an erroneous comprehension of the charge against him. That no such prejudice
was occasioned on petitioner nor was he beleaguered in his defense is apparent from the records of this
case.[33] (Emphasis supplied.)

Under Article 217, paragraph 4 of the Revised Penal Code, as amended, the penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed if the amount involved exceeds P22,000.00, in addition to fine
equal to the funds malversed. Considering that neither aggravating nor mitigating circumstance attended the crime
charged, the maximum imposable penalty shall be within the range of the medium period of reclusion temporal maximum
to reclusion perpetua, or eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, the minimum penalty, which is one degree lower from the maximum imposable penalty,
shall be within the range of prision mayor maximum to reclusion temporal medium, or ten (10) years and one (1) day to
seventeen (17) years and four (4) months.[34] The penalty imposed by the Sandiganbayan on petitioners needs therefore
to be modified insofar as the maximum penalty is concerned and is hereby reduced to seventeen (17) years and four (4)
months of reclusion temporal medium, for each count.

WHEREFORE, the petition for review on certiorari is DENIED for lack of merit. The Decision dated October 29,
2008 in Criminal Case Nos. 24569 to 24574, 24575, 24576 to 24584, 24585 to 24592, 24593, 24594, 24595 to 24620 finding
petitioners guilty beyond reasonable doubt of the crime of Malversation of Public Funds under Article 217, paragraph 4
of the Revised Penal Code, as amended, and the Resolution dated February 20, 2009 of the Sandiganbayan (First Division),
denying petitioners motion for reconsideration are AFFIRMED with MODIFICATIONS in that petitioners are instead
accordingly sentenced to suffer an indeterminate prison term of ten (10) years and one (1) day of prision mayor maximum,
as minimum, to seventeen (17) years and four (4) months of reclusion temporal medium, as maximum, in each of the
above-numbered criminal cases.

In addition to the payment of the fine ordered by the Sandiganbayan, and by way of restitution, the petitioners
are likewise ordered to pay, jointly and severally, the Republic of the Philippines through the ARMM-Regional Treasurer,
the total amount of P21,045,570.64 malversed funds as finally determined by the COA.

In the service of their respective sentences, the petitioners shall be entitled to the benefit of the three-fold rule
as provided in Article 70 of the Revised Penal Code, as amended.

With costs against the petitioners. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

11. G.R. No. 206666 January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,

ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.
 DECISION

LEONARDO-DE CASTRO, J.:

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both of the Revised Rules of
Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of the writ of certiorari annulling
and setting aside the April 1, 20131 and April 23, 20132 Resolutions of the Commission on Elections (COMELEC), Second
Division and En bane, respectively, in SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada"
for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction; and (2) a Petition-in-
Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to be declared the 2013 winning candidate for Mayor of the
City of Manila in view of private respondent former President Joseph Ejercito Estrada’s (former President Estrada)
disqualification to run for and hold public office.

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President of the Republic of
the Philippines, for the crime of plunder in Criminal Case No. 26558, entitled "People of the Philippines v. Joseph Ejercito
Estrada, et al." The dispositive part of the graft court’s decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding the accused,
Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in and
penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the prosecution to prove and
establish their guilt beyond reasonable doubt, the Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward S.
Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by Republic Act No. 7659, is
Reclusion Perpetua to Death. There being no aggravating or mitigating circumstances, however, the lesser penalty shall
be applied in accordance with Article 63 of the Revised Penal Code. Accordingly, the accused Former President Joseph
Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute disqualification.

The period within which accused Former President Joseph Ejercito Estrada has been under detention shall be credited to
him in full as long as he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted
prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court
hereby declares the forfeiture in favor of the government of the following:

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One Thousand Pesos
(₱545,291,000.00), with interest and income earned, inclusive of the amount of Two Hundred Million Pesos
(₱200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (₱189,000,000.00), inclusive of interests and income
earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as "Boracay Mansion" located at #100 11th Street,
New Manila, Quezon City.

The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are hereby ordered cancelled and
released to the said accused or their duly authorized representatives upon presentation of the original receipt
evidencing payment thereof and subject to the usual accounting and auditing procedures. Likewise, the hold-departure
orders issued against the said accused are hereby recalled and declared functus oficio.4

On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President Arroyo) extended
executive clemency, by way of pardon, to former President Estrada. The full text of said pardon states:

MALACAÑAN PALACE
MANILA

By the President of the Philippines

PARDON

WHEREAS, this Administration has a policy of releasing inmates who have reached the age of seventy (70),

WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive
clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion
Perpetua. He is hereby restored to his civil and political rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes issued by the
Sandiganbayan in pursuance hereof, except for the bank account(s) he owned before his tenure as President.

Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.

Given under my hand at the City of Manila, this 25th Day of October, in the year of Our Lord, two thousand and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)

Acting Executive Secretary5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted"6 the pardon by affixing his
signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for the position of President. During
that time, his candidacy earned three oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due
Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a
petition for "Disqualification as Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No. 09-104
(DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from Running as President due to Constitutional Disqualification
and Creating Confusion to the Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate
Resolutions8 dated January 20, 2010 by the COMELEC, Second Division, however, all three petitions were effectively
dismissed on the uniform grounds that (i) the Constitutional proscription on reelection applies to a sitting president; and
(ii) the pardon granted to former President Estrada by former President Arroyo restored the former’s right to vote and
be voted for a public office. The subsequent motions for reconsideration thereto were denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections, however, former President Estrada only managed to
garner the second highest number of votes.

Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed a petition for
certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada
and Commission on Elections." But in a Resolution9 dated August 31, 2010, the Court dismissed the aforementioned
petition on the ground of mootness considering that former President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed a Certificate of
Candidacy,10 this time vying for a local elective post, that ofthe Mayor of the City of Manila.

On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification against former President
Estrada before the COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos Vidal anchored her petition on
the theory that "[Former President Estrada] is Disqualified to Run for Public Office because of his Conviction for Plunder
by the Sandiganbayan in Criminal Case No. 26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’
Sentencing Him to Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute Disqualification."11 She relied on
Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC), which
state respectively, that:

Sec. 40, Local Government Code:

SECTION 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) Those removed from
office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue
to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has
been sentenced by final judgmentfor subversion, insurrection, rebellion, or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be
a candidate and to hold any public office, unless he has been given plenary pardon or granted amnesty. (Emphases
supplied.)

In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition for disqualification, the fallo of
which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the consolidated resolution for SPA
No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution affirming it, this Commission will not
be labor the controversy further. Moreso, [Risos-Vidal] failed to present cogent proof sufficient to reverse the standing
pronouncement of this Commission declaring categorically that [former President Estrada’s] right to seek public office
has been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo. Since this
Commission has already spoken, it will no longer engage in disquisitions of a settled matter lest indulged in wastage of
government resources."13

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution dated April 23, 2013.

On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She presented five issues for
the Court’s resolution, to wit:

I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF

JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF MANILA
UNDER SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN CONVICTED OF PLUNDER, AN
OFFENSE INVOLVING MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE PETITION FOR DISQUALIFICATION ON THE GROUND THAT THE CASE INVOLVES
THE SAME OR SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS. ESTRADA", SPA NO. 09-
028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT,
ETC.," SPA NO. 09-104 (DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF
SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING PUBLIC OFFICE; and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF

JURISDICTION IN NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA IN
THE FACE OF HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS PERPETUAL AND
ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO VOTE RESULTING FROM HIS CRIMINAL
CONVICTION FOR PLUNDER.14

While this case was pending beforethe Court, or on May 13, 2013, the elections were conducted as scheduled and
former President Estrada was voted into office with 349,770 votes cast in his favor. The next day, the local board of
canvassers proclaimed him as the duly elected Mayor of the City of Manila.

On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor, moved for leave to
intervene in this case. His motion was granted by the Court in a Resolution15 dated June 25, 2013. Lim subscribed to
Risos-Vidal’s theory that former President Estrada is disqualified to run for and hold public office as the pardon granted
to the latter failed to expressly remit his perpetual disqualification. Further, given that former President Estrada is
disqualified to run for and hold public office, all the votes obtained by the latter should be declared stray, and, being the
second placer with 313,764 votes to his name, he (Lim) should be declared the rightful winning candidate for the
position of Mayor of the City of Manila.

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal actually presents only one
essential question for resolution by the Court, that is, whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former President Estrada is qualified to vote and be voted for in
public office as a result of the pardon granted to him by former President Arroyo.

In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to former President Estrada was
conditional as evidenced by the latter’s express acceptance thereof. The "acceptance," she claims, is an indication of the
conditional natureof the pardon, with the condition being embodied in the third Whereas Clause of the pardon, i.e.,
"WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office." She
explains that the aforementioned commitment was what impelled former President Arroyo to pardon former President
Estrada, without it, the clemency would not have been extended. And any breach thereof, that is, whenformer President
Estrada filed his Certificate of Candidacy for President and Mayor of the City of Manila, he breached the condition of the
pardon; hence, "he ought to be recommitted to prison to serve the unexpired portion of his sentence x x x and
disqualifies him as a candidate for the mayoralty [position] of Manila."16

Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President Estrada mustbe disqualified
from running for and holding public elective office is actually the proscription found in Section 40 of the LGC, in relation
to Section 12 ofthe OEC. She argues that the crime of plunder is both an offense punishable by imprisonment of one
year or more and involving moral turpitude; such that former President Estrada must be disqualified to run for and hold
public elective office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the same did not operate to
make available to former President Estrada the exception provided under Section 12 of the OEC, the pardon being
merely conditional and not absolute or plenary. Moreover, Risos-Vidal puts a premium on the ostensible requirements
provided under Articles 36 and 41 of the Revised Penal Code, to wit:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the
case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)

She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a general statement that
such pardon carries with it the restoration of civil and political rights. By virtue of Articles 36 and 41, a pardon restoring
civil and political rights without categorically making mention what specific civil and political rights are restored "shall
not work to restore the right to hold public office, or the right of suffrage; nor shall it remit the accessory penalties of
civil interdiction and perpetual absolute disqualification for the principal penalties of reclusion perpetua and reclusion
temporal."17 In other words, she considers the above constraints as mandatory requirements that shun a general or
implied restoration of civil and political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and Florentino P. Feliciano in Monsanto
v. Factoran, Jr.18 to endorse her position that "[t]he restoration of the right to hold public office to one who has lost such
right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how
intensely arguable, but must be statedin express, explicit, positive and specific language."

Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such express restoration is further
demanded by the existence of the condition in the [third] [W]hereas [C]lause of the pardon x x x indubitably indicating
that the privilege to hold public office was not restored to him."19
On the other hand, the Office ofthe Solicitor General (OSG) for public respondent COMELEC, maintains that "the issue of
whether or not the pardon extended to [former President Estrada] restored his right to run for public office had already
been passed upon by public respondent COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-
104, there is no cogent reason for it to reverse its standing pronouncement and declare [former President Estrada]
disqualified to run and be voted as mayor of the City of Manila in the absence of any new argument that would warrant
its reversal. To be sure, public respondent COMELEC correctly exercised its discretion in taking judicial cognizance of the
aforesaid rulings which are known toit and which can be verified from its own records, in accordance with Section 2,
Rule 129 of the Rules of Court on the courts’ discretionary power to take judicial notice of matters which are of public
knowledge, orare capable of unquestionable demonstration, or ought to be known to them because of their judicial
functions."20

Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President Estrada’s] conviction for
plunder disqualifies him from running as mayor of Manila under Section 40 of the [LGC], the subsequent grant of pardon
to him, however, effectively restored his right to run for any public office."21 The restoration of his right to run for any
public office is the exception to the prohibition under Section 40 of the LGC, as provided under Section 12 of the OEC. As
to the seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express restoration/remission of a
particular right to be stated in the pardon, the OSG asserts that "an airtight and rigid interpretation of Article 36 and
Article 41 of the [RPC] x x x would be stretching too much the clear and plain meaning of the aforesaid
provisions."22 Lastly, taking into consideration the third Whereas Clause of the pardon granted to former President
Estrada, the OSG supports the position that it "is not an integral part of the decree of the pardon and cannot therefore
serve to restrict its effectivity."23

Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions."24

For his part, former President Estrada presents the following significant arguments to defend his stay in office: that "the
factual findings of public respondent COMELEC, the Constitutional body mandated to administer and enforce all laws
relative to the conduct of the elections, [relative to the absoluteness of the pardon, the effects thereof, and the
eligibility of former President Estrada to seek public elective office] are binding [and conclusive] on this Honorable
Supreme Court;" that he "was granted an absolute pardon and thereby restored to his full civil and political rights,
including the right to seek public elective office such as the mayoral (sic) position in the City of Manila;" that "the
majority decision in the case of Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both
Vidal and Lim as authority for their respective claims, x x x reveal that there was no discussion whatsoever in the ratio
decidendi of the Monsanto case as to the alleged necessity for an expressed restoration of the ‘right to hold public office
in the pardon’ as a legal prerequisite to remove the subject perpetual special disqualification;" that moreover, the
"principal question raised in this Monsanto case is whether or not a public officer, who has been granted an absolute
pardon by the Chief Executive, is entitled to reinstatement toher former position without need of a new appointment;"
that his "expressed acceptance [of the pardon] is not proof that the pardon extended to [him] is conditional and not
absolute;" that this case is a mere rehash of the casesfiled against him during his candidacy for President back in 2009-
2010; that Articles 36 and 41 of the Revised Penal Code "cannot abridge or diminish the pardoning power of the
President expressly granted by the Constitution;" that the text of the pardon granted to him substantially, if not fully,
complied with the requirement posed by Article 36 of the Revised Penal Code as it was categorically stated in the said
document that he was "restored to his civil and political rights;" that since pardon is an act of grace, it must be
construed favorably in favor of the grantee;25 and that his disqualification will result in massive disenfranchisement of
the hundreds of thousands of Manileños who voted for him.26

The Court's Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored allhis civil and political rights, which
naturally includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon
extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36
and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of
the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. Recall that the petition for
disqualification filed by Risos-Vidal against former President Estrada, docketed as SPA No. 13-211 (DC), was anchored on
Section 40 of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime punishable by
imprisonment of one year or more, and involving moral turpitude, former President Estrada must be disqualified to run
for and hold public elective office notwithstanding the fact that he is a grantee of a pardon that includes a statement
expressing "[h]e is hereby restored to his civil and political rights." Risos-Vidal theorizes that former President Estrada is
disqualified from running for Mayor of Manila inthe May 13, 2013 Elections, and remains disqualified to hold any local
elective post despite the presidential pardon extended to him in 2007 by former President Arroyo for the reason that it
(pardon) did not expressly provide for the remission of the penalty of perpetual absolute disqualification, particularly
the restoration of his (former President Estrada) right to vote and bevoted upon for public office. She invokes Articles 36
and 41 of the Revised Penal Code as the foundations of her theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does not
actually specify which political right is restored, it could be inferred that former President Arroyo did not deliberately
intend to restore former President Estrada’s rights of suffrage and to hold public office, orto otherwise remit the penalty
of perpetual absolute disqualification. Even if her intention was the contrary, the same cannot be upheld based on the
pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of
the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the President may not extend
pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in which there was no favorable recommendation coming
from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the
pardoning power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935 Constitution,wherein the
provision granting pardoning power to the President shared similar phraseology with what is found in the present 1987
Constitution, the Court then unequivocally declared that "subject to the limitations imposed by the Constitution, the
pardoning power cannot be restricted or controlled by legislative action." The Court reiterated this pronouncement in
Monsanto v. Factoran, Jr.29 thereby establishing that, under the present Constitution, "a pardon, being a presidential
prerogative, should not be circumscribed by legislative action." Thus, it is unmistakably the long-standing position of this
Court that the exercise of the pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the Constitution.

This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of Congress, specifically
through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987 Constitution when
they flatly rejected a proposal to carve out an exception from the pardoning power of the President in the form of
"offenses involving graft and corruption" that would be enumerated and defined by Congress through the enactment of
a law. The following is the pertinent portion lifted from the Record of the Commission (Vol. II):

MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the same section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may be limited by legislation.

I suggest that this be deletedon the grounds that, first, violations of corrupt practices may include a very little offense
like stealing ₱10; second, which I think is more important, I get the impression, rightly or wrongly, that subconsciously
we are drafting a constitution on the premise that all our future Presidents will bebad and dishonest and, consequently,
their acts will be lacking in wisdom. Therefore, this Article seems to contribute towards the creation of an anti-President
Constitution or a President with vast responsibilities but no corresponding power except to declare martial law.
Therefore, I request that these lines be deleted.

MR. REGALADO. Madam President,may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of the fact that similar to the
provisions on the Commission on Elections, the recommendation of that Commission is required before executive
clemency isgranted because violations of the election laws go into the very political life of the country.

With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have that subjected to the
same condition because violation of our Corrupt Practices Law may be of such magnitude as to affect the very economic
systemof the country. Nevertheless, as a compromise, we provided here that it will be the Congress that will provide for
the classification as to which convictions will still require prior recommendation; after all, the Congress could take into
account whether or not the violation of the Corrupt Practices Law is of such magnitude as to affect the economic life of
the country, if it is in the millions or billions of dollars. But I assume the Congress in its collective wisdom will exclude
those petty crimes of corruption as not to require any further stricture on the exercise of executive clemency because,
of course, there is a whale of a difference if we consider a lowly clerk committing malversation of government property
or funds involving one hundred pesos. But then, we also anticipate the possibility that the corrupt practice of a public
officer is of such magnitude as to have virtually drained a substantial portion of the treasury, and then he goes through
all the judicial processes and later on, a President who may have close connections with him or out of improvident
compassion may grant clemency under such conditions. That is why we left it to Congress to provide and make a
classification based on substantial distinctions between a minor act of corruption or an act of substantial proportions.
SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the word "violations"?

MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or "GROSS" can be misconstrued
by putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and that is precisely why it is
called executive clemency. In this sentence, which the amendment seeks to delete, an exception is being made.
Congress, which is the legislative arm, is allowed to intrude into this prerogative of the executive. Then it limits the
power of Congress to subtract from this prerogative of the President to grant executive clemency by limiting the power
of Congress to only corrupt practices laws. There are many other crimes more serious than these. Under this
amendment, Congress cannot limit the power of executive clemency in cases of drug addiction and drug pushing which
are very, very serious crimes that can endanger the State; also, rape with murder, kidnapping and treason. Aside from
the fact that it is a derogation of the power of the President to grant executive clemency, it is also defective in that it
singles out just one kind of crime. There are far more serious crimes which are not included.

MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is anexecutive power. But
even in the provisions on the COMELEC, one will notice that constitutionally, it is required that there be a favorable
recommendation by the Commission on Elections for any violation of election laws.

At any rate, Commissioner Davide, as the principal proponent of that and as a member of the Committee, has explained
in the committee meetings we had why he sought the inclusion of this particular provision. May we call on
Commissioner Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the Article on Accountability of
Public Officers. Under it, it is mandated that a public office is a public trust, and all government officers are under
obligation to observe the utmost of responsibility, integrity, loyalty and efficiency, to lead modest lives and to act with
patriotism and justice.

In all cases, therefore, which would go into the verycore of the concept that a public office is a public trust, the violation
is itself a violation not only of the economy but the moral fabric of public officials. And that is the reason we now want
that if there is any conviction for the violation of the Anti-Graft and Corrupt Practices Act, which, in effect, is a violation
of the public trust character of the public office, no pardon shall be extended to the offender, unless some limitations
are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the Committee left it entirely
to the legislature to formulate the mechanics at trying, probably, to distinguish between grave and less grave or serious
cases of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this is now the best time, since we have
strengthened the Article on Accountability of Public Officers, to accompany it with a mandate that the President’s right
to grant executive clemency for offenders or violators of laws relating to the concept of a public office may be limited by
Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this Constitutional Commission that we
are emasculating the powers of the presidency, and this provision to me is another clear example of that. So, I speak
against this provision. Even the 1935 and the 1973 Constitutions do not provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I am in sympathy with the
stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we should remember that above all the elected or
appointed officers of our Republic, the leader is the President. I believe that the country will be as the President is, and if
we systematically emasculate the power of this presidency, the time may come whenhe will be also handcuffed that he
will no longer be able to act like he should be acting.

So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

MR. COLAYCO. Thank you very much, Madam President.

I seldom rise here to object to or to commend or to recommend the approval of proposals, but now I find that the
proposal of Commissioner Tan is worthy of approval of this body.

Why are we singling out this particular offense? There are other crimes which cast a bigger blot on the moral character
of the public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief Executive in deciding
whether to pardon, to reprieve or to commute the sentence rendered by the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be Commissioner Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the Anti-Graft Court, so if this is
allowed to stay, it would mean that the President’s power togrant pardon or reprieve will be limited to the cases
decided by the Anti-Graft Court, when as already stated, there are many provisions inthe Revised Penal Code that
penalize more serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the exercise of executive
clemency, usually under Article V of the Revised Penal Code the judge will recommend such exercise of clemency. And
so, I am in favor of the amendment proposed by Commissioner Tan for the deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the President. In case of other
criminals convicted in our society, we extend probation to them while in this case, they have already been convicted and
we offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them by the
President. If we still close this avenue to them, they would be prejudiced even worse than the murderers and the more
vicious killers in our society. I do not think they deserve this opprobrium and punishment under the new Constitution.

I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also because of the objection
of the main proponent, Commissioner Davide. So we feel that the Commissioners should vote on this question.

VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to delete the last sentence of
Section 17 appearing on lines 7, 8 and 9, please raise their hand. (Several Members raised their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is approved.30 (Emphases supplied.)

The proper interpretation of Articles

36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code cannot, in any way,
serve to abridge or diminish the exclusive power and prerogative of the President to pardon persons convicted of
violating penal statutes.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific textual commands which
must be strictly followed in order to free the beneficiary of presidential grace from the disqualifications specifically
prescribed by them.

Again, Articles 36 and 41 of the Revised Penal Code provides:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.

xxxx

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of reclusion perpetua
and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the
case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)

A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is unwarranted, especially so if it
will defeat or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from ambiguity, it
must be given its literal meaning and applied without attempted interpretation. Verba legis non est recedendum. From
the words of a statute there should be no departure.31 It is this Court’s firm view that the phrase in the presidential
pardon at issue which declares that former President Estrada "is hereby restored to his civil and political rights"
substantially complies with the requirement of express restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express remission and/or
restoration of the rights of suffrage and/or to hold public office in the pardon granted to former President Estrada, as
required by Articles 36 and 41 of the Revised Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed by the President, as they
do not abridge or diminish the President’s power to extend clemency. He opines that they do not reduce the coverage of
the President’s pardoning power. Particularly, he states:

Articles 36 and 41 refer only to requirements of convention or form. They only provide a procedural prescription. They
are not concerned with areas where or the instances when the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no other governmental instrumentality needs to intervene to give it
full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the restoration of the
rights of suffrage and to hold public office, or the remission of the accessory penalty of perpetual absolute
disqualification,he or she should do so expressly. Articles 36 and 41 only ask that the President state his or her intentions
clearly, directly, firmly, precisely, and unmistakably. To belabor the point, the President retains the power to make such
restoration or remission, subject to a prescription on the manner by which he or she is to state it.32

With due respect, I disagree with the overbroad statement that Congress may dictate as to how the President may
exercise his/her power of executive clemency. The form or manner by which the President, or Congress for that matter,
should exercise their respective Constitutional powers or prerogatives cannot be interfered with unless it is so provided
in the Constitution. This is the essence of the principle of separation of powers deeply ingrained in our system of
government which "ordains that each of the three great branches of government has exclusive cognizance of and is
supreme in matters falling within its own constitutionally allocated sphere."33 Moreso, this fundamental principle must
be observed if noncompliance with the form imposed by one branch on a co-equal and coordinate branch will result into
the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the
executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to
impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the
Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to
define crimes and prescribe the penalties for such crimes and the power of the President to grant executive clemency.
All that the said provisions impart is that the pardon of the principal penalty does notcarry with it the remission of the
accessory penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes the
Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while
excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so
decided upon by the President on the penalties imposedin accordance with law.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of
reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a
penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The
sentence that followed, which states that "(h)e is hereby restored to his civil and political rights," expressly remitted the
accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and
41 of the Revised Penal Code, it is indubitable from the textof the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of
reclusion perpetua.
In this jurisdiction, the right toseek public elective office is recognized by law as falling under the whole gamut of civil
and political rights.

Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention and Reacquisition Act of 2003,"
reads as follows:

Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce
their oath of allegiance to the country where they took that oath; (4) Those intending to practice their
profession in the Philippines shall apply with the proper authority for a license or permit to engage in such
practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or
extended to, those who:

(a) are candidates for or are occupying any public office in the country of which theyare naturalized
citizens; and/or

(b) are in active service as commissioned or non commissioned officers in the armed forces of the
country which they are naturalized citizens. (Emphases supplied.)

No less than the International Covenant on Civil and Political Rights, to which the Philippines is a signatory,
acknowledges the existence of said right. Article 25(b) of the Convention states: Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without
unreasonable restrictions:

xxxx

(b) To vote and to be electedat genuine periodic elections which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the will of the electors[.] (Emphasis supplied.)

Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred to the right to seek public
elective office as a political right, to wit:

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their
citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The
petitioner’s failure to comply there with in accordance with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain
her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is
ineligible to run for and hold any elective office in the Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally considered as a political
right. Hence, the Court reiterates its earlier statement that the pardon granted to former President Estrada admits no
other interpretation other than to mean that, upon acceptance of the pardon granted tohim, he regained his FULL civil
and political rights – including the right to seek elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal provisions; and prescribes a
formal requirement that is not only unnecessary but, if insisted upon, could be in derogation of the constitutional
prohibition relative to the principle that the exercise of presidential pardon cannot be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr.36 to justify her argument that
an absolute pardon must expressly state that the right to hold public office has been restored, and that the penalty of
perpetual absolute disqualification has been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices Teodoro R. Padilla and
Florentino P. Feliciano are to be respected, they do not form partof the controlling doctrine nor to be considered part of
the law of the land. On the contrary, a careful reading of the majority opinion in Monsanto, penned by no less than Chief
Justice Marcelo B. Fernan, reveals no statement that denotes adherence to a stringent and overly nuanced application
of Articles 36 and 41 of the Revised Penal Code that will in effect require the President to use a statutorily prescribed
language in extending executive clemency, even if the intent of the President can otherwise be deduced from the text or
words used in the pardon. Furthermore, as explained above, the pardon here is consistent with, and not contrary to, the
provisions of Articles 36 and 41.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was
removed by his acceptance of the absolute pardon granted to him.

Section 40 of the LGC identifies who are disqualified from running for any elective local position. Risos-Vidal argues that
former President Estrada is disqualified under item (a), to wit:

(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[.] (Emphasis supplied.)

Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an exception, to wit:

Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted amnesty. (Emphasis supplied.)

As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder disqualifies him from
running for the elective local position of Mayor of the City of Manila under Section 40(a) of the LGC. However, the
subsequent absolute pardon granted to former President Estrada effectively restored his right to seek public elective
office. This is made possible by reading Section 40(a) of the LGC in relation to Section 12 of the OEC.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of the
OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter provision
allows any person who has been granted plenary pardon or amnesty after conviction by final judgment of an offense
involving moral turpitude, inter alia, to run for and hold any public office, whether local or national position.

Take notice that the applicability of Section 12 of the OEC to candidates running for local elective positions is not
unprecedented. In Jalosjos, Jr. v. Commission on Elections,37 the Court acknowledged the aforementioned provision as
one of the legal remedies that may be availed of to disqualify a candidate in a local election filed any day after the last
day for filing of certificates of candidacy, but not later than the date of proclamation.38 The pertinent ruling in the
Jalosjos case is quoted as follows:
What is indisputably clear is that false material representation of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a crime penalized by prision mayor, a petition under
Section 12 ofthe Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The
petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy
to adopt belongs to petitioner.39 (Emphasis supplied.)

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada
has publicly committed to no longer seek any elective position or office," neither makes the pardon conditional, nor
militate against the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have
been restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified
use of the term "civil and political rights"as being restored. Jurisprudence educates that a preamble is not an essential
part of an act as it is an introductory or preparatory clause that explains the reasons for the enactment, usually
introduced by the word "whereas."40 Whereas clauses do not form part of a statute because, strictly speaking, they are
not part of the operative language of the statute.41 In this case, the whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make its
effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner Maria Gracia Padaca’s
separate concurring opinion in the assailed April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which
captured the essence of the legal effect of preambular paragraphs/whereas clauses, viz:

The present dispute does not raise anything which the 20 January 2010 Resolution did not conclude upon. Here,
Petitioner Risos-Vidal raised the same argument with respect to the 3rd "whereas clause" or preambular paragraph of
the decree of pardon. It states that "Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office." On this contention, the undersigned reiterates the ruling of the Commission that the 3rd preambular
paragraph does not have any legal or binding effect on the absolute nature of the pardon extended by former President
Arroyo to herein Respondent. This ruling is consistent with the traditional and customary usage of preambular
paragraphs. In the case of Echegaray v. Secretary of Justice, the Supreme Court ruled on the legal effect of preambular
paragraphs or whereas clauses on statutes. The Court stated, viz.:

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It
cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble
can neither expand nor restrict its operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to seek a public
office again, the former ought to have explicitly stated the same in the text of the pardon itself. Since former President
Arroyo did not make this an integral part of the decree of pardon, the Commission is constrained to rule that the 3rd
preambular clause cannot be interpreted as a condition to the pardon extended to former President
Estrada.42 (Emphasis supplied.)

Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s decision torun for
President in the May 2010 elections against, among others, the candidate of the political party of former President
Arroyo, after the latter’s receipt and acceptance of the pardon speaks volume of her intention to restore him to his
rights to suffrage and to hold public office.

Where the scope and import of the executive clemency extended by the President is in issue, the Court must turn to the
only evidence available to it, and that is the pardon itself. From a detailed review ofthe four corners of said document,
nothing therein gives an iota of intimation that the third Whereas Clause is actually a limitation, proviso, stipulation or
condition on the grant of the pardon, such that the breach of the mentioned commitment not to seek public office will
result ina revocation or cancellation of said pardon. To the Court, what it is simply is a statement of fact or the prevailing
situation at the time the executive clemency was granted. It was not used as a condition to the efficacy orto delimit the
scope of the pardon.

Even if the Court were to subscribe to the view that the third Whereas Clausewas one of the reasons to grant the
pardon, the pardon itself does not provide for the attendant consequence of the breach thereof. This Court will be hard
put to discern the resultant effect of an eventual infringement. Just like it will be hard put to determine which civil or
political rights were restored if the Court were to take the road suggested by Risos-Vidal that the statement "[h]e is
hereby restored to his civil and political rights" excludes the restoration of former President Estrada’s rights to suffrage
and to hold public office. The aforequoted text ofthe executive clemency granted does not provide the Court with any
guide asto how and where to draw the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the pardon is contingent on
the condition that former President Estrada will not seek janother elective public office, but it actually concerns the
coverage of the pardon – whether the pardon granted to former President Estrada was so expansive as to have restored
all his political rights, inclusive of the rights of suffrage and to hold public office. Justice Leonen is of the view that the
pardon in question is not absolute nor plenary in scope despite the statement that former President Estrada is "hereby
restored to his civil and political rights," that is, the foregoing statement restored to former President Estrada all his civil
and political rights except the rights denied to him by the unremitted penalty of perpetual absolute disqualification
made up of, among others, the rights of suffrage and to hold public office. He adds that had the President chosen to be
so expansive as to include the rights of suffrage and to hold public office, she should have been more clear on her
intentions.

However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of the Court, iscrystal clear
– the pardon granted to former President Estrada was absolute, meaning, it was not only unconditional, it was
unrestricted in scope, complete and plenary in character, as the term "political rights"adverted to has a settled meaning
in law and jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word "full" can be construed as
excluding the restoration of the rights of suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term "political rights" used alone without any qualification. How to
ascribe to the latter term the meaning that it is "partial" and not "full" defies one’s understanding. More so, it will be
extremely difficult to identify which of the political rights are restored by the pardon, when the text of the latter is silent
on this matter. Exceptions to the grant of pardon cannot be presumed from the absence of the qualifying word "full"
when the pardon restored the "political rights" of former President Estrada without any exclusion or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former President Estrada was
absolute in the absence of a clear, unequivocal and concrete factual basis upon which to anchor or support the
Presidential intent to grant a limited pardon.

To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand close scrutiny even under the
provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

The Court has consistently held that a petition for certiorariagainst actions of the COMELEC is confined only to instances
of grave abuse of discretion amounting to patentand substantial denial of due process, because the COMELEC is
presumed to be most competent in matters falling within its domain.43
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to passion, prejudice or
personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to
perform a positive duty enjoined by law or to act at all in contemplation of law. For an act to be condemned as having
been done with grave abuse of discretion, such an abuse must be patent and gross.44

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to prove that the
assailed COMELEC Resolutions were issued in a "whimsical, arbitrary or capricious exercise of power that amounts to an
evasion orrefusal to perform a positive duty enjoined by law" or were so "patent and gross" as to constitute grave abuse
of discretion.

On the foregoing premises and conclusions, this Court finds it unnecessary to separately discuss Lim's petition-in-
intervention, which substantially presented the same arguments as Risos-Vidal's petition.

WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED. The Resolution dated April 1, 2013 of
the Commission on Elections, Second Division, and the Resolution dated April 23, 2013 of the Commission on Elections,
En bane, both in SPA No. 13-211 (DC), are AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

12. G.R. No. 193237 October 9, 2012

DOMINADOR G. JALOSJOS, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.

x-----------------------x

G.R. No. 193536

AGAPITO J. CARDINO, Petitioner,

vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.

DECISION

CARPIO, J.:

These are two special civil actions for certiorari1 questioning the resolutions of the Commission on Elections (COMELEC)
in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010
Resolution2 of the COMELEC First Division and the 11 August 2010 Resolution3 of the COMELEC En Banc, which both
ordered the cancellation of his certificate of candidacy on the ground of false material representation. In G.R. No.
193536, Agapito J. Cardino (Cardino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which applied
the rule on succession under the Local Government Code in filling the vacancy in the Office of the Mayor of Dapitan City,
Zamboanga del Norte created by the cancellation of Jalosjos’ certificate of candidacy.

The Facts

Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May 2010 elections.
Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition under Section 78 of the Omnibus
Election Code to deny due course and to cancel the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos
made a false material representation in his certificate of candidacy when he declared under oath that he was eligible for
the Office of Mayor.

Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been convicted by final
judgment for robbery and sentenced to prisión mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu City, in
Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his sentence. Jalosjos admitted
his conviction but stated that he had already been granted probation. Cardino countered that the RTC revoked Jalosjos’
probation in an Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5
February 2004 declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during
the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same grounds.4

The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows:

As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22, 1969 in Cebu City.
On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City found him and his co-
accused guilty of robbery and sentenced them to suffer the penalty of prision correccional minimum to prision mayor
maximum. Jalosjos appealed this decision to the Court of Appeals but his appeal was dismissed on August 9, 1973. It was
only after a lapse of several years or more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before
the RTC Branch 18 of Cebu City which was granted by the court. But then, on motion filed by his Probation Officer,
Jalosjos’ probation was revoked by the RTC Cebu City on March 19, 1987 and the corresponding warrant for his arrest
was issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod issued a
Certification attesting that respondent Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This
Certification was the one used by respondent Jalosjos to secure the dismissal of the disqualification case filed against
him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan dated September
29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation Administration, guilty of
violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on December 19, 2003 attesting to the fact that
respondent Jalosjos had fully complied with the terms and conditions of his probation. A portion of the decision of the
Sandiganbayan is quoted hereunder:

The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr., unwarranted benefits and
advantage because the subject certification, which was issued by the accused without adequate or official support, was
subsequently utilized by the said probationer as basis of the Urgent Motion for Reconsideration and to Lift Warrant of
Arrest that he filed with the Regional Trial Court of Cebu City, which prompted the said court to issue the Order dated
February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with the order of
probation and setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest; and that said Certification
was also used by the said probationer and became the basis for the Commission on Elections to deny in its Resolution of
August 2, 2004 the petition or [sic] private complainant James Adasa for the disqualification of the probationer from
running for re-election as Mayor of Dapitan City in the National and Local Elections of 2004.5

The COMELEC’s Rulings

On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled Jalosjos’ certificate of candidacy.
The COMELEC First Division concluded that "Jalosjos has indeed committed material misrepresentation in his certificate
of candidacy when he declared, under oath, that he is eligible for the office he seeks to be elected to when in fact he is
not by reason of a final judgment in a criminal case, the sentence of which he has not yet served."6 The COMELEC First
Division found that Jalosjos’ certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet
served his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight months and
twenty days of prisión correccional as minimum, to four years, two months and one day of prisión mayor as maximum.
The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his disqualification as provided for in Section
40(a) of Republic Act No. 7160."7

On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsideration. The pertinent portions of the 11
August 2010 Resolution read:

With the proper revocation of Jalosjos’ earlier probation and a clear showing that he has not yet served the terms of his
sentence, there is simply no basis for Jalosjos to claim that his civil as well as political rights have been violated. Having
been convicted by final judgment,

Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the elected mayor in
the May 10, 2010 election does not deprive the Commission of its authority to resolve the present petition to its finality,
and to oust him from the office he now wrongfully holds.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of merit. Jalosjos is hereby
OUSTED from office and ordered to CEASE and DESIST from occupying and discharging the functions of the Office of the
Mayor of Dapitan City, Zamboanga. Let the provisions of the Local Government Code on succession apply.

SO ORDERED.8

Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his petition on 17
September 2010, docketed as G.R. No. 193536.

On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.

WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed Resolution dated
May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC) are
hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its resolution in G.R. No.
193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29 March 2011, this Court resolved11 to
consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a Manifestation on 1 June 2012 which stated that
"he has resigned from the position of Mayor of the City of Dapitan effective 30 April 2012, which resignation was
accepted by the Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation was made
"in deference with the provision of the Omnibus Election Code in relation to his candidacy as Provincial Governor of
Zamboanga del Sur in May 2013."13

These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’ Motion for Reconsideration in G.R. No.
193237 and Cardino’s Petition in G.R. No. 193536, we address not only Jalosjos’ eligibility to run for public office and the
consequences of the cancellation of his certificate of candidacy, but also COMELEC’s constitutional duty to enforce and
administer all laws relating to the conduct of elections.

The Issues

In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion amounting to lack or excess
of jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2) ruled that Jalosjos was disqualified to run as
candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos’ certificate of candidacy without
making a finding that Jalosjos committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in
good faith upon a previous COMELEC decision declaring him eligible for the same position from which he is now being
ousted. Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules
of Procedure.

In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion amounting to lack or excess
of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution that the provisions of the Local
Government Code on succession should apply.

This Court’s Ruling

The perpetual special disqualification against Jalosjos arising from his criminal conviction by final judgment is a material
fact involving eligibility which is a proper ground for a petition under Section 78 of the Omnibus Election Code. Jalosjos’
certificate of candidacy was void from the start since he was not eligible to run for any public office at the time he filed
his certificate of candidacy. Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes. As a
result of Jalosjos’ certificate of candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered
the highest number of votes for the position of Mayor.

The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First Division and the 11
August 2010 Resolution of the COMELEC En Banc. The dissenting opinions erroneously limit the remedy against Jalosjos
to disqualification under Section 68 of the Omnibus Election Code and apply the rule on succession under the Local
Government Code.

A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false material
representation which is a ground for a petition under Section 78 of the same Code. Sections 74 and 78 read:

Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the
Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he
seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office
address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country;
that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and
that the facts stated in the certificate of candidacy are true to the best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election. (Emphasis supplied)

Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A
candidate is eligible if he has a right to run for the public office.14 If a candidate is not actually eligible because he is
barred by final judgment in a criminal case from running for public office, and he still states under oath in his certificate
of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation
that is a ground for a petition under Section 78.

A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the Local Government
Code and under Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility of a candidate
under Sections 74 and 78 of the Omnibus Election Code. Thus, a person can file a petition under Section 40 of the Local
Government Code or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read:

Section 40, Local Government Code:

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) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue
to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

Section 12, Omnibus Election Code:

Sec. 12. Disqualifications. — Any person who has been declared by competent authority insane or incompetent, or has
been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced
to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his
service of sentence, unless within the same period he again becomes disqualified.

Section 68, Omnibus Election Code:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision
by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism
to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d)
solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.

Revised Penal Code:

Art. 27. Reclusion perpetua. — x x x

Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and temporary
disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is
imposed as an accessory penalty, in which case, it shall be that of the principal penalty.

xxxx

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or
temporary absolute disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which the offender may have held, even if conferred
by popular election.

2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such
office.

3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article
shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or
temporary special disqualification for public office, profession or calling shall produce the following effects:

1. The deprivation of the office, employment, profession or calling affected.

2. The disqualification for holding similar offices or employments either perpetually or during the term of the
sentence, according to the extent of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage.
— The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any
popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to
hold any public office during the period of his disqualification.

Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall
suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
(Emphasis supplied)

The penalty of prisión mayor automatically carries with it, by operation of law,15 the accessory penalties of temporary
absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary
absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective
office or to be elected to such office." The duration of the temporary absolute disqualification is the same as that of the
principal penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual special disqualification
means that "the offender shall not be permitted to hold any public office during the period of his disqualification," which
is perpetually. Both temporary absolute disqualification and perpetual special disqualification constitute ineligibilities to
hold elective public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and
commits a false material representation if he states in his certificate of candidacy that he is eligible to so run.

In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory penalty of
perpetual special disqualification:

On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of a crime
penalized with prisión mayor which carried the accessory penalties of temporary absolute disqualification and perpetual
special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election
Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of
imprisonment.

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to
vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised
Penal Code) that, in the case of Abes, would have expired on 13 October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the
exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or
hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of
the sentence. Article 32, Revised Penal Code, provides:

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage.
— The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any
popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to
hold any public office during the period of disqualification.

The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their
respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the
phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the
perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their
durations into one period, states that such duration is "according to the nature of said penalty" — which means
according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right
to vote or to be elected to or hold public office perpetually."

The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction
becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on
whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be
permitted to hold any public office during the period of his perpetual special disqualification." Once the judgment of
conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his
conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective
public office perpetually. In the case of Jalosjos, he became ineligible perpetually to hold, or to run for, any elective
public office from the time his judgment of conviction became final.

Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this
accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the
statement that Section 74 requires him to state under oath. As used in Section 74, the word "eligible" means having the
right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for public
office. As this Court held in Fermin v. Commission on Elections,17 the false material representation may refer to
"qualifications or eligibility." One who suffers from perpetual special disqualification is ineligible to run for public office.
If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is
eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section 78. As this Court explained in Fermin:

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false, which may relate to the
qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the
constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently
states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due
course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo
warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a
candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning candidate.18 (Emphasis supplied)

Conviction for robbery by final judgment with the penalty of prisión mayor, to which perpetual special disqualification
attaches by operation of law, is not a ground for a petition under Section 68 because robbery is not one of the offenses
enumerated in Section 68. Insofar as crimes are concerned, Section 68 refers only to election offenses under the
Omnibus Election Code and not to crimes under the Revised Penal Code. For ready reference, we quote again Section 68
of the Omnibus Election Code:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision
by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions;

(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified
from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws. (Emphasis supplied)

There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as one of the
offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to offenses under the Omnibus
Election Code. The dissenting opinion of Justice Reyes gravely errs when it holds that Jalosjos’ conviction for the crime of
robbery under the Revised Penal Code is a ground for "a petition for disqualification under Section 68 of the OEC and
not for cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished in laws other
than in the Omnibus Election Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19 the
Court declared:

The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus
Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction.They are criminal and not
administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement that the
candidate is a natural born or naturalized Filipino citizen; (2) a statement that the candidate is not a permanent resident
of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible for the office he seeks election; and
(4) a statement of the candidate’s allegiance to the Constitution of the Republic of the Philippines.20

We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy when he stated under
oath that he was eligible to run for mayor? The COMELEC and the dissenting opinions all found that Jalosjos was not
eligible to run for public office. The COMELEC concluded that Jalosjos made a false material representation that is a
ground for a petition under Section 78. The dissenting opinion of Justice Reyes, however, concluded that the ineligibility
of Jalosjos is a disqualification which is a ground for a petition under Section 68 and not under Section 78. The dissenting
opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section
78 without, however, saying under what specific provision of law a petition against Jalosjos can be filed to cancel his
certificate of candidacy.

What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a crime penalized by prisión mayor, a petition under
Section 12 of the Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The
petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy
to adopt belongs to the petitioner.

The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the ground of
ineligibility that existed at the time of the filing of the certificate of candidacy can never give rise to a valid candidacy,
and much less to valid votes.21 Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the start to
run for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the
cancellation on such ground means he was never a valid candidate from the very beginning, his certificate of candidacy
being void ab initio. Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of
his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified
candidate for Mayor in the May 2010 elections – Cardino – who received the highest number of votes.

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or
declared ineligible22 should be limited to situations where the certificate of candidacy of the first-placer was valid at the
time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment
that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally
the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for
such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-placer in
the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election,
prevailing jurisprudence holds that all votes for that candidate are stray votes.23 If a certificate of candidacy void ab initio
is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the
certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of
the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can
operate to defeat one or more valid certificates of candidacy for the same position.

Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the
Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering
from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of
conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running
for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final
judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed
that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC
because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative
to the conduct of an election."24 The disqualification of a convict to run for public office under the Revised Penal Code, as
affirmed by final judgment of a competent court, is part of the enforcement and administration of "all laws" relating to
the conduct of elections.

To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from
perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior
perpetual special disqualification, Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in
its constitutional duty to "enforce and administer all laws" relating to the conduct of elections if it does not motu
proprio bar from running for public office those suffering from perpetual special disqualification by virtue of a final
judgment.

WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is
GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En
Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran
unopposed in the May 2010 elections and thus received the highest number of votes for Mayor. The COMELEC En Bane
is DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of
Dapitan City, Zamboanga del Norte.

Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department of Interior and
Local Government so they can cause the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to his
conviction for the crime of robbery in a final judgment issued by the Regional Trial Court (Branch 18) of Cebu City in
Criminal Case No. CCC-XIV-140-CEBU.

SO ORDERED.

EN BANC

13. G.R. No. 132875-76 February 3, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO G. JALOSJOS, accused-appellant.

RESOLUTION
YNARES-SANTIAGO, J.:

The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the national
penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts1is pending
appeal. The accused-appellant filed this motion asking that he be allowed to fully discharge the duties of a Congressman,
including attendance at legislative sessions and committee meetings despite his having been convicted in the first
instance of a non-bailable offense.

The issue raised is one of the first impression.

Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in
general? In answering the query, we are called upon to balance relevant and conflicting factors in the judicial
interpretation of legislative privilege in the context of penal law.

The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was
filed on the grounds that —

1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any ruling,
giving priority to any right or interest — not even the police power of the State.

2. To deprive the electorate of their elected representative amounts to taxation without representation.

3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the
renewed mandates entrusted to him by the people.

4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.

5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.

6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of
government to respect its mandate.

7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to discharge
his mandate.

8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.

The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of the
First District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by his
constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his constituents
made possible by the intervention of the State. He adds that it cannot be defeated by insuperable procedural restraints
arising from pending criminal cases.

True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects
to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its importance, the
privileges and rights arising from having been elected may be enlarged or restricted by law. Our first task is to ascertain
the applicable law.

We start with the incontestable proposition that all top officials of Government-executive, legislative, and judicial are
subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment to
high government office, by itself, frees the official from the common restraints of general law. Privilege has to be
granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of
obedience rather than exemption.

The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily
addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that privilege
has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be
extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable
considerations.

The 1935 Constitution provided in its Article VI on the Legislative Department.

Sec 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and
breach of the peace be privileged from arrest during their attendance at the sessions of Congress, and in going
to and returning from the same, . . .

Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim
parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or
whose convictions were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest during his attendance at its sessions and in going to and returning from
the same.

For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive
interpretation of immunity and intent to confine it within carefully defined parameters is illustrated by the concluding
portion of the provision, to wit:

. . . but the Batasang Pambansa shall surrender the member involved the custody of the law within twenty four
hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its
failure to do so.

The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject
Congressman to the custody of the law. The requirement that he should be attending sessions or committee meetings
has also been removed. For relatively minor offenses, it is enough that Congress is in session.

The accused-appellant argues that a member of Congress' function to attend sessions is underscored by Section 16 (2),
Article VI of the Constitution which states that —

(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from
day to day and may compel the attendance of absent Members in such manner, and under such penalties, as
such House may provide.

However, the accused-appellant has not given any reason why he should be exempted from the operation of Section 11,
Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason
for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by
imprisonment of more than six months is not merely authorized by law, it has constitutional foundations.

Accused-appellant's reliance on the ruling in Aguinaldo v. Santos2, which states, inter alia, that —
 The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their officers. When a people have elected a man to office,
it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or
forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or
misconduct, to practically overrule the will of the people.

will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case
involves the administrative removal of a public officer for acts done prior to his present term of office. It does not apply
to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is
not removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or,
otherwise, disqualified.

One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society must
protect itself. It also serves as an example and warning to others.

A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United
States v. Gustilo,3 it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to
the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to
incarceration if there is risk of his absconding.4

The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by
unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his
regular place of confinement.

It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded capture despite a
call from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to
the authorities. Ironically, it is now the same body whose call he initially spurned which accused-appellant is invoking to
justify his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to well-
defined Constitutional restrains, it would be a mockery of the aims of the State's penal system.

Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several motions to
temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:

a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the issue
of whether to expel/suspend him from the House of Representatives;

b) to undergo dental examination and treatment at the clinic of his dentist in Makati City;

c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City;

d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by chartered
plane and private vehicle.

He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he was
likewise allowed/permitted to leave the prison premises, to wit.

a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany
seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one
guard and allowed to use his own vehicle and driver in going to and from the project area and his place of
confinement.

b) to continue with his dental treatment at the clinic of his dentist in Makati City.
 c) to be confined at the Makati Medical Center in Makati City for his heart condition.

There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling
temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court
orders.

What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional
sessions and committee meeting for five (5) days or more in a week will virtually make him free man with all the
privilege appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a
special class, it also would be a mockery of the purposes of the correction system. Of particular relevance in this regard
are the following observations of the Court in Martinez v. Morfe:5

The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be
sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the
Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of their conscience of their conscience. Necessarily
the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it
would amount to the creation of a privileged class, without justification in reason, if notwithstanding their
liability for a criminal offense, they would be considered immune during their attendance in Congress and in
going to and returning from the same. There is likely to be no dissent from the proposition that a legislator or a
delegate can perform his functions efficiently and well, without the need for any transgression of the criminal
law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that
there is a strong public interest in seeing to it that crime should not go unpunished. To the fear that may be
expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the
minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution,
solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The
presumption of course is that the judiciary would remain independent. It is trite to say that in each and every
manifestation of judicial endeavor, such a virtue is of the essence.

The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be
heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal
branch of government to respect his mandate. He also claims that the concept of temporary detention does not
necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/restrictions
when he is allowed to leave jail.

We remain unpersuaded.1âwphi1.nêt

No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is
provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives Complex,
Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an] inter-department
coordination, he is also provided with an office at the Administration Building, New Bilibid Prison, Muntinlupa City,
where he attends to his constituents." Accused-appellant further admits that while under detention, he has filed several
bills and resolutions. It also appears that he has been receiving his salaries and other monetary benefits. Succinctly
stated, accused-appellant has been discharging his mandate as a member of the House of Representative consistent
with the restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even
have been allowed by the prison authorities at the National Penitentiary to perform these acts.

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the
limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results
which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with
full knowledge that he suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his
full term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws."6 This simply means that
all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.7 The organs of
government may not show any undue favoritism or hostility to any person. Neither partiality not prejudice shall be
displayed.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman
a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons
validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an excuse to free a person
validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts
that the duty to legislative ranks highest in the hierarchy of government. The accused-appellant is only one of 250
members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of
legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on
the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the
highest for that particular duty. The importance of a function depends on the need to its exercise. The duty of a mother
to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives
of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must
maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from
those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or
against groups or types of individuals.8

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of
government authority to regulate even if thereby certain groups may plausibly assert that their interests are
disregarded.9

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law
enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are
germane to the purposes of the law and apply to all those belonging to the same class.10

Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise
of his power of
locomotion.11

More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is restraint by
judgment of a court or lawful tribunal, and is personal to the accused.12 The term refers to the restraint on the personal
liberty of another; any prevention of his movements from place to place, or of his free action according to his own
pleasure and will.13 Imprisonment is the detention of another against his will depriving him of his power of
locomotion14 and it "[is] something more than mere loss of freedom. It includes the notion of restraint within limits
defined by wall or any exterior barrier."15

It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in society.16 Prison
officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well as
of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily, both
these demands require the curtailment and elimination of certain rights.17

Premises considered, we are constrained to rule against the accused-appellant's claim that re-election to public office
gives priority to any other right or interest, including the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.

SO ORDERED.

EN BANC

14. [ GR Nos. 138874-75, Feb 03, 2004 ]

PEOPLE v. FRANCISCO JUAN LARRAÑAGA +

DECISION

466 Phil. 324

PER CURIAM:
For most of the Cebuanos, the proceedings in these cases will always be remembered as the "trial of the century." A
reading of the voluminous records readily explains why the unraveling of the facts during the hearing before the court
below proved transfixing and horrifying and why it resulted in unusual media coverage.

These cases involve the kidnapping and illegal detention of a college beauty queen along with her comely and
courageous sister. An intriguing tale of ribaldry and gang-rape was followed by the murder of the beauty queen. She was
thrown off a cliff into a deep forested ravine where she was left to die. Her sister was subjected to heartless indignities
before she was also gang-raped. In the aftermath of the kidnapping and rape, the sister was made to disappear. Where
she is and what further crimes were inflicted upon her remain unknown and unsolved up to the present.

Before us in an appeal from the Decision[1] dated May 5, 1999 of the Regional Trial Court, Branch 7, Cebu City in Criminal
Cases Nos. CBU 45303-45304, finding Rowen Adlawan alias "Wesley," Josman Aznar, Ariel Balansag, Alberto Caño alias
"Allan Pahak," Francisco Juan Larrañaga alias "Paco," James Andrew Uy alias "MM," and James Anthony Uy alias "Wang
Wang," appellants herein, guilty beyond reasonable doubt of the crimes of kidnapping and serious illegal detention and
sentencing each of them to suffer the penalties of "two (2)reclusiones perpetua" and to indemnify the heirs of the
victims, sisters Marijoy and Jacqueline Chiong, jointly and severally, the amount of P200,000.00 as actual damages and
P5,000,000.00 as moral and exemplary damages.

The Fourth Amended Informations[2] for kidnapping and illegal detention dated May 12, 1998 filed against appellants
and Davidson Rusia alias "Tisoy Tagalog," the discharged state witness, read as follows:

1) For Criminal Case No. CBU-45303.[3]

"xxx

"That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court, the said accused, all private individuals, conniving, confederating and
mutually helping with one another, with deliberate intent, did then and there willfully, unlawfully and feloniously kidnap
or deprive one Marijoy Chiong, of her liberty and on the occasion thereof, and in connection, accused, with deliberate
intent, did then and there have carnal knowledge of said Marijoy against her will with the use of force and intimidation
and subsequent thereto and on the occasion thereof, accused with intent to kill, did then and there inflict physical
injuries on said Marijoy Chiong throwing her into a deep ravine and as a consequence of which, Marijoy Chiong died.

"CONTRARY TO LAW."

2) For Criminal Case CBU-45304:[4]

"xxx

"That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, all private individuals, conniving, confederating and
mutually helping with one another, with deliberate intent, did then and there willfully, unlawfully and feloniously kidnap
or deprive one Jacqueline Chiong of her liberty, thereby detaining her until the present.

"CONTRARY TO LAW."
On separate arraignments, state witness Davison Rusia and appellants Rowen Adlawan, Josman Aznar, Ariel Balansag,
Alberto Caño, James Andrew and James Anthony Uy pleaded not guilty.[5] Appellant Francisco Juan Larrañaga refused to
plead, hence, the trial court entered for him the plea of "not guilty."[6] Thereafter, trial on the merits ensued.

In the main, the prosecution evidence centered on the testimony of Rusia.[7] Twenty-one witnesses[8]corroborated his
testimony on major points. For the defense, appellants James Anthony Uy and Alberto Caño took the witness stand.
Appellant Francisco Juan Larrañaga was supposed to testify on his defense of alibi but the prosecution and the defense,
through a stipulation approved by the trial court, dispensed with his testimony. Nineteen witnesses testified for the
appellants, corroborating their respective defenses of alibi.

The version of the prosecution is narrated as follows:

On the night of July 16, 1997, sisters Marijoy and Jacqueline Chiong, who lived in Cebu City, failed to come home on the
expected time. It was raining hard and Mrs. Thelma Chiong thought her daughters were simply having difficulty getting a
ride. Thus, she instructed her sons, Bruce and Dennis, to fetch their sisters. They returned home without Marijoy and
Jacqueline. Mrs. Chiong was not able to sleep that night. Immediately, at 5:00 o'clock in the morning, her entire family
started the search for her daughters, but there was no trace of them. Thus, the family sought the assistance of the police
who continued the search. But still, they could not find Marijoy and Jacqueline.[9]

Meanwhile, in the morning of July 18, 1997, a certain Rudy Lasaga reported to the police that a young woman was found
dead at the foot of a cliff in Tan-awan, Carcar, Cebu.[10] Officer-in-Charge Arturo Unabia and three other policemen
proceeded to Tan-awan and there, they found a dead woman lying on the ground. Attached to her left wrist was a
handcuff.[11] Her pants were torn, her orange t-shirt was raised up to her breast and her bra was pulled down. Her face
and neck were covered with masking tape.[12]

On July 19, 1996, upon hearing the news about the dead woman, Mrs. Chiong's son Dennis and other relatives
proceeded to the Tupaz Funeral Parlor at Carcar, Cebu to see the body. It was Marijoy dressed in the same orange shirt
and maong pants she wore when she left home on July 16, 1997. Upon learning of the tragic reality, Mrs. Chiong became
frantic and hysterical. She could not accept that her daughter would meet such a gruesome fate.[13]

On May 8, 1998, or after almost ten months, the mystery that engulfed the disappearance of Marijoy and Jacqueline
was resolved. Rusia, bothered by his conscience and recurrent nightmares,[14] admitted before the police having
participated in the abduction of the sisters.[15] He agreed to re-enact the commission of the crimes.[16]

On August 12, 1998, Rusia testified before the trial court how the crimes were committed and identified all the
appellants as the perpetrators. He declared that his conduit to Francisco Juan Larrañaga was Rowen Adlawan whom he
met together with brothers James Anthony and James Andrew Uy five months before the commission of the crimes
charged.[17] He has known Josman Aznar since 1991. He met Alberto Caño and Ariel Balansag only in the evening of July
16, 1997.

Or, July 15, 1997, while Rusia was loafing around at the Cebu Plaza Hotel, Cebu City, Rowen approached him and
arranged that they meet the following day at around 2:00 o'clock in the afternoon.[18] When they saw each other the
next day, Rowen told him to stay put at the Ayala Mall because they would have a "big happening" in the evening. All
the while, he thought that Rowen's "big happening" meant group partying or scrounging. He thus lingered at the Ayala
Mall until the appointed time came.[19]

At 10:30 in the evening, Rowen returned with Josman. They met Rusia at the back exit of the Ayala Mall and told him
to ride with them in a white car. Rusia noticed that a red car was following them. Upon reaching Archbishop Reyes
Avenue, same city, he saw two women standing at the waiting shed.[20] Rusia did not know yet that their names were
Marijoy and Jacqueline.

Josman stopped the white car in front of the waiting shed and he and Rowen approached and invited Marijoy and
Jacqueline to join them.[21] But the sisters declined. Irked by the rejection, Rowen grabbed Marijoy while Josman held
Jacqueline and forced both girls to ride in the car.[22] Marijoy was the first one to get inside, followed by Rowen.
Meanwhile, Josman pushed Jacqueline inside and immediately drove the white car. Rusia sat on the front seat beside
Josman.

Fourteen (14) meters from the waiting shed, Jacqueline managed to get out of the car. Josman chased her and brought
her back into the car. Not taking anymore chances, Rowen elbowed Jacqueline on the chest and punched Marijoy on the
stomach, causing both girls to faint.[23] Rowen asked Rusia for the packaging tape under the latter's seat and placed it on
the girls' mouths. Rowen also handcuffed them jointly. The white and red cars then proceeded to Fuente Osmeña, Cebu
City.

At Fuente Osmeña, Josman parked the car near a Mercury Drug Store and urged Rusia to inquire if a van that was parked
nearby was for hire. A man who was around replied "no" so the group immediately left. The two cars stopped again near
Park Place Hotel where Rusia negotiated to hire a van. But no van was available. Thus, the cars sped to a house in
Guadalupe, Cebu City known as the safehouse of the "Jozman Aznar Group" Thereupon, Larrañaga, James Anthony and
James Andrew got out of the red car.

Larrañaga, James Anthony and Rowen brought Marijoy to one of the rooms, while Rusia and Josman led Jacqueline to
another room. Josman then told Rusia to step out so Rusia stayed at the living room with James Andrew. They remained
in the house for fifteen (15) to twenty (20) minutes. At that time, Rusia could hear Larrañaga, James Anthony, and
Rowen giggling inside the room.

Thereafter, the group brought Marijoy and Jacqueline back to the white car. Then the two cars headed to the South Bus
Terminal where they were able to hire a white van driven by Alberto. Ariel was the conductor. James Andrew drove the
white car, while the rest of the group boarded the van. They traveled towards south of Cebu City, leaving the red car at
the South Bus Terminal.

Inside the van, Marijoy and Jacqueline were slowly gaining strength. James Anthony taped their mouths anew and
Rowen handcuffed them-together. Along the way, the van and the white car stopped by a barbeque store. Rowen got
off the van and bought barbeque and Tanduay rhum. They proceeded to Tan-awan.[24] Then they parked their vehicles
near a precipice[25] where they drank and had a pot session. Later, they pulled Jacqueline out of the van and told her to
dance as they encircled her. She was pushed from one end of the circle to the other, ripping her clothes in the process.
Meanwhile, Josman told Larrañaga to start raping Marijoy who was left inside the van. The latter did as told and after
fifteen minutes emerged from the van saying, "who wants next?" Rowen went in, followed by James Anthony, Alberto,
the driver, and Ariel, the conductor. Each spent a few minutes inside the van and afterwards came out smiling.[26]

Then they carried Marijoy out of the van, after which Josman brought Jacqueline inside the vehicle. Josman came out
from the van after ten minutes, saying, "whoever wants next go ahead and hurry up." Rusia went inside the van and
raped Jacqueline, followed by James Andrew. At this instance, Marijoy was to breathe her last for upon Josman's
instruction, Rowen and Ariel led her to the cliff and mercilessly pushed her into the ravine[27] which was almost 150
meters deep.[28]

As for Jacqueline, she was pulled out of the van and thrown to the ground. Able to gather a bit of strength, she tried to
run towards the road. The group boarded the van, followed her and made fun of her by screaming, "run some more"
There was a tricycle passing by. The group brought Jacqueline inside the van. Rowen beat her until she passed out. The
group then headed back to Cebu City with James Andrew driving the white car. Rusia got off from the van somewhere
near the Ayala Center.[29]

There were other people who saw snippets of what Rusia had witnessed. Sheila Singson,[30] Analie Konahap[31]and
Williard Redobles[32] testified that Marijoy and Jacqueline were talking to Larrañaga and Josman before they were
abducted. Roland Dacillo[33] saw Jacqueline alighting and running away from a white car and that Josman went after her
and grabbed her back to the car. Alfredo Duarte[34] testified that he was at the barbeque stand when Rowen bought
barbeque; that Rowen asked where he could buy Tanduay; that he saw a white van and he heard therefrom voices of a
male and female who seemed to be quarreling; that he also heard a cry of a woman which he could not understand
because "it was as if the voice was being controlled;" and that after Rowen got his order, he boarded the white van
which he recognized to be previously driven by Alberto Caño. Meanwhile, Mario Miñoza,[35] a tricycle driver plying the
route of Carcar-Mantalongon, saw Jacqueline running towards Mantalongon. Her blouse was torn and her hair was
disheveled. Trailing her was a white van where a very loud rock music could be heard. Manuel Camingao[36] recounted
that on July 17, 1997, at about 5:00 o'clock in the morning, he saw a white van near a cliff at Tan-awan. Thinking that the
passenger of the white van was throwing garbage at the cliff, he wrote its plate number (GGC-491) on the side of his
tricycle.[37]

Still, there were other witnesses[38] presented by the prosecution who gave details which, when pieced together,
corroborated well Rusia's testimony on what transpired at the Ayala Center all the way to Carcar.

Against the foregoing facts and circumstances, the appellants raised the defense of alibi, thus:

Larrañaga, through his witnesses, sought to establish that on July 16, 1997, he was in Quezon City taking his mid-term
examinations at the Center for Culinary Arts. In the evening of that day until 3:00 o'clock in the morning of July 17, 1997,
he was with his friends at the R & R Bar and Restaurant, same city. Fifteen witnesses testified that they were either with
Larrañaga or saw him in Quezon City at the time the crimes were committed. His friends, Lourdes
Montalvan,[39] Charmaine Flores,[40] Richard Antonio,[41] Jheanessa Fonacier,[42] Maharlika Shulze,[43] Sebastian
Seno,[44] Francisco Jarque,[45] Raymond Garcia,[46] Cristina Del Gallego,[47] Mona Lisa Del Gallego,[48] Paolo Celso[49] and
Paolo Manguerra[50] testified that they were with him at the R & R Bar on the night of July 16, 1997. The celebration was
a "despedida" for him as he was leaving the next day for Cebu and a "bienvenida" for another friend. Larrañaga's
classmate Carmina Esguerra[51] testified that he was in school on July 16, 1997 taking his mid-term examinations. His
teacher Rowena Bautista,[52] on the other hand, testified that he attended her lecture in Applied Mathematics. Also,
some of his neighbors at the Loyola Heights Condominium, Quezon City, including the security guard, Salvador Boton,
testified that he was in his condo unit in the evening of July 16, 1997. Representatives of the four airline companies
plying the route of Manila-Cebu-Manila presented proofs showing that the name Francisco Juan Larrañaga does not
appear in the list of pre-flight and post-flight manifests from July 15, 1997 to about noontime of July 17, 1997.

Meanwhile, James Anthony Uy testified that on July 16, 1997, he and his brother James Andrew were at home in Cebu
City because it was their father's 50th birthday and they were celebrating the occasion with a small party which ended
at 11:30 in the evening.[53] He only left his house the next day, July 17, 1997 at about 7:00 o'clock in the morning to go to
school.[54] The boys' mother, Marlyn Uy, corroborated his testimony and declared that when she woke up at 2:00 o'clock
in the morning to check on her sons, she found them sleeping in their bedrooms. They went to school the next day at
about 7:00 o'clock in the morning.[55]

Clotilde Soterol testified for Alberto and Ariel. She narrated that on July 16, 1997, at around 7:00 o'clock in the evening,
Alberto brought the white Toyota van with Plate No. GGC-491 to her shop to have its aircon repaired. Alberto was
accompanied by his wife Gina Caño, co-appellant Ariel, and spouses Catalina and Simplicio Paghinayan, owners of the
vehicle. Since her (Clotildes') husband was not yet around, Alberto just left the vehicle and promised to return the next
morning. Her husband arrived at 8:30 in the evening and started to repair the aircon at 9:00 o'clock of the same evening.
He finished the work at 10:00 o'clock the following morning. At 11:00 o'clock, Alberto and his wife Gina, Ariel and
Catalina returned to the shop to retrieve the vehicle.[56] Alberto,[57]Gina[58] and Catalina[59] corroborated Clotilde's
testimony.

To lend support to Josman's alibi, Michael Dizon recounted, that on July 16, 1997, at about 8:00 o'clock in the evening,
he and several friends were at Josman's house in Cebu. They ate their dinner there and afterwards drank "Blue Label."
They stayed at Josman's house until 11:00 o'clock in the evening. Thereafter, they proceeded to BAI Disco where they
drank beer and socialized with old friends. They stayed there until 1:30 in the morning of July 17, 1997. Thereafter,
they transferred to DTM Bar. They went home together at about 3:00 o'clock in the morning. Their friend, Jonas Dy
Pico, dropped Josman at his house.[60]

Concerning state witness Rusia, on August 7, 1998, when the prosecution moved that he be discharged as an accused for
the purpose of utilizing him as a state witness,[61] Larrañaga and brothers James Anthony and James Andrew opposed
the motion on the ground that he does not qualify as a state witness under Section 9, Rule 119 of the Revised Rules of
Court on Criminal Procedure.[62] On August 12, 1998, the trial court allowed the prosecution to present Rusia as its
witness but deferred resolving its motion to discharge until it has completely presented its evidence.[63] On the same
date, the prosecution finished conducting Rusia's direct examination.[64] The defense lawyers cross-examined him on
August 13, 17, and 20, 1998.[65] On the last date, Judge Ocampo provisionally terminated the cross-examination due to
the report that there was an attempt to bribe him and because of his deteriorating health.[66]

Resenting the trial court's termination of Rusia's cross-examination, the defense lawyers moved for the inhibition of
Judge Ocampo.[67] When he informed the defense lawyers that he would not inhibit himself since he found no "just and
valid reasons" therefor, the defense lawyers withdrew en masse as counsel for the appellants declaring that they would
no longer attend the trial. Judge Ocampo held them-guilty-of direct contempt of court. Thus, defense lawyers
Raymundo Armovit, Edgar Gica, Fidel Gonzales, Ramon Teleron, Alfonso de la Cerna and Lorenzo Paylado were ordered
jailed.

In the Order dated August 25, 1998, the trial court denied the motion for inhibition of the defense lawyers and ordered
them to continue representing their respective clients so that the cases may undergo the mandatory continuous trial.
The trial court likewise denied their motion to withdraw as appellants' counsel because of their failure to secure a prior
written consent from their clients. On August 26, 1998, appellants filed their written consent to the withdrawal of their
counsel.

Thereafter, Larrañaga, Josman and brothers James Anthony and James Andrew moved for the postponement of the
hearing for several weeks to enable them to hire the services of new counsel.[68] On August 31, 1998, the trial court
denied appellants' motions on the ground that it could no longer delay the hearing of the cases. On September 2, 1998,
the trial court directed the Public Attorney's Office (PAO) to act as counsel de oficio for all the appellants.[69]

Trial resumed on September 3, 1998 with a team of PAO lawyers assisting appellants. Larrañaga objected to the
continuation of the direct examination of the prosecution witnesses as he was not represented by his counsel de
parte. The trial court overruled his objection. The prosecution witnesses testified continuously from September 3, 1998
to September 24, 1998. Meanwhile, the cross-examination of said witnesses was deferred until the appellants were able
to secure counsel of their choice. On the same date, September 24, 1998, Atty. Eric C. Villarmia entered his appearance
as counsel for Larrañaga, while Atty. Eric S. Carin appeared as counsel for brothers James Anthony and James Andrew.

Thereafter, or on October 1, 1998, the defense lawyers started cross-examining Rusia. The cross-examination continued
on October 5, 6, 12 and 13, 1998.

Eventually, acting on the prosecution's motion to discharge Rusia to be a state witness, the trial court required the
"opposing parties to submit their respective memoranda. On November 12, 1998, the trial court issued an omnibus
order granting the prosecution's motion discharging Rusia as an accused and according him the status of a state
witness.

On May 5, 1999, the trial court rendered the assailed Decision, the dispositive portion of which reads:

"WHEREFORE, all the accused Francisco Juan Larrañaga, Josman Aznar, James Andrew Uy, James Anthony Uy, Rowen
Adlawan, Alberto Caño, and Ariel Balansag are hereby found Guilty beyond reasonable doubt of two crimes of
Kidnapping and Serious Illegal Detention and are hereby sentenced to imprisonment of Two (2) Reclusiones
Perpetua each which penalties, however, may be served by them simultaneously(Article 70, Revised Penal Code).
Further, said accused are hereby ordered to indemnify the heirs of the two (2) victims in these cases, jointly and
severally, in the amount of P200,000.00 in actual damages and P5,000,000.00 by way of moral and exemplary damages.

"SO ORDERED."
Hence, the instant separate appeals. Appellants Rowen, Alberto and Ariel ascribe to the trial court the following errors:

"I

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE UNTRUSTWORTHY, INCONSISTENT, CONTRADICTORY AND
INCREDULOUS TESTIMONY OF (DAVIDSON) VALIENTE RUSIA.

"II

THE COURT A QUO ERRED IN ADMITTING THE TESTIMONY OF THE PROSECUTION WITNESSES, NOTWITHSTANDING THE
FACT THAT THE DEFENDANTS WERE NOT DULY REPRESENTED BY COUNSELS OF THEIR OWN CHOICE DURING THE TIME
THESE WITNESSES WERE PRESENTED.

"III

THE COURT A QUO ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR.

"IV

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES.

"V

THE COURT A QUO ERRED IN DISPLAYING MANIFEST ANIMOSITY TOWARDS THE DEFENSE'S WITNESSES WHICH CLEARLY
SHOWED ITS PREJUDICE AND BIAS IN DECIDING THE CASE.

"VI

THE COURT A QUO ERRED IN NOT ALLOWING SOME DEFENSE WITNESSES TO TESTIFY.

"VII

THE COURT A QUO ERRED IN CONSIDERING ROWEN ADLAWAN TO HAVE WAIVED PRESENTATION OF EVIDENCE IN HIS
BEHALF."
For his part, Josman raises the following assignments of error:

"I

THE TRIAL COURT GRAVELY ERRED IN DISCHARGING DAVID VALIENTE RUSIA AS STATE WITNESS IN GROSS AND BLATANT
DISREGARD OF THE RULES ON DISCHARGE OF STATE WITNESS.

"II

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO RUSIA'S TESTIMONY DESPITE CLEAR SHOWING THAT HIS
CRIMINAL RECORD AS AN EX-CONVlCT, DRUG ADDICT AND GANGSTER AND HIS SUICIDAL TENDENCIES SERIOUSLY
IMPAIR HIS CREDIBILITY AND INNATE CAPACITY FOR TRUTH, HONESTY AND INTEGRITY.

"III

THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO RUSIA'S TESTIMONY REPLETE AS IT WAS WITH
INCONSISTENCIES, FALSEHOODS AND LIES.

"IV

THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO THE CORROBORATIVE TESTIMONIES OF THE
PROSECUTION WITNESSES.

"V

THE TRIAL COURT GRAVELY ERRED IN DENYING APPELLANT AZNAR HIS RIGHT TO DUE PROCESS AND IN DEPRIVING HIM
OF THE CONSTITUTIONAL RIGHTS OF AN ACCUSED.

"VI

THE TRIAL JUDGE VIOLATED AZNAR'S RIGHT TO DUE PROCESS WHEN THE TRIAL JUDGE REFUSED TO INHIBIT HIMSELF
AND PROCEEDED WITH THE TRIAL DESPITE GLARING BADGES OF HIS PARTIALITY AND BIAS FOR THE PROSECUTION.

"VII

THE TRIAL COURT GRAVELY ERRED IN DISCREDITING AND DISREGARDING THE DEFENSE OF APPELLANT AZNAR.

"VIII

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT AZNAR ON THE BASIS OF PROSECUTING EVIDENCE
MAINLY ANCHORED ON RUSIA'S TESTIMONY WHICH FAILED TO EVINCE PROOF BEYOND REASONABLE DOUBT OF
APPELLANT AZNAR'S CRIMINAL LIABILITY."
In his 145-page appellant's brief, Larrañaga alleges that the trial court committed the following errors:

"6.1 THE TRIAL COURT ERRED IN IGNORING AND VIOLATING DUE PROCESS RIGHTS OF THE ACCUSED.
6.2 THE TRIAL COURT ERRED IN ALLOWING THE DISCHARGE OF ACCUSED DAVIDSON RUSIA.

6.3 THE TRIAL COURT ERRED IN GIVING PARTIAL CREDIBILITY TO THE TESTIMONY OF DAVIDSON RUSIA.

6.4 THE TRIAL COURT ERRED IN CONSIDERING THE TESTIMONIES OF THE OTHER WITNESSES.

6.5 THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF OTHER WITNESSES.

6.6 THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS OVERCOME THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.

6.7 THE TRIAL COURT ERRED IN DISREGARDING AND REJECTING, EVEN AT DIRECT TESTIMONY STAGE, THE ACCUSED-
APPELLANT'S DEFENSE OF ALIBI."
For their part, brothers James Anthony and James Andrew, in their 147-page appellants' brief, bid for an acquittal on the
following grounds:

"A) THE TRIAL COURT BELOW GRIEVOUSLY FAILED TO OBSERVE, AND THUS DENIED ACCUSED JAMES ANTHONY S. UY
AND JAMES ANDREW S. UY THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW, TO BE PRESUMED INNOCENT, TO
HAVE COUNSEL OF THEIR OWN CHOICE, TO HAVE AN IMPARTIAL JUDGE, TO MEET WITNESSES FACE TO FACE, AND TO
PRODUCE EVIDENCE ON THEIR BEHALF;

B) THE PROSECUTION EVIDENCE HAS ABSOLUTELY NOTHING TO SUPPORT THE CONVICTION OF ACCUSED JAMES
ANTHONY S. UY AND JAMES ANDREW S. UY IN THESE CASES THUS THE TRIAL COURT BELOW SERIOUSLY AND
GRIEVOUSLY ERRED WHEN IT RENDERED THE 5 MAY 1999 JUDGMENT OF CONVICTION AGAINST THEM."[70]
Appellants' assignments of error converge on four points, thus: (1) violation of their right to due process; (2) the
improper discharge of Rusia as an accused to be a state witness; (3) the insufficiency of the evidence of the prosecution;
and (4) the trial court's disregard and rejection of the evidence for the defense.

The appeal is bereft of merit.

I. Violation of Appellants' Right to Due Process

Due process of law is the primary and indispensable foundation of individual freedoms; it is the basic and essential term
in the social compact which defines the rights of the individual and delimits the powers which the State may
exercise.[71] In evaluating a due process claim, the court must determine whether life, liberty or property interest exists,
and if so, what procedures are constitutionally required to protect that right.[72]Otherwise stated, the due process clause
calls for two separate inquiries in evaluating an alleged violation: did the plaintiff lose something that fits into one of the
three protected categories of life, liberty, or property?; and, if so, did the plaintiff receive the minimum measure of
procedural protection warranted under the circumstances?[73]

For our determination, therefore, is whether the minimum requirements of due process were accorded to appellants
during the trial of these cases.

Section 14, Article III of our Constitution catalogues the essentials of due process in a criminal prosecution, thus:

"SEC. 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have
a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been notified and his failure to appear is
unjustifiable."
Rule 115 of the Revised Rules of Criminal Procedure casts the foregoing provision in a more detailed manner, thus:

"SECTION 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled to the following
rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to
promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations
set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of
the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be
present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on
all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance
of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct
examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its
evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines,
unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving
the same parties and subject matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his
behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law."
Of the foregoing rights, what appellants obviously claim as having been trampled upon by the trial court are
their: (a) right to be assisted by counsel at every stage of the proceedings; (b) right to confront and cross-examine the
prosecution witnesses; (c) right to produce evidence on their behalf; and (d) right to an impartial trial.

A. Right to Counsel

Anent the right to counsel, appellants fault the trial court: first, for appointing counsel de oficio despite their insistence
to be assisted by counsel of their own choice; and second, for refusing to suspend trial until they shall have secured the
services of new counsel.

Appellants cannot feign denial of their right to counsel. We have held that there is no denial of the right to counsel
where a counsel de oficio was appointed during the absence of the accused's counsel de parte, pursuant to the court's
desire to finish the case as early as practicable under the continuous trial system.[74]

Indisputably, it was the strategic machinations of appellants and their counsel de parte which prompted the trial court
to appoint counsel de oficio. The unceremonious withdrawal of appellants' counsel de parte during the proceedings of
August 24, 1998, as well as their stubborn refusal to return to the court for trial undermines the continuity of the
proceedings. Considering that the case had already been dragging on a lethargic course, it behooved the trial court to
prevent any further dilatory maneuvers on the part of the defense counsel. Accordingly, it was proper for the trial court
to appoint counsel de oficio to represent appellants during the remaining phases of the proceedings.

At any rate, the appointment of counsel de oficio under such circumstances is not proscribed by the Constitution. An
examination of its provisions concerning the right to counsel shows that the "preference in the choice of counsel"
pertains more aptly and specifically to a person under investigation[75] rather than an accused in a criminal
prosecution.[76] And even if we are to extend the "application of the concept of "preference in the choice of counsel" to
an accused in a criminal prosecution, such preferential discretion is not absolute as would enable him to choose a
particular counsel to the exclusion of others equally capable. We stated the reason for this ruling in an earlier case:

"Withal, the word 'preferably' under Section 12 (1), Article 3 of the 1987 Constitution does not convey the message that
the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and
independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial
investigation, will be solely in the hands of the accused who can impede, nay, obstruct the progress of the
interrogation by simply selecting a lawyer, who for one reason or another, is not available to protect his interest. This
absurd scenario could not have been contemplated by the framers of the charter."[77]
In the same breath, the choice of counsel by the accused in a criminal prosecution is not a plenary one. If the chosen
counsel deliberately makes himself scarce, the court is not precluded from appointing a de oficio counsel whom it
considers competent and independent to enable the trial to proceed until the counsel of choice enters his
appearance. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused to the detriment of
the eventual resolution of the case.[78]

Neither is there a violation of appellants' right to counsel just because the trial court did not grant their request for
suspension of the hearing pending their search for new counsel. An application for a continuance in order to secure the
services of counsel is ordinarily addressed to the discretion of the court, and the denial thereof is not ordinarily an
infringement of the accused's right to counsel.[79] The right of the accused to select his own counsel must be exercised
in a reasonable time and in a reasonable manner.[80]

In the present case, appellants requested either one (1) month or three (3) weeks to look for new counsel. Such periods
are unreasonable. Appellants could have hired new lawyers at a shorter time had they wanted to. They should have
been diligent in procuring new counsel.[81] Constitutional guaranty of right to representation by counsel does not mean
that accused may avoid trial by neglecting or refusing to secure assistance of counsel and by refusing to participate in
his trial.[82] It has been held that where the accused declined the court's offer to appoint counsel and elected to defend
himself, the denial of his motion made toward the end of the trial for a continuance so that he could obtain counsel of
his own choice was not an infringement of his constitutional rights.[83] While the accused has the right to discharge or
change his counsel at any time, this right is to some extent subject to supervision by the trial court, particularly after the
trial has commenced. The court may deny accused's application to discharge his counsel where it appears that such
application is not made in good faith but is made for purposes of delay.[84]

Significantly, parallel to the hearing at the trial court were also petitions and motions involving several incidents in these
cases filed with the Court of Appeals and this Court. The appellants, particularly Larrañaga, were represented there by
the same counsel de parte.[85] Certainly, it is wrong for these lawyers to abandon appellants in the proceeding before the
trial court and unceasingly represent them in the appellate courts. Indeed, in doing so, they made a mockery of judicial
process and certainly delayed the hearing before the court below. In Lacambra vs. Ramos,[86] we ruled:

"The Court cannot help but note the series of legal maneuvers resorted to and repeated importunings of the accused or
his counsel, which resulted in the protracted trial of the case, thus making a mockery of the judicial process, not to
mention the injustice caused by the delay to the victim's family."
Furthermore, appellants' counsel de parte ought to know that until their withdrawal shall have been approved by the
appellants, they still remain the counsel of record and as such, they must do what is expected of them, that is, to protect
their interests.[87] They cannot walk out from a case simply because they do not agree with the ruling of the judge. Being
officers of the court whose duty is to assist in administering justice, they may not withdraw or be permitted to withdraw
as counsel in a case if such withdrawal will work injustice to a client or frustrate the ends of justice.[88]

B. Right to Confront and Cross-

Examine the Prosecution
Witnesses.

Appellants also fault the trial court for depriving them of the right to cross-examine Rusia and the other prosecution
witnesses. Appellants' assertion has no factual and legal anchorage. For one, it is not true that they were not given
sufficient opportunity to cross-examine Rusia. All of appellants' counsel de parte had a fair share of time in grilling Rusia
concerning his background to the kidnapping of Marijoy and Jacqueline. The records reveal the following dates of his
cross-examination:

Lawyers Dates of Cross-examination

1. Armovit (for Larrañaga) August 13 and 17, 1998

2. Gonzales (for Larrañaga) August 20, 1998
3. Gica (for Josman) August 20, 1998
4. Paylado (for James Anthony and James Andrew) August 20, 1998
5. De la Cerna (for Rowen, Alberto and Ariel) August 20, 1998
October 1, 1998
6. Villarmia (for Larrañaga)
7. Andales (for Josman) October 5 and 6, 1998
8. Carin (for James Andrew and James Anthony) October, 5, 1998
9 Debalucos (for Rowen, Caño and Balansag) October 12, 1998
10. De Jesus (for Rowen, Alberto and Ariel) October 12, 1998
11. Ypil (for Rowen, Alberto and Ariel) October 12, 1998[89]
That the trial court imposed limitation on the length of time counsel for appellants may cross-examine Rusia cannot be
labeled as a violation of the latter's constitutional right. Considering that appellants had several lawyers, it was just
imperative for the trial court to impose a time limit on their cross-examination so as not to waste its time on repetitive
and prolix questioning.

Indeed, it is the right and duty of the trial court to control the cross-examination of witnesses, both for the purpose of
conserving its time and protecting the witnesses from prolonged and needless examination.[90] Where several accused
are being tried jointly for the same offense, the order in which counsel for the several defendants shall cross-examine
the state's witnesses may be regulated by the court[91] and one of them may even be denied the right to cross-examine
separately where he had arranged with the others that counsel of one of them should cross-examine for all.[92] In People
vs. Gorospe,[93] we ruled:

"While cross-examination is a right available to the adverse party, it is not absolute in the sense that a cross-examiner
could determine for himself the length and scope of his cross-examination of a witness. The court has always the
discretion to limit the cross-examination and to consider it terminated if it would serve the ends of justice."
The transcript of stenographic notes covering Rusia's cross-examination shows that appellants' counsel had ample
chance to test his credibility.

Records show that the failure of the PAO lawyers to cross-examine some of the prosecution witnesses was due to
appellants' obstinate refusal. In its Order[94] dated September 8, 1998, the trial court deferred the cross-examination in
view of appellants' insistence that their new counsel de parte will conduct the cross-examination. So as not to unduly
delay the hearing, the trial court warned the appellants that if by September 24, 1998, they are not yet represented by
their new counsel de parte, then it will order their counsel de oficio to conduct the cross-examination. Lamentably, on
September 24, 1998, appellants' counsel de parte entered their appearances merely to seek another postponement of
the trial. Thus, in exasperation, Judge Ocampo remarked:

"Every time a defense counsel decides to withdraw, must an accused be granted one (1) month suspension of trial to
look for such new counsel to study the records and transcripts? Shall the pace of the trial of these cases be thus left to
the will or dictation of the accused - whose defense counsels would just suddenly withdraw and cause such long
suspensions of the trial while accused allegedly shop around for new counsels and upon hiring new counsels ask for
another one month trial suspension for their new lawyers to study the records? While all the time such defense counsels
(who allegedly have already withdrawn) openly continue to 'advise' their accused-clients and even file 'Manifestations'
before this Court and Petitions for Certiorari, Injunction and Inhibition on behalf of accused before the Court of Appeals
and the Supreme Court?

"What inanity is this that the accused and their lawyers are foisting upon this Court? In open defiance of the provisions
of SC A.O. No. 104-96 that these heinous crimes cases shall undergo 'mandatory continuous trial and shall be
terminated within sixty (60) days'?"
Still, in its Order dated October 8, 1998, the trial court gave appellants' new counsel de parte a period until October 12,
1998 to manifest whether they are refusing to cross-examine the prosecution witnesses concerned; if so, then the court
shall consider them to have waived their right to cross-examine those witnesses. During the hearing on October 12,
1998, Larrañaga's new counsel de parte, Atty. Villarmia, manifested that he would not cross-examine the prosecution
witnesses who testified on direct examination when Larrañaga was assisted by counsel de officio only. The next day, the
counsel de parte of Josman, and brothers James Anthony and James Andrew adopted Atty. Villarmia's manifestation.
Counsel for Rowen, Alberto and Ariel likewise refused to cross-examine the same witnesses. Thus, in its Order dated
October 14, 1998, the trial court deemed appellants to have waived their right to cross-examine the prosecution
witnesses.

It appears therefore, that if some of the prosecution witnesses were not subjected to cross-examination, it was not
because appellants were not given the opportunity to do so. The fact remains that their new counsel de parterefused to
cross-examine them. Thus, appellants waived their right "to confront and cross examine the witnesses" against them.

C. Right to Impartial
Trial

Appellants imputes bias and partiality to Judge Ocampo when he asked questions and made comments when the
defense witnesses were testifying.

Canon 14 of the Canons of Judicial Ethics states that a judge may properly intervene during trial to promote expeditious
proceeding, prevent unnecessary waste of time and dilly-dallying of counsel or clear up obscurities. The test is whether
the intervention of the judge tends to prevent the proper presentation of a cause or the ascertainment of the truth in
the matter where he interposes his questions or comments.

Records show that the intervention by way of comment of Judge Ocampo during the hearing was not only appropriate
but was necessary. One good illustration is his explanation on alibi. Seeing that the appellants' counsel were about to
present additional witnesses whose testimonies would not establish the impossibility of appellants' presence in the
scene of the crime, Judge Ocampo intervened and reminded appellants' counsel of the requisites of alibi, thus:

"Well, I'm not saying that there is positive identification. I'm only saying that in proving your alibi you must stick by what
the Supreme Court said that it was impossible if they are telling the truth, di ba? Now with these other witnesses na hindi
naman ganoon to that effect it does not prove that it was impossible, e, what is the relevance on that? What is the
materiality? lyon ang point ko. We are wasting our time with that testimony. Ilang witnesses and epe-present to that
effect. Wala rin namang epekto. It will not prove that it was not impossible for him to go to Cebu at 10:30 P.M., of July
16, e, papano yan? We are being criticized by the public already for taking so long a time of the trial of these cases which
is supposed to be finished within 60 days. Now from August, September, October, November, December and January,
magse-six months na, wala pa and you want to present so many immaterial witnesses."
Surely, we cannot fault Judge Ocampo for exhaustively reminding appellants' counsel of the parameters of alibi to
ensure that there will be an orderly and expeditious presentation of defense witnesses and that there will be no time
wasted by dispensing with the testimonies of witnesses which are not relevant. Remarks which merely manifest a
desire to confine the proceedings to the real point in issue and to expedite the trial do not constitute a rebuke of
counsel.[95]

Appellants also decry the supposed harshness of Judge Ocampo towards the witnesses for the defense, namely: Lourdes
Montalvan, Michael Dizon, Rebecca Seno, Clotilde Soterol, Salvador Boton, Catalina Paghinayan and Paolo Celso.

With respect to Lourdes Montalvan, Judge Ocampo expressed surprise on "how a 17-year-old girl could go to a man's
apartment all alone." He said that such conduct "does not seem to be a reasonable or a proper behavior for a 17-year-
old girl to do." These statements do not really indicate bias or prejudice against the defense witnesses. The transcript of
stenographic notes reveals that Judge Ocampo uttered them, not to cast doubt on the moral character of Lourdes
Montalvan, but merely to determine the credibility of her story, thus:

"x x x But what I wanted to point out is the question of credibility. That is what we are here for. We want to determine if
it is credible for a 17-year-old college student of the Ateneo who belongs to a good family, whose father is a lawyer and
who could afford to live by herself in a Condominium Unit in Quezon City and that she would go to the Condominium
Unit of a man whom he just met the previous month, all alone by herself, at night and specifically on the very night July
16, 1997. x x x That is the question that I would like you to consider, x x x I assure you I have no doubts at all about her
moral character and I have the highest respect for Miss Montalvan. x x x."
Strong indication of Judge Ocampo's lack of predilection was his acquiescence for Lourdes Montalvan to clarify during
redirect examination why she found nothing wrong with being alone at Larrañaga's unit. We quote the proceedings of
November 19, 1998, thus:

ATTY. VILLARMIA:
When you went up you said you were alone. What was your feeling of going up to that room alone or that
Q
unit alone?

PROS. GALANIDA
We object, not proper for re-direct. That was not touched during the cross. That should have been asked
during the direct-examination of this witness, Your Honor.

ATTY. VILLARMIA:
We want to clarify why she went there alone.

COURT:
Precisely, I made that observation that does not affect or may affect the credibility of witness the fact
that she went there alone. And so, it is proper to ask her, di ba?

xxx

COURT:
What was your purpose? Ask her now - what was your purpose?

/to the witness:

Will you answer the question of the Court/ What was your purpose or intention in going in Paco's room
Q
that night alone?

WTNESS:
 My purpose for going there was to meet Richard, sir, and to follow-up whether we will go out later that
A
night or not. The purpose as to going there alone, sir, I felt, I trusted Paco.

PROS. DUYONGCO:
May we ask the witness not to elaborate, Your Honor.

ATTY. VILLARMIA:
That is her feeling.

COURT:
That was her purpose. It is proper."[96]
Appellants consider as violation of their right to due process Judge Ocampo's remarks labeling Rebecca Seno's and
Catalina Paghinayan's testimony as "incredible"[97] Clotilde Soterol as a "totally confused person who appears to be
mentally imbalanced;"[98] and Salvador Boton and Paulo Celso as "liars."[99]

Suffice it to state that after going over the pertinent transcript of stenographic notes, we are convinced that Judge
Ocampo's comments were just honest observations intended to warn the witnesses to be candid to the court. He made
it clear that he merely wanted to ascertain the veracity of their testimonies in order to determine the truth of the
matter in controversy.[100] That such was his purpose is evident from his probing questions which gave them the chance
to correct or clarify their contradictory statements. Even appellants' counsel de parte acknowledged that Judge
Ocampo's statements were mere "honest observations"[101] If Judge Ocampo uttered harsh words against those defense
witnesses, it was because they made a mockery of the court's proceedings by their deliberate lies. The frequency with
which they changed their answers to Judge Ocampo's clarificatory questions was indeed a challenge to his patience.

A trial judge is not a wallflower during trial. It is proper for him to caution and admonish witnesses when necessary and
he may rebuke a witness for levity or for other improper conduct.[102] This is because he is called upon to ascertain the
truth of the controversy before him.[103]

It bears stressing at this point that the perceived harshness and impatience exhibited by Judge Ocampo did not at all
prevent the defense from presenting adequately its side of the cases.

D. Right to Produce Evidence

Appellants assail the trial court's exclusion of the testimonies of four (4) airlines personnel[104] which were intended to
prove that Larrañaga did not travel to Cebu from Manila or from Cebu to Manila on July 16, 1997. The trial court's
exclusion of the testimonies is justified. By an alibi, Larrañaga attempted to prove that he was at a place (Quezon City)
so distant that his participation in the crime was impossible. To prove that he was not in the pre-flight and post-flight of
the four (4) major airlines flying the route of Cebu to Manila and Manila to Cebu on July 15 and 16, 1997 would not
prove the legal requirement of "physical impossibility" because he could have taken the flight from Manila to Cebu prior
to that date, such as July 14, 1997. According to Judge Ocampo, it was imperative for appellants' counsel to prove that
Larrañaga did not take a flight to Cebu before July 16, 1997.

In the same way, we cannot fault the trial court for not allowing the defense to continue with the" tedious process of
presenting additional witnesses to prove Larrañaga's enrollment at the Center for Culinary Arts, located at Quezon City,
from June 18, 1997 to July 30, 1997 considering that it would not also prove that he was not in Cebu on July 16 to 17,
1997. It is a known practice of students who are temporarily residing in Metro Manila to return to their provinces once
in a while to spend time with their families. To prove that Larrañaga was enrolled during a certain period of time does
not negate the possibility that he went home to Cebu City sometime in July 1997 and stayed there for a while.

Due process of law is not denied by the exclusion of irrelevant, immaterial, or incompetent evidence, or testimony of
an incompetent witness.[105] It is not error to refuse evidence which although admissible for certain purposes, is not
admissible for the purpose which counsel states as the ground for offering it.[106]
To repeat, due process is satisfied when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy.[107] In the present case, there is no showing of violation of due process which
justifies the reversal or setting aside of the trial court's findings.

II. The Improper Discharge of Rusia as an Accused

to be a State Witness

Appellants argue that Rusia is not qualified to be a state witness under paragraphs (d) and (e) of Section 9, Rule 119 of
the 1985 Rules on Criminal Procedure, which reads:

"Sec. 9. Discharge of the accused to be state witness. When two or more persons are jointly charged with the
commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of
the accused to be discharged with their consent so that they may be witness for the state when after requiring the
prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the
discharge, the court is satisfied that:

xxx

(d) Said accused does not appear to be most guilty;

(e) Said accused has not at anytime been convicted of any offense involving moral turpitude.

xxx"
Appellants claim that Rusia was the "most guilty of both the charges of rape and kidnapping" having admitted in open
court that he raped Jacqueline. Furthermore, Rusia admitted having been previously convicted in the United States of
third degree burglary.

It bears stressing that appellants were charged with kidnapping and illegal detention, Thus, Rusia's admission that
he raped Jacqueline does not make him the "most guilty" of the crimes charged. Moreover, far from being the
mastermind, his participation, as shown by the chronology of events, was limited to that of an oblivious follower who
simply "joined the ride" as the commission of the crimes progressed. It may be recalled that he joined the group upon
Rowen's promise that there would be a "big happening" on the night of July 16, 1997. All along, he thought the "big
happening" was just another "group partying or scrounging." In other words, he had no inkling then of appellants' plan
to kidnap and detain the Chiong sisters. Rusia retained his passive stance as Rowen and Josman grabbed Marijoy and
Jacqueline at the waiting shed of Ayala Center. He just remained seated beside the driver's seat, not aiding Rowen and
Josman in abducting the Chiong sisters. When Jacqueline attempted to escape 14 meters away from the waiting shed, it
was Josman who chased her and not Rusia. Inside the car, it was Rowen who punched and handcuffed the Chiong
sisters. At the safehouse of the "Josman Aznar Group," Rusia stayed at the living room while Larrañaga, James Anthony,
Rowen, and Josman molested Marijoy and Jacqueline on separate rooms. At Tan-awan, it was Josman who ordered
Rowen and Ariel to pushed Marijoy into the deep ravine. And Rusia did not even know what ultimately happened to
Jacqueline as he was the first to leave the group. Clearly, the extent of Rusia's participation in the crimes charged does
not make him the "most guilty."

The fact that Rusia was convicted of third degree burglary in Minessotta does not render his testimony
inadmissible.[108] In People vs. De Guzman[109] we held that although the trial court may have erred in discharging the
accused, such error would not affect the competency and the quality of the testimony of the defendant. In Mangubat
vs. Sandiganbayan,[110] we ruled:

"Anent the contention that Delia Preagido should not have been discharged as a state witness because of a 'previous
final conviction' of crimes involving moral turpitude, suffice it to say that 'this Court has time and again declared that
even if the discharged state witness should lack some of the qualifications enumerated by Section 9, Rule 119 of the
Rules of Court, his testimony will not, for that reason alone, be discarded or disregarded. In the discharge of a co-
defendant, the court may reasonably be expected to err; but such error in discharging an accused has been held not to
be a reversible one. This is upon the principle that such error of the court does not affect the competency and the
quality of the testimony of the discharged defendant."
Furthermore, it may be recalled that Rusia was extremely bothered by his conscience and was having nightmares about
the Chiong sisters, hence, he decided to come out in the open.[111] Such fact alone is a badge of truth of his testimony.

But, more importantly, what makes Rusia's testimony worthy of belief is the marked compatibility between such
testimony and the physical evidence. Physical evidence is an evidence of the highest order. It speaks eloquently than a
hundred witnesses.[112] The presence of Marijoy's ravished body in a deep ravine at Tan-awan, Carcar with tape on her
mouth and handcuffs on her wrists certainly bolstered Rusia's testimony on what actually took place from Ayala Center
to Tan-awan. Indeed, the details he supplied to the trial court were of such nature and quality that only a witness who
actually saw the commission of the crimes could furnish. What is more, his testimony was corroborated by several other
witnesses who saw incidents of what he narrated, thus: (1) Rolando Dacillo and Mario Minoza saw Jacqueline's two
failed attempts to escape from appellants; (2) Alfredo Duarte saw Rowen when he bought barbeque and Tanduay at
Nene's Store while the white van, driven by Alfredo Caño, was waiting on the side of the road and he heard voices of
"quarreling male and female" emanating from the van; (3) Manuel Camingao testified on the presence of Larrañaga and
Josman at Tan-awan, Carcar at dawn of July 17, 1997; and lastly, (4) Benjamin Molina and Miguel Vergara recognized
Rowen as the person who inquired from them where he could find a vehicle for hire, on the evening of July 16, 1997. All
these bits and pieces of story form part of Rusia's narration. With such strong anchorage on the testimonies of
disinterested witnesses, how can we brush aside Rusia's testimony?

Rusia's discharge has the effect of an acquittal.[113] We are not inclined to recall such discharge lest he will be placed in
double jeopardy. Parenthetically, the order for his discharge may only be recalled in one instance, which is when he
subsequently failed to testify against his co-accused. The fact that not all the requisites for his discharge are present is
not a ground to recall the discharge order. Unless and until it is shown that the he failed or refused to testify against
his co-accused, subsequent proof showing that any or all of the conditions listed in Sec. 9 of Rule 119 were not
fulfilled would not wipe away the resulting acquittal.[114]

III. Appreciation of the Evidence for the

Prosecution and the Defen

Settled is the rule that the assessment of the credibility of witnesses is left largely to the trial court because of its
opportunity, not available to the appellate court, to see the witnesses on the stand and determine by their demeanor
whether they are testifying truthfully or lying through their teeth. Its evaluation of the credibility of witnesses is well-
nigh conclusive on this Court, barring arbitrariness in arriving at his conclusions.[115]

We reviewed the records exhaustively and found no compelling reason why we should deviate from the findings of fact
and conclusion of law of the trial court. Rusia's detailed narration of the circumstances leading to the horrible death and
disappearance of Jacqueline has all the earmarks of truth. Despite the rigid cross-examination conducted by the defense
counsel, Rusia remained steadfast in his testimony. The other witnesses presented by the prosecution corroborated his
narration as to its material points which reinforced its veracity.

Appellants proffered the defense of denial and alibi. As between their mere denial and the positive identification and
testimonies of the prosecution witnesses, we are convinced that the trial court did not err in according weight to the
latter. For the defense of alibi to prosper, the accused must show that he was in another place at such a period of time
that it was physically impossible for him to have been at the place where the crime was committed at the time of its
commission.[116] These requirements of time and place must be strictly met.[117] A thorough examination of the
evidence for the defense shows that the appellants failed to meet these settled requirements. They failed to establish by
clear and convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the
Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James Anthony and
James Andrew were all within the vicinity of Cebu City on July 16, 1997.

Not even Larrañaga who claimed to be in Quezon City satisfied the required proof of physical impossibility. During the
hearing, it was established that it takes only one (1) hour to travel by plane from Manila to Cebu and that there are
four (4) airline companies plying the route. One of the defense witnesses admitted that there are several flights from
Manila to Cebu each morning, afternoon and evening. Taking into account the mode and speed of transportation, it is
therefore within the realm of possibility for Larrañaga to be in Cebu City prior to or exactly on July 16, 1997. Larrañaga's
mother, Margarita Gonzales-Larrañaga, testified that his son was scheduled to take a flight from Manila to Cebu on July
17, 1997 at 7:00 o'clock in the evening, but he was able to take an earlier flight at 5:00 o'clock in the afternoon.
Margarita therefore claimed that his son was in Cebu City at around 6:00 o'clock in the evening of July 17, 1997 or the
day after the commission of the crime. However, while Larrañaga endeavored to prove that he went home to Cebu City
from Manila only in the afternoon of July 17, 1997, he did not produce any evidence to show the last time he went to
Manila from Cebu prior to such crucial date. If he has a ticket of his flight to Cebu City on July 17, 1997, certainly, he
should also have a ticket of his last flight to Manila prior thereto. If it was lost, evidence to that effect should have been
presented before the trial court.

Indeed, Larrañaga's presence in Cebu City on July 16, 1997 proved to be not only a possibility but a reality. No less than
four (4) witnesses for the prosecution identified him as one of the two men talking to Marijoy and Jacqueline on the
night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening, she saw Larrañaga
approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of Jacqueline's prior
story that he was Marijoy's admirer. She (Shiela) confirmed that she knows Larrañaga since she had seen him on five (5)
occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00 o'clock, she saw
Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center. She recognized them as Larrañaga
and Josman, having seen them several times at Glicos, a game zone, located across her office at the third level of Ayala
Center. Williard Redobles, the security guard then assigned at Ayala Center, corroborated the foregoing testimonies of
Shiela and Analie. In addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larrañaga at Tan-
awan at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van.[118]

Taking the individual testimonies of the above witnesses and that of Rusia, it is reasonable to conclude that Larrañaga
was indeed in Cebu City at the time of the commission of the crimes and was one of the principal perpetrators.

Of course, we have also weighed the testimonial and documentary evidence presented by appellants in support of their
respective alibi. However, they proved to be wanting and incredible.

Salvador Boton, the security guard assigned at the lobby of Loyola Heights Condominium, testified on the entry of
Larrañaga's name in the Condominium's logbook to prove that he was in Quezon City on the night of July 16, 1997.
However, a cursory glance of the entry readily shows that it was written at the uppermost portion of the logbook and
was not following the chronological order of the entries. Larrañaga's 10:15 entry was written before the 10:05 entry
which, in turn, was followed by a 10:25 entry. Not only that, the last entry at the prior page was 10:05. This renders the
authenticity of the entries doubtful. It gives rise to the possibility that the 10:15 entry was written on a later date when
all the spaces in the logbook were already filled up and thus, the only remaining spot was the uppermost portion.
Surprisingly, the alleged arrival of Larrañaga and his friend Richard Antonio at the Loyola Heights Condominium in the
early evening of July 16, 1997 was not recorded in the logbook.

Rowena Bautista, a teacher at the Center for Culinary Arts, Quezon City, testified that Larrañaga attended her lecture on
Applied Mathematics on July 16, 1997 from 8:00 o'clock to 11:30 in the morning.[119] This runs counter to Larrañaga's
affidavit[120] stating that on the said date, he took his mid-term examinations in the subject Fundamentals of Cookery
from 8:00 o'clock in the morning to 3:30 o'clock in the afternoon.

With respect to Larrañaga's friends, the contradictions in their testimonies, painstakingly outlined by the Solicitor
General in the appellee's brief, reveal their unreliability. To our mind, while it may be possible that Larrañaga took the
mid-term examinations in Fundamentals of Cookery and that he and his friends attended a party at the R and R Bar and
Restaurant, also in Quezon City, however it could be that those events occurred on a date other than July 16, 1997.
Clotilde Soterol, in defense of Ariel and Alberto (the driver and the conductor of the van) attempted to discredit Rusia's
testimony by testifying that the white van with plate no. GGC-491 could not have been used in the commission of the
crimes on the night of July 16, 1997 because it was parked in her shop from 7:00 o'clock in the evening of the same date
until 11:00 o'clock in the morning of July 17, 1997. What makes Soterol's testimony doubtful is her contradicting
affidavits. In the first affidavit dated July 28, 1997, or twelve (12) days from the occurrence of the crime, she stated
that Alberto took the van from her shop at 3:00 o'clock in the afternoon of July 16, 1997 and returned it for repair
only on July 22, 1997.[121] But in her second affidavit dated October 1, 1997, she declared that Alberto left the van in her
shop at 7:00 o'clock in the evening of July 16, 1997 until 11:00 o'clock in the morning of July 17, 1997.[122] Surely, we
cannot simply brush aside the discrepancy and accept the second affidavit as gospel truth.

Appellants attempted to establish their defense of alibi through the testimonies of relatives and friends who obviously
wanted them exculpated of the crimes charged. Naturally, we cannot but cast an eye of suspicion on their testimonies.
In People vs. Ching,[123] we ruled that it is but natural, although morally unfair, for a close relative to give weight to blood
ties and close relationship in times of dire needs especially when a criminal case is involved.

Rusia positively identified the appellants. The settled rule is that positive identification of an accused by credible
witnesses as the perpetrator of the crime demolishes alibi, the much abused sanctuary of felons.[124] Rusia's testimony
was corroborated by several disinterested witnesses who also identified the appellants. Most of them are neither
friends, relatives nor acquaintances of the victims' family. As we reviewed closely the transcript of stenographic notes,
we could not discern any motive on their part why they should testify falsely against the appellants. In the same vein, it
is improbable that the prosecution would tirelessly go through the rigors of litigation just to destroy innocent lives.

Meanwhile, appellants argue that the prosecution failed to prove that the body found at the foot of a deep ravine in
Tan-awan, Carcar was that of Marijoy. We are not convinced. Rusia testified that Josman instructed Rowen "to get rid"
of Marijoy and that following such instruction, Rowen and Ariel pushed her into the deep ravine. Furthermore, Inspector
Edgardo Lenizo,[125] a fingerprint expert, testified that the fingerprints of the corpse matched those of Marijoy.[126] The
packaging tape and the handcuff found on the dead body were the same items placed on Marijoy and Jacqueline while
they were being detained.[127] The body had the same clothes worn by Marijoy on the day she was abducted.[128] The
members of the Chiong family personally identified the corpse to be that of Marijoy [129] which they eventually buried.
They erected commemorative markers at the ravine, cemetery and every place which mattered to Marijoy. Indeed,
there is overwhelming and convincing evidence that it was the body of Marijoy that was found in the ravine.

Appellants were charged with the crime of kidnapping and serious illegal detention in two (2) Informations and were
convicted thereof. Article 267 of the Revised Penal Code, as amended by Section 8 of R.A. 7659, reads:

"Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any
other manner deprive him of liberty, shall suffer the penalty of reclusion perpetua to death;
1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill
him shall have been made.

4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a
public officer.
"The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from
the victim or any other person, even if none of the circumstances above mentioned were present in the commission of
the offense.

"When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed
The elements of the crime defined in Art. 267 above are: (a) the accused is a private individual; (b) he kidnaps or detains
another, or in any manner deprives the latter of his liberty;
(c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense, any of the four (4)
circumstances mentioned above is present.[130]

There is clear and overwhelming evidence that appellants, who are private individuals, forcibly dragged Marijoy and
Jacqueline into the white car, beat them so they would not be able to resist, and held them captive against their will. In
fact, Jacqueline attempted to free herself twice from the clutches of appellants the first was near the Ayala Center and
the second was in Tan-awan, Carcar but both attempts failed. Marijoy was thrown to a deep ravine, resulting to her
death. Jacqueline, on the other hand, has remained missing until now.

Article 267 states that if the victim is killed or died as a consequence of the detention, or is raped or subjected to torture
or dehumanizing acts, the maximum penalty shall be imposed. In People vs. Ramos,[131] citing Parulan vs.
Rodas,[132] and People vs. Mercado,[133] we held that this provision given rise to a special complex crime, thus:

"Prior to 31 December 1993, the date of effectivity of RA No. 7659, the rule was that where the kidnapped victim was
subsequently killed by his abductor, the crime committed would either be a complex crime of kidnapping with murder
under Art 48 of the Revised Penal Code, or two (2) separate crimes of kidnapping and murder. Thus, where the accused
kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed was
the complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, as the kidnapping of the victim
was a necessary means of committing the murder. On the other hand, where the victim was kidnapped not for the
purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder
were committed.

However, RA No. 7659 amended Art. 267 of The Revised Penal Code by adding thereto a last paragraph which
provides
When the victim is killed or dies as a consequence of the detention, or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed.
This amendment introduced in our criminal statutes, the concept of 'special complex crime' of kidnapping with
murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing
of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not
deliberately resorted to but was merely an afterthought. Consequently, the rule now is: Where the person kidnapped
is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an
afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as
separate crimes, but shall be punished as a special complex crime under the last paragraph of Art. 267, as amended by
RA No. 7659."
The prosecution was able to prove that Marijoy was pushed to a ravine and died. Both girls were raped by the gang. In
committing the crimes, appellants subjected them to dehumanizing acts. Dehumanization means deprivation of human
qualities, such as compassion.[134] From our review of the evidence presented, we found the following dehumanizing acts
committed by appellants: (1) Marijoy and Jacqueline were handcuffed and their mouths mercilessly taped; (2) they were
beaten to severe weakness during their detention; (3) Jacqueline was made to dance amidst the rough manners and
lewd suggestions of the appellants; (4) she was taunted to run and forcibly dragged to the van; and 5) until now,
Jacqueline remains missing which aggravates the Chiong family's pain. All told, considering that the victims were raped,
that Marijoy was killed and that both victims were subjected to dehumanizing acts, the imposition of the death penalty
on the appellants is in order.

Thus, we hold that all the appellants are guilty beyond reasonable doubt of the special complex crime of kidnapping and
serious illegal detention with homicide and rape in Criminal Case No. CBU-45303 wherein Marijoy is the victim; and
simple kidnapping and serious illegal detention in Criminal Case No. CBU-45304 wherein Jacqueline is the victim.

A discussion on the nature of special complex crime is imperative. Where the law provides a single penalty for two or
more component offenses, the resulting crime is called a special complex crime. Some of the special complex crimes
under the Revised Penal Code are (1) robbery with homicide,[135] (2) robbery with rape,[136] (3)kidnapping with serious
physical injuries,[137] (4) kidnapping with murder or homicide,[138] and (5) rape with homicide.[139] In a special complex
crime, the prosecution must necessarily prove each of the component offenses with the same precision that would be
necessary if they were made the subject of separate complaints. As earlier mentioned, R.A. No. 7659 amended Article
267 of the Revised Penal Code by adding thereto this provision: "When the victim is killed or dies as a consequence of
the detention, or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed;
and that this provision gives rise to a special complex crime. In the cases at bar, particularly Criminal Case No. CBU-
45303, the Information specifically alleges that the victim Marijoy was raped "on the occasion and in connection" with
her detention and was killed "subsequent thereto and on the occasion thereof." Considering that the prosecution was
able to prove each of the component offenses, appellants should be convicted of the special complex crime of
kidnapping and serious illegal detention with homicide and rape. It appearing from the overwhelming evidence of the
prosecution that there is a "direct relation, and intimate connection"[140] between the kidnapping, killing and raping of
Marijoy, rape cannot be considered merely as an aggravating circumstance but as a component offense forming part of
the herein special complex crime. It bears reiterating that in People vs. Ramos,[141] and People vs.
Mercado,[142] interpreting Article 267, we ruled that "where the person killed in the course of the detention, regardless
of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide
can no longer be complexed under Article 48, nor be treated as separate crimes, but shall be punished as a special
complex crime under the last paragraph of Article 267." The same principle applies here. The kidnapping and serious
illegal detention can no longer be complexed under Article 48, nor be treated as separate crime but shall be punished
as a special complex crime. At any rate, the technical designation of the crime is of no consequence in the imposition
of the penalty considering that kidnapping and serious illegal detention if complexed with either homicide or rape,
still, the maximum penalty of death shall be imposed.

Anent Criminal Case No. CBU-45304 wherein Jacqueline is the victim, the penalty of reclusion perpetua shall be imposed
upon appellants considering that the above-mentioned component offenses were not alleged in the Information as
required under Sections 8 and 9,[143] Rule 110 of the Revised Rules of Criminal Procedure. Consistent with appellants'
right to be informed of the nature and cause of the accusation against him, these attendant circumstances or
component offenses must be specifically pleaded or alleged with certainty in the information and proven during the
trial. Otherwise, they cannot give rise to a special complex crime, as in this case. Hence, the crime committed is only
simple kidnapping and serious illegal detention.

From the evidence of the prosecution, there is no doubt that all the appellants conspired in the commission of the
crimes charged. Their concerted actions point to their joint purpose and community of intent. Well settled is the rule
that in conspiracy, direct proof of a previous agreement to commit a crime is not necessary. It may be deduced from the
mode and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when
such point to a joint design and community of interest.[144] Otherwise stated, it may be shown by the conduct of the
accused before, during, and after the commission of the crime.[145] Appellants' actions showed that they have the same
objective to kidnap and detain the Chiong sisters. Rowen and Josman grabbed Marijoy and Jacqueline from the vicinity
of Ayala Center. Larrañaga, James Andrew and James Anthony who were riding a red car served as back-up of Rowen
and Josman. Together in a convoy, they proceeded to Fuente Osmeña to hire a van, and thereafter, to the safehouse of
the "Jozman Aznar Group" in Guadalupe, Cebu where they initially molested Marijoy and Jacqueline. They headed to the
South Bus Terminal where they hired the white van driven by Alberto, with Ariel as the conductor. Except for James
Andrew who drove the white car, all appellants boarded the white van where they held Marijoy and Jacqueline captive.
In the van, James Anthony taped their mouths and Rowen handcuffed them together. They drank and had a pot session
at Tan-awan. They encircled Jacqueline and ordered her to dance, pushing her and ripping her clothes in the process.
Meanwhile, Larrañaga raped Marijoy, followed by Rowen, James Anthony, Alberto, and Ariel. On other hand, Josman
and James Andrew raped Jacqueline. Upon Josman's order, Rowen and Ariel led Marijoy to the cliff and pushed her.
After leaving Tan-awan, they taunted Jacqueline to run for her life. And when Rusia got off from the van near Ayala
Center, the appellants jointly headed back to Cebu City.

Clearly, the argument of Rowen, Ariel and Alberto that they were not part of the "conspiracy" as they were merely
present during the perpetration of the crimes charged but not participants therein, is bereft of merit. To hold an accused
guilty as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or
furtherance of the complicity.[146] There must be intentional participation in the transaction with a view to the
furtherance of the common design and purpose.[147] Responsibility of a conspirator is not confined to the
accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing
out of the purpose intended.[148] As shown by the evidence for the prosecution, Rowen, Ariel and Alberto were not
merely present at the scene of the crime.

Indeed, all appellants, except James Anthony who was 16 years old when the crimes charged were committed, share the
same degree of responsibility for their criminal acts. Under Article 68[149] of the Revised Penal Code, the imposable
penalty on James Anthony, by reason of his minority, is one degree lower than the statutory penalty. This means that he
stands to suffer the penalty of reclusion perpetua in Criminal Case No. CBU-45303 and twelve (12) years of prision
mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as
maximum, in Criminal Case No. CBU-45304. The penalty for the special complex crime of kidnapping and serious illegal
detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.[150] On the other
hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower
from the said penalty is reclusion temporal.[151] There being no aggravating and mitigating circumstance, the penalty to
be imposed on James Anthony is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he
should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to
seventeen (17) years of reclusion temporal in its medium period, as maximum.[152]

As for the rest of the appellants, the foregoing established facts call for the imposition on them of the death penalty in
Criminal Case No. CBU-45303 and reclusion perpetua in Criminal Case No. CBU-45304. It is therefore clear that the trial
court erred in merely imposing "two (2) Reclusiones Perpetua," rationalizing that justice must be tempered with mercy.
We must be reminded that justice is not ours to give according to our sentiments or emotions. It is in the law which we
must faithfully implement.

At times we may show compassion and mercy but not at the expense of the broader interest of fair play and justice.
While we also find it difficult to mete out the penalty of death especially on young men who could have led productive
and promising lives if only they were given enough guidance, however, we can never go against what is laid down in our
statute books and established jurisprudence.

In keeping with the current jurisprudence, the heirs of Marijoy and Jacqueline are entitled to the amount of P100,000.00
in each case by way of civil indemnity ex delicto.[153] As regards the actual damages, it appears that the award of
P200,000.00 is not supported by evidence. To be entitled to actual damages, it is necessary to prove the actual amount
of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable to
the injured party.[154] Thus, in light of the recent case of People vs. Abrazaldo,[155] we grant the award of P25,000.00
as temperate damages in each case, in lieu of actual damages. There being proofs that the victims' heirs suffered
wounded feelings, mental anguish, anxiety and similar injury, we award an equitable amount of P150,000.00 as moral
damages, also in each case. Exemplary damages is pegged at P100,000.00 in each case[156] to serve as a deterrent to
serious wrongdoings and as a vindication of undue sufferings and wanton invasion of the rights of the victims and as
punishment for those guilty of outrageous conduct.

WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU-45303 and 45304
is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAוAGA alias "PACO;" JOSMAN AZNAR; ROWEN
ADLAWAN alias "WESLEY;" ALBERTO CAוO alias "ALLAN PAHAK;" ARIEL BALANSAG; and JAMES ANDREW UY alias
"MM," are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal
detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAוAGA alias "PACO;" JOSMAN AZNAR; ROWEN
ADLAWAN alias "WESLEY;" ALBERTO CAוO alias "ALLAN PAHAK;" ARIEL BALANSAG; and JAMES ANDREW UY alias
"MM," are found guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are sentenced
to suffer penalty of RECLUSION PERPETUA;
(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY, who was a minor at the time the crime was
committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious
illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in
Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to
suffer the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years
of reclusion temporal in its medium period, as MAXIMUM.

(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts
of (a) P100,000.00 as civil indemnity, (b) P25,000.00 as temperate damages, (c) P150,000.00 as moral damages, and (d)
P100,000.00 as exemplary damages.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death
penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can
be lawfully imposed in the case at bar.

In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of
this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise
of Her Excellency's pardoning power.

SO ORDERED.